HomeMy WebLinkAbout04-25-14 � .� Cindy L.Villanella,Esq.
Carrucoli&Associates,P.C.
875 Market Street
Lemoyne,PA 17043
(717)761-1274 `"'`f°`�
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND CI�iLI��, � tn �,
PENNSYLVANIA �' � � rv ��! �
ORPHANS' COURT DIVISION �,� �� -� ` `J' ��"� �
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IN RE ESTATE OF: �, -�-� �"' �. rn
JEANNE SCHWARTZ NO.: 2012-0536 �' ^� � �
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INHERITANCE TAX APPEAL
APPEAL PURSUANT TO 42 Pa. C.S. §933(a)(1)(vi)
AND NOW, comes the Petitioner,Nancy Nixon, Executrix of the Estate of Jeanne
Schwartz, hereby and through her attorney, Cindy L.Villanella, Esq., of Carrucoli &Associates,
P.C., and files this Appeal of which the following is a statement:
1. The Decedent, Jeanne Schwartz,passed away on April 14, 2012.
2. By Will dated December 31, 1981,Nancy Nixon(hereinafter"Petitioner") was
appointed as Executrix of the Decedent's Estate.
3. Letters were granted to Petitioner as Executrix of the Decedent's Estate on May 8,
2012.
4. Petitioner is additionally a beneficiary under Decedent's Will and on any and all
of the Decedent's retirement accounts.
5. Petitioner and Decedent cohabitated together for over thirty years and have held
themselves out as a married couple since 1981.
, �
'" Cindy L.Villanella,Esq.
, � � Carrucoli&Associates,P.C.
875 Market Street
Lemoyne,PA 17043
(717)761-1274
6. Petitioner and Decedent have jointly owned property including, but not limited to,
real property, vehicles, and checking and savings accounts since 1981 and have comingled assets
in pursuit of a joint life together as any married couple.
7. Now, due to Decedent's death,the state is attempting to impose an Inheritance
Tax on Petitioner of$21,012.92 (with interest and penalty $21,730.82).
8. Petitioner filed a protest to the amount of Inheritance Tax on May 1, 2013. A
hearing was held on October 30, 2013 in front of Hearing Officer Jeffrey Hollenbush and Board
Member Lauren Zaccarelli.
9. An opinion was issued on February 25, 2014 denying Petitioner's claim for
common law marriage and failing to address the claim that failing to allow same-sex couple's
equal access to the laws of the Commonwealth is unconstitutional. The Opinion is attached
hereto and incorporated herein as Exhibit A.
10. Due to Pennsylvania's Marriage Law(23 Pa.C.S.A. §1101 et seq.), Petitioner and
Decedent were unable to marry in violation of their fundamental rights under the Pennsylvania
Constitution(Article I, §26) and the United States Constitution(St" and 14t" Amendments).
11. Due to the inability to marry, Petitioner and Decedent held themselves out and
considered themselves as a married couple. They lived as any married couple would, sharing in
expenses, comingling assets and jointly owning property.
12. Petitioner and Decedent are being treated differently due to Pennsylvania's
unconstitutional laws and Pennsylvania is requiring Petitioner to pay inheritance tax on money
that she helped accrue and has already paid income tax on during her lifetime with her spouse.
" � Cindy L.Villanella, Esq.
, , � Carrucoli&Associates,P.C.
875 Market Street
Lemoyne,PA 17043
(717)761-1274
13. The Pennsylvania Department of Revenue refused to address the issue of
unconstitutionality of Pennsylvania's law and, it is therefore assumed that, based upon the
Amicus Curiae Brief filed on March 24, 2014, by Pennsylvania Treasurer Robert M. McCord,
under the Docket Number 2:13-cv-05641-MAM, the Department of Revenue is also of the
position that the Pennsylvania Marriage Law is a discriminatory law and acts to disadvantage
same-sex couples. The Amicus Curiae Brief is attached hereto and incorporated herein as
Exhibit B.
14. Petitioner is requesting that this Honorable Court find that Pennsylvania's
Marriage Law is unconstitutional and deprives same-sex couples of the rights afforded to other
citizens of the Commonwealth as a separate class.
15. Petitioner is further requesting that this Honorable Court recognizes that
Petitioner and Decedent were in a common law marriage that began in 1981 and, therefore,
inheritance tax is shall not be imposed.
, ,
� ' Cindy L.Villanella,Esq.
Carrucoli&Associates, P.C.
� 'a 875 Market Street
Lemoyne, PA 17043
(717)761-1274
WHEREFORE, Petitioner is requesting this Honorable Court find:
1. Pennsylvania's Marriage Law unconstitutional;
2. that Petitioner and Decedent were common law married since 1981; and
3. the imposition of inheritance tax upon Petitioner is invalid.
Respectfully submitted,
' y . ill , Esq.
C co Associates, P. .
Su eme Court ID # 2023 5
875 Market Street, Suite 200
Lemoyne, PA 17043
(717)761-1274
~ Cindy L.Villanella,Esq.
' � -+ Carrucoli&Associates,P.C.
875 Market Street
Lemoyne,PA 17043
(717)761-1274
VERIFICATION
I,Nancy Nixon, hereby verify that the facts and information set forth in the foregoing
Appeal are true and correct to the best of my knowledge, information and belief. I understand
that any false statements contained herein are subject to unsworn falsification to authorities.
.-'�,,�CL. L:( �c - '��x�'L.
E.
NANCY NIXON
_ _
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BOARD OF APPEALS �� � � pennsylvan�a
P O Box 281021
HARRISBURG, PA 17128-1021 � DEPARTMENT OF REVENUE
°�.___..,,...._I
BOARD OF APPEALS
CINDY VILLANELLA IN RE ESTATE OF:
CARRUCOLI AND ASSOCIATES SCHWARTZ JEANNE
875 MARKET ST
LEMOYNE, PA 17043 DOCKET NO. : 1308642
TAX TYPE: Inheritance
APPEAL TYPE Protest
FILE NUMBER: 2112-0536
ACN: 101
APPRAISEMENT: 3/25/2013
PETITION FILED: 5/1/2013
EXAMINER: JEFFREY HOLLENBUSH
Direct Dial: (717) 783-7891
Fax: (717) 787-7270
Email:jhollenbus@pa.gov
MAILING DATE: February 25, 2014
DECISION AND ORDER
On March 25, 2013, the Department issued an appraisement and
assessment for the original Inheritance Tax return filed on January 14, 2013.
The appraisement assessed tax at the 15% collateral tax rate on the transfer of
8ssets to Nancy Nixon, the residuary beneficiary of the estate and the surviving
tenant of assets held as joint tenants with riyht of survivorship. The Petitioner
filed this protest on May 1, 2013.
Petitioner requested and received a hearing on October 30, 2013, at the
office of the Board of Appeals. Appearing on behalf of the Petitioner was Cindy
Villanella, Esquire, and Nancy Nixon, executrix of the estate. Also attending as
a witness was Kathy Smith, the decedent's daughter. Petitioner, by phone,
conferenced in Mr. Michael 0'Brian as a witness. Present on behalf of the
� �� ���� ��
�' SCHWARTZ JEANNE Page 2 of 5
� � �• BOARD DOCKET N0. 1308642
Commonwealth was Jeffrey Hollenbush, hearing officer and Lauren A.
Zaccarelli, Board member.
Petitioner argues that she and the decedent lived together as domestic
partners and that they considered themselves to be married as common law
spouses. Petitioner further argues that to treat a same sex couple meeting the
elements of common law marriage for inheritance tax purposes differently than
a heterosexual couple meeting the elements of a common law marriage violates
the civil rights provision of Article I, §26 of the Pennsylvania Constitution and
the equal protection clause of the 5th and 14th amendments of the United States
Constitution.
The Board will first review whether the relationship between the Petitioner
and the decedent met the elements of a common law marriage. The issue of
whether a common law marriage existed remains an often-litigated question.
Because courts have regarded common law marriages as a fruitful source of
fraud and perjury, to be tolerated but not encouraged, the law imposes a heavy
burden on one who grounds his or her c{aim on an allegation of common law
marriage. Manfredi Estate, 399 Pa. 285, 159 A.2d 697 (1960); Wagner Estate,
398 Pa. 531, 159 A.2d 495 (1960); Baker v. Mitchell, 143 Pa. Super. 50, 17
A.2d 738 (1940). This is especially so where one of the parties is dead and the
claim, so grounded, is to share in the distribution of the estate. Manfredi
Estate, supra; Baker v. Mitchell, supra. To find a common law marriage
existed, the Board deems it necessary to review the elements required of such
Board of Appeals
PO Box 281021 � Harrisburg, PA 17128 � 717.783.3664 � www.revenue.state.pa.us
�
�' SCHWARTZ JEANNE Page 3 of 5
� � -• BOARD DOCKET NO. 1308642
a marriage. ��A common law marriage must be created by an exchange of
words in the present tense, verba de praesenti, spoken with a specific purpose
that the legal relationship of husband and wife be thereby created." Com. v.
Smith, 511 Pa. 343, 513 A.2d 1371 (1986), cert. denied Smith v. Pennsylvania,
480 U.S. 951.
A contract of common law marriage does not require any specific form of
words; proof of an agreement to enter into the legal relationship of marriage at
the present time is essential. Stauffer Estate, 504 Pa. 626, 476 A.2d 354
(1984). However, since the present tense words are often difficult to prove,
there is a rebuttable presumption of marriage when two absolutely essential
elements are conjoined and co-exist: constant, as distinguished from irregular
or inconstant cohabitation, plus reputation of marriage, which is not partial or
divided but broad in general. Rees Estate, 331 Pa. Super. 225 (1984).
However, a finding of marriage based upon reputation and cohabitation
alone is one of necessity to be applied only in cases where other proof is not
available. Cohabitation and reputation alone do not create a marriage, but are
mere circumstances from which a marriage may be inferred and rebutted by
other facts and circumstances. Canute v. Canute, 384 Pa. Super. 60, 557 A.2d
772 (1989); Steadman v. Turner, 357 Pa. Super. 361, 516 A.2d 21 (1986),
appeal denied 515 Pa. 624, 531 A.2d 431. Inconsistent statements may also
be a sufficient basis to refute the presumption of the creation of a marriage.
Rees, supra; Gavula, supra.
Board of Appeals
PO Box 281021 � Harrisburg, PA 17128 � 717.783.3664 � www.revenue.state.pa.us
i
� SCHWARTZ JEANNE Page 4 of 5
� � BOARD DOCKET NO. 1308642
Petitioner submitted various documents, her testimony and the testimony
of third parties to support her argument that she and the decedent met the
elements of a common law marriage. The documentation submitted includes
the decedent's will and power of attorney. The decedent's will refers to Nancy
Nixon as the decedent's closest and dearest companion. The decedent's power
_ of attorney refers to Nancy Nixon as the decedent's friend. Petitioner also
testified and provided documentation that assets such as real estate and bank
accounts were held jointly and that expenses were shared. Petitioner also
testified that she and decedent had discussed whether to get married in
another state; the decedent's illness, however, eventually prevented them from
getting married in another state.
Upon review of the documents and testimony submitted, the Board
concludes that the acquisition of assets jointly and the sharing of expenses is
not sufficient evidence to establish the elements of a common law marriage.
Accordingly, the Board finds that the Petitioner has failed to prove that the
relationship between her and the decedent met the elements of a common law
marriage.
Given the Board's determination that Petitioner has not proven that the
elements of a common law marriage have been met, there is no need for the
Board to address other issue(s) raised by Petitioner.
Board of Appeals
PO Box 281021 � Harrisburg, PA 17128 � 717.783.3664 � www.revenue.state.pa.us
�
"' SCHWARTZ JEANNE Page 5 of 5
I � BOARD DOCKET N0. 1308642
In the opinion of this Board, the imposition of tax at the 15% collateral
rate is appropriate. Accordingly, it is hereby, Ordered that the protest is
denied. The appraisement and assessment shall stand as filed.
FOR THE BOARD OF APPEALS
LAUREN A ZACCARELLI, CHAIR
ANY APPEAL FROM THIS DECISION MUST BE FILED WITH THE ORPHANS'
COURT WITHIN SIXTY (60) DAYS UF RECEIPT OF THIS DECISION. A COPY OF
THE APPEAL SHOULD BE SERVED ON THE DEPARTMENT OF REVENUE, OFFICE
OF CHIEF COUNSEL, P.O. BOX 281061, HARRISBURG, PA 17128-1061.
ANY APPLICABLE NOTICE REFLECTING ANY CHANGES TO THE ACCOUNT
PURSUANT TO THE BOARD'S DECISION AND ORDER MAY BE MAILED TO YOU
BY THE APPROPRIATE BUREAU.
IF YOU REQUIRE THIS INFORMATION IN AN ALTERNATE FORMAT UNDER THE
PROVISIONS OF AMERICANS WITH DISABILITIES ACT OF 1990, PLEASE CALL
(717) 783-3664, OR FOR SERVICES FOR TAXPAYERS WITH SPECIAL HEARING
AND SPEAKING NEEDS: 1-800-447-3020 (TT ONLY).
eoard of Appeals
PO Box 281021 � Harrisburg, PA 17128 � 717.783.3664 � www.revenue.state.pa.us
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Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 1 of 25
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CARA PALLADINO and ISABELLE .
BARKER, .
. CIVIL ACTION
Plaintiffs, .
v. .
. No. 2:13-cv-05641-MAM
THOMAS W. CORBETT, in his official .
capacity as Governor of Pennsylvania, .
and his successors in office; and .
KATHLEEN KANE, in her official .
capacity as Attorney General of .
Pennsylvania, and her successors in office, .
Defendants. .
BRIEF OF AMICUS CURIAE,
PENNSYLVANIA TREASURER ROBERT M. McCORD
Christopher B. Craig
Chief Counsel
Pa. Bar I.D.No. 65203
Pennsylvania Treasury Department
127 Finance Building
Harrisburg, PA 17120
ccrai�a,patceasury_pov
717.787.2740
Kathryn M. Cerulli,Assistant Counsel
On the Brief
,�( IT"
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,�
Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 2 of 25
� � k
TABLE OF CONTENTS
SPECIAL INTEREST OF AMICUS CURIAE ....................................................................1
ARGUMENT.........................................................................................................................3
I. Pennsylvania's Marriage Law creates two distict classes of
marriage. ...................................................................................................................3
II. Pennsylvania's Marriage Law compels the unequal treatment of same—
Sex couples in accessing state-sponsored programs and benefits
administrered by the State Treasurer. .......................................................................5
A. Abandoned and Unclaimed Property.............................................................6
1. Intestate Succession...........................................................................7
2. Tenancy by the Entireties...................................................................9
B. Tuition Account Program ............................................................................10
C. Public Employee Retirement Benefits.........................................................11
D. Administrative Appeals of Department of Revenue
Decisions......................................................................................................13
E. State Treasury Employee Benefit Access....................................................15
F. CONCLUSION............................................................................................17
Exhibit 1
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Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 3 of 25
TABLE OF AUTHORITIES
Case Law
Clingerman v. Sadowski, 513 Pa. 179, 183, 519 A.2d 378, 380 (1986) .............................10
Gilliland v. Gilliland, 751 A.2d 1169, 1172 (Pa. Super. Ct. 2000).....................................10
Hoptowit v. Ray, 682 F.2d 1237, 1260 (9`h Cir. 1982)...........................................................3
Isherwood v. Springs First Nat'I Bank, 365 Pa. 225, 74 A.2d 89 (1950)............................10
Liberty Res.,, Inc. v. Phila. Hous. Auth., 395 F. Supp 2d. 206, 209 (E.D. Pa. 2005)............3
Loving v. Virginia, 388 U.S. 1 ,12, 87 S. Ct. 1817, 1823-24 (1967). .............................4, 17
Mardis v. Steen, 293 Pa. 13, 141 A. 629 (1928) .................................................................10
United States v. Windsor, 133 S. Ct. 2675,2693 (2013).....................................................17
Wylie v. Zimmer, 98 F. Supp. 298,299 (E.D. Pa. 1951) .....................................................10
Zomisky v. Zamiska, 449 Pa. 239, 242, 296, A.2d 722, 723 (1972) ...................................10
Statutes
20 Pa.C.S.A. §§ 2101-2114 ..................................................................................................7
20 Pa.C.S.A. §§ 2102 ............................................................................................................5
20 Pa.C.S.A. §§ 2102-2103 ...................................................................................................8
20 Pa.C.S.A. § 2103(6) .........................................................................................................8
20 Pa.C.S.A.§ 3101(a).........................................................................................................15
20 Pa.C.S.A. § 3101 (e)(1)(i)-(iii) (emphasis added) ...........................................................8
20 Pa.C.S.A. § 3155(b)(2) ....................................................................................................7
20 Pa.C.S.A. § 5461�d)�1)�i)). ...............................................................................................5
ii
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Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 4 of 25
23 Pa.C.S.A. §§ 1101 et seq. ................................................................................................. 4
23 Pa. C.S.A. § 1102..........................................................................................................3,4
23 Pa.C.S.A. § 1105 ..............................................................................................................1
23 Pa.C.S.A. § 1301(a)..........................................................................................................4
23 Pa. C.S.A. § 1704..........................................................................................................3, 5
24 Pa.C.S.A. § 8501.........................................................................................................2, 11
24 Pa.C.S.A. § 8502.2(a) (emphasis added) .......................................................................13
24 Pa.C.S.A.§ 8505(h)(PSERS)...........................................................................................12
24 P.S. § 6901.101 et seq.....................................................................................................10
24 P.S.§ 6901301(5) ...........................................................................................................11
24 P.S. § 6901.304 ................................................................................................................2
� 42 Pa.C.S.A.§ 5913................................................................................................................5
68 P.S. § 101 ..........................................................................................................................9
71 Pa.C.S.A. §5901..........................................................................................................2, 11
71 Pa.C.S.A. § 5905�g)�SERS)............................................................................................12
72 P.S. §§ 301-304 ................................................................................................................1
72 P.S. § 1301.1 .....................................................................................................................7
72 P.S. § 1301.1 et seq. .....................................................................................................2, 6
72 P.S. §§ 1301.3— 1301.10..................................................................................................7
72 P.S. § 1301.9(1) ................................................................................................................9
72 P.S. § 1301.19 ..................................................................................................................7
72 P.S. § 1301.20(a) ..............................................................................................................7
72 P.S.§ 8102-C...................................................................................................................13
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Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 5 of 25
72 P.S. § 8102-C.3(6) (emphasis added) .............................................................................14
72 P.S. §§ 9101 et seq..........................................................................................................14
72 P.S. § 9116(a)(1.1)(ii).....................................................................................................14
72 P.S. § 9116�a)�2) �emphasis added)................................................................................15
72 P.S. § 9703.1 ....................................................................................................................2
72 P.S. § 9703.1(i)...............................................................................................................13
72 P.S. § 9703.4...................................................................................................................13
1780 Pa. Laws 492 § XIV......................................................................................................3
Regulations
61 Pa.Code§ 31.42...............................................................................................................14
61 Pa.Code § 31.48(4)and (5) ............................................................................................14
Other
Black's Law Dictionary at 347 (5`h ed. 1971). ......................................................................2
Pa. House Journal, Jun. 28, 1996, 2017 (Remarks of Rep. Egol fl .......................................5
Pa. Senate Journal, October 1, 1996, 2452-53(Remarks of Sens. Fumo).............................5
Renne M. Scire &Christopher A. Raimondi,Note: Employement Benefrts: Will Your
Signifrcant Other Be Covered?, 17 Hofstra Lab. & Emp. L.J.
357, 375-376 (2000).............................................................................................................16
Brad Sears et al., Economic Motives for Adopting LGBT—Related Workplace Policies,
The Williams Instutitue
(October 1,2011), http://escholacship.ocQ/uc/item/2nr871sf......................................... 16, 17
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Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 6 of 25
SPECIAL INTEREST OF AMICUS CURIAE
Robert M. McCord is the Treasurer of the Commonwealth of Pennsylvania,an
independently elected, state constitutional office, whose powers and responsibilities are
statutorily derived and set forth in the state Fiscal Code. In his capacity as the State Treasurer,
Robert M. McCord ("Treasurer McCord") seeks to provide this Court the viewpoint of a public
official who is statutorily charged with the oversight and administration of state laws, programs,
and public benefits that, without public policy justification, categorically deprive same-sex
couples of equal treatment under state law.
By filing this Brief of Amicus Curiae, Treasurer McCord desires to ensure that this Court
receives the balanced perspective of a state public official who is able to identify,with
specificity, instances in the administration of state-sponsored benefits and programs that, as a
consequence of Pennsylvania's Marriage Law,create two distinct classes—those couples whose
marriages are recognized by Pennsylvania and therefore are granted access to state-sponsored
benefits and programs, and those same-sex couples whose out-of-state marriages are not
recognized and therefore are denied access to state-sponsored benefits and programs.
Treasurer McCord, by virtue of his position is able to offer a unique perspective
on the fiscal impact of Pennsylvania's Marriage Law on same-sex couples whose out-of-state
marriages are not recognized. The State Treasurer is a public employer. The State Treasurer is
also responsible for the administration of myriad laws and programs within the scope of the
Treasury Department that touch upon the lives of almost every Commonwealth resident and, in
many circumstances, reach beyond Pennsylvania's borders to impact the rights of residents of
1
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Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 7 of 25
other states.� For example,the State Treasurer is responsible for overseeing Pennsylvania's
Disposition of Abandoned and Unclaimed Property Act, a program that seeks to identify, locate,
and reunite abandoned and unclaimed property with lawful owners. 72 P.S. § 1301.1 et seq. The
Treasurer also serves as Chairman of the Board of Finance and Revenue, an administrative
appellate Board that considers and resolves appeals from the Department of Revenue involving
state taxation. 72 P.S. § 9703.1. In addition,the Treasurer administers Pennsylvania's Tuition
Account Program, intended to provide affordable savings and college tuition planning for
families. 24 P.S. § 6901.304.
Of equal importance,the Treasurer is the only public official who serves as an ex o�cio
member of each of Pennsylvania's state retirement boards—the Pennsylvania State Employees'
Retirement Board(71 Pa.C.S.A. § 5901)and the Pennsylvania Public School Employees'
Retirement Board (24 Pa.C.S.A. § 8501).
Pennsylvania's Marriage Law has a genuine fiscal impact on same-sex couples, like
Plaintiffs Palladino and Barker, because it excludes them from access to these myriad state-
sponsored programs and benefits that are overseen and administered by the Treasurer.
� In fact,the State Treasurer is the only non judicial statewide public official specifically
mentioned in on section of the Marriage Law (not Section 1704,the section that Plaintiffs
challenge,which lists no particular official charged with enforcement). In particular, Section
1105 directs that 50 cents for each issuance of a marriage license shall be transmitted to the State
Treasurer upon the tenth day of each month. 23 Pa.C.S.A. § 1105. The Pennsylvania Fiscal
Code provides extensive oversight authority to the Treasurer to ensure the proper disbursement
of all public funds, grants, and other public money within the custodial control of the Treasurer.
72 P.S. §§ 301-304. The role of custodian is not a mere perfunctory duty, but involves the
responsibility of assuming immediate charge and control of ownership, implying the
responsibility for the protection and preserv,ation of the funds and assets under the custodial
control of the Treasurer.See Black's Law Dictionary at 347 (5`h ed. 1971). The mere fact that
Pennsylvania's Marriage Law prohibits the issuance of a marriage license to same-sex couples �
deprives the Commonwealth's General Fund of this additional source of revenue.
2
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Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 8 of 25
As a consequence, same-sex married couples are neither treated in the same manner nor
afforded the same legal rights and presumptions that opposite-sex spouses when: (1) seeking to
recover unclaimed property; (2) accessing and receiving retirement benefits; (3) establishing and
transferring college-tuition savings accounts; (4) appealing disparate tax treatment decisions of
the Department of Revenue; and (5)obtaining employer provided benefits. In each case,
Pennsylvania's Marriage Law deprives same-sex couples of equal treatment and effectively
places public officials—in particular the State Treasurer—in the untenable position of complying
with a discriminatory law?
As a result of Pennsylvania's Marriage Law's impact on these state-sponsored programs
and benefits overseen by the State Treasurer, Treasurer McCord has a special interest in ensuring
that the administration of those programs and benefits are executed in a manner that ensures
equal access and treatment of all individuals,without regard to sexual orientation.
ARGUMENT
I. Pennsylvania's Marriage Law creates two distinct classes of marriage.
Pennsylvania was once a leader in removing laws that selectively afforded the right to
marriage to only certain privileged classes of citizens. In 1780, Pennsylvania became the first
state in the nation to repeal its anti-miscegenation law—removing any legal impediment to
marriage between races. See 1780 Pa. Laws 492 § XIV (repealing Chapter 292 of the Act of
1725 of the General Assembly of Pennsylvania, which prohibited interracial marriages). It was
2 Though Treasurer McCord has no pecuniary or personal interest in the outcome of this
litigation,"there is no rule... that amici must be totally disinterested." Liberry Res., lnc. v. Phila.
Hous. Auth., 395 F. Supp. 2d. 206, 209 (E.D. Pa. 2005) (quoting Hoptowit v. Ray, 682 F.2d
1237, 1260 (9`h Cir. 1982)). Robert M. McCord has been married to his wife for over twenty-
seven years, yet had his marriage taken place forty years earlier, it would have been explicitly
prohibited in seventeen states. As both a husband and a public official,the belief that marriage is
a fundamental right and inherently related to individual liberty is personal to Treasurer McCord.
3
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Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 9 of 25
not until 1967 when the United State Supreme Court, in Loving v. Virginia, declared prohibitions
against inter-racial marriages to be unconstitutional and a violation of both the Due Process and
Equal Protection Clauses of the Fourteenth Amendment.Loving v. Virginia, 388 U.S. 1, 12, 87
S. Ct. 1817, 1823-24 (1967). Unfortunately, litigation before this Court revisits the issue of state
laws that selectively recognize marital rights, replacing racially based barriers with a newly
identified obstacle—sexual orientation.
Pennsylvania's Marriage Law, 23 Pa.C.S.A. § 1101 et seq., defines marriage in a manner
that explicitly prohibits same-sex couples from obtaining a marriage license in the
Commonwealth and excludes from legal recognition same-sex couples lawfully married in
another state jurisdiction. Section 1102 of the Marriage Law defines a"marriage"as a civil
contract, a formal legal relationship recognized under state law which provides the couple with
various associated rights, protections,and presumptions. However, by its terms, Pennsylvania's
civil marriage contract explicitly excludes same-sex couples. 23 Pa.C.S.A. § 1102 ("A civil
contract by which one man and one woman take each other for husband and wife."). The effect
of this exclusion is to prohibit any state legal acknowledgement of a same-sex couple's
relationship under the same terms and conditions as an opposite-sex relationship. 23 Pa.C.S.A. §
1301(a) (no marriage is recognized without a license).
Section 1704 of the Marriage Law—which is the particular section that Plaintiffs
challenge—extends its exclusionary treatment to same-sex marriages legally entered into in other
state jurisdictions. The Marriage Law formally states that it is the"public policy of this
Commonwealth"that marriage is between one man and one woman and that same-sex marriages
entered into in another state are"void" in the Commonwealth. 23 Pa.C.S.A. § 1704. In so
doing, Pennsylvania's Marriage Law intentionally establishes two distinct classes of couples:
4
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Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 10 of 25
opposite-sex couples, who are able to enter into the civil contract of marriage in any jurisdiction
and have their marriage legally recognized in Pennsylvania, and same-sex couples, who are
neither allowed to obtain a marriage license in Pennsylvania nor enjoy legal recognition by the
Commonwealth of a marriage contract lawfully obtained in another jurisdiction.3 The effect of
this division is to prohibit contractual legal status for same-sex marriages, and by implication,
numerous derivative state legal rights, protections, and presumptions.
II. Pennsylvania's Marriage Law compels the unequal treatment of same-sex couples in
accessing state-sponsored programs and bene�ts administered by the State
Treasurer.
Although the Treasurer does not directly enforce Section 1704 of the Pennsylvania
Marriage Law, the statute impacts the state-sponsored benefits and programs that he does
enforce. In particular, Section 1704 results in disparate treatment for same-sex married
� individuals who, because their marriage is not recognized as a result of Section 1704, are
deprived of equal access to the various state-sponsored programs and benefits that are overseen
and administered by the Treasurer.
Without legal recognition of their marital status, same-sex couples are without a myriad
of derivative rights,protections, and presumptions, including, by way of example,the"spousal
privilege" in criminal proceedings (42 Pa.C.S.A. § 5913),the right to inherit through intestate
succession(20 Pa.C.S.A. § 2102), and the legal presumption to make medical decisions for an
incapacitated spouse (20 Pa.C.S.A. § 5461(d)(1)(i)). This statutorily imposed disadvantage
extends not just to Pennsylvania same-sex couples seeking to have their relationships
3 See, e.g., Pa. House Journal, Jun. 28, 1996, 2017 (Remarks of Rep. Egol fl (explaining the
intention to exclude same-sex couples from state and employment benefits typically afforded to
opposite-sex couples)and Pa. Senate Journal, October 1, 1996, 2452-53 (Remarks of Sen. Fumo)
(opposing the amendment to the Marriage Law because of its discrimination against same-sex
couples as a class).
5
. �
Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 11 of 25
acknowledged legally, but also to those couples whose marriages have been legally recognized
outside of Pennsylvania, yet cannot obtain equal treatment under Pennsylvania law.
Though not immediately obvious, the various programs overseen and administered by the
State Treasurer are illustrative of the legal divide between same-sex couples and opposite sex
couples as it pertains to access to state benefits and programs.
A. Abandoned and Unclaimed Property
The State Treasurer is statutorily assigned the responsibility to administer Pennsylvania's
Disposition of Abandoned and Unclaimed Property Act(DAUPA), an act that identifies
abandoned property and provides the means by which such property may be reunited with its
lawful owner. See 72 P.S. 1301.1 et seq. An early example of a consumer protection law,
Pennsylvania's DAUPA establishes an extensive process in which the owners of abandoned and
unclaimed property are located, contacted, and subsequently reunited with their property.
Pennsylvania's DAUPA has far-reaching public impact. Annually,Treasury receives and
processes over 80,000 claims for the return of abandoned and unclaimed property.
Approximately 1.2 million people, estates, or corporations are currently listed as having
unclaimed property within the custodial control of the Commonwealth. From 2009 to 2013,
BUP has received 3,979,840 individual unclaimed properties,the owners of which include out of
state residents. In the last two fiscal years,the Treasury Department has received over$500
million dollars in unclaimed property, of which over$200 million was reunited with 140,946
lawful owners.
The Treasury Department makes available a searchable database on which individuals
may look for unclaimed property in their names or the names of their relatives. If a person
believes he or she is entitled to unclaimed property, he or she may file a claim and submit it to
6
Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 12 of 25
Treasury's Bureau of Unclaimed Property("BUP"). 72 P.S. § 1301.19. The Treasurer considers
and resolves thousands of claims annually, and in so doing, may"receive evidence concerning"
claims. 72 P.S. § 1301.20(a).
The DAUPA defines "owner"as a"person having a legal or equitable interest in the
property." 72 P.S. § 1301.1. The Treasurer applies Pennsylvania law, including the Marriage
Law, the Divorce Code,the Probate, Estates and Fiduciaries Code, and other relevant
commercial or property laws, in order to determine entitlement to the property. Because
unclaimed property is generally reported to the Commonwealth after a five year repose period
(72 P.S. §§ 1301.3-1301.10),the person seeking the return of the property is frequently an heir or
assignee of the original property owner. In many cases,the person making a claim for the
property is an out-of-state resident seeking the return of family assets.
1. Intestate Succession
One way individuals may prove entitlement to unclaimed property is by establishing a
legally recognized relationship with a deceased owner of the property. For example, in 2012 and
2013, BUP received 25,516 claims submitted by heirs of deceased owners of unclaimed
property. When the decedent owner dies without a will,the Treasurer applies the law of intestate
succession, 20 Pa.C.S.A. §§ 2101-2114.
In order to claim abandoned property on behalf of the estate of an owner who has died
intestate, a claimant must present to the Treasurer, among other documents, letters of
administration identifying the claimant as administrator of the estate. Under Pennsylvania law of
intestate succession,the county Register of Wills is directed to grant letters of administration
first to the surviving spouse, if there is no will. 20 Pa.C.S.A. § 3155(b)(2). Because
Pennsylvania's Marriage Law prohibits the recognition of same-sex marriage, a surviving same-
7
Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 13 of 25
sex spouse is often unable to obtain letters of administration in the estate of his or her deceased
spouse. As a consequence,the Treasurer is forced to deny claims made by a surviving same-sex
spouse who cannot obtain letters of administration.
If a surviving same-sex spouse were able to obtain letters of administration as "other fit
persons"under Section 3155(b)(5) of the Probate, Estates and Fiduciaries Code,the Treasurer
may pay the estate of the decedent-owner. However,the claimant-spouse personally will not be
entitled to the funds under the laws of intestate succession. 20 Pa.C.S.A. §§ 2102-2103.
Pennsylvania's intestate succession laws,together with the Marriage Law, effectively treat
spouses in a same-sex marriage as strangers,without any legal rights or presumptions normally
granted to opposite-sex spouses. Under circumstances in which there are no living heirs, the
estate is escheated to the Commonwealth of Pennsylvania, rather than inherited by a surviving
spouse. 20 Pa.C.S.A. § 2103(6).
If a decedent-owner died while residing in the Commonwealth, the Treasurer is permitted
to distribute unclaimed property owned by the decedent directly to an entitled claimant only if
the following conditions apply:
(i)The amount of the funds or the value of the property is $ 11,000 or less.
(ii)The person claiming the property or the funds is the surviving spouse, child,
mother or father, or sister or brother of the decedent, with preference given in that
order.
(iii)A personal representative of the decedent has not been appointed or five
years have lapsed since the appointment of a personal representative of the
decedent.
20 Pa.C.S.A. § 3101(e)(1)(i)-(iii) (emphasis added).
This provision provides a convenient way for family members to claim the property of a
deceased relative. In fact, 16,470 of the claims submitted by heirs of decedent property owners
in 2012 and 2013 utilized this section in order to claim the property of their deceased relatives.
8
Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 14 of 25
However, pursuant to the Marriage Law, the Treasurer is required to deny such claims made by
surviving spouses of a same-sex marriage because Pennsylvania affords no legal
acknowledgment of their relationship or out-of-state marriage.
Unfortunately, unless same-sex couples engage in careful estate planning,the
Pennsylvania Marriage Law precludes a surviving same-sex spouse from enjoying the same
inheritance rights or presumptions typically provided to opposite-sex couples seeking to claim
abandoned or unclaimed property.
2. Tenanc�y the Entireties
Though real property is not remitted to the Treasurer as unclaimed property,the proceeds
from the sale of real estate, such as from sheriffs' sales, is subject to the custody and control of
the Commonwealth. 72 P.S. § 1301.9(1). In 2011 and 2012,the Treasurer received $23.4
million in proceeds from the sherif�s sale of 2,771 properties from Philadelphia County alone.
If the underlying real property was owned by more than one person,the proceeds are reported in
the names of all owners. In situations where a claim for the proceeds of jointly owned real estate
sold at sheriffls sale is submitted to the Treasury Department, and one of the owners is deceased,
the Treasurer looks at the type of tenancy created by the conveyance of the property in order to
determine entitlement.
Pennsylvania law no longer contains a presumption that favors rights of survivorship
between joint owners. See 68 P.S. § 101. Accordingly, where a deed conveys property as a
Tenancy in Common or a Joint Tenancy with no survivorship language,the property will pass
pursuant to the decedent's will or through intestate succession. Id. If owners intend to create a
Joint Tenancy with Right of Survivorship, "the intent to do so must be expres[s]ed with
sufficient clarity to overcome the statutory presumption that survivorship is not intended."
9
Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 15 of 25
Zomisky v. Zamiska, 449 Pa. 239, 242, 296 A.2d 722, 723 (1972) (citing Ishenvood v. Springs
First Nat'l Bank, 365 Pa. 225, 74 A. 2d 89 (1950) and Mardis v. Steen,293 Pa. 13, 141 A. 629
(1928)).
However, Pennsylvania common law provides for a unique form of ownership known as
Tenancy by the Entireties, a legal right available only to married couples. See Wylie v. Zimmer,
98 F. Supp. 298, 299 (E.D. Pa. 1951), Clingerman v. Sadowski, 513 Pa. 179, 183, 519 A.2d 378,
380 (1986), and Gilliland v. Gilliland, 751 A.2d 1169, 1172 (Pa. Super. Ct. 2000). Tenancy by
the Entireties is characterized by a right of survivorship, whereby upon the death of one spouse,
the surviving spouse is presumed to become the sole owner of the property. Id.
As a consequence, if a couple in a same-sex marriage were to purchase real property as
joint tenants, but not include sufficiently clear language to create a right of survivorship, the
Treasurer will be required to deny the claim for the proceeds of a subsequent sale of the property,
if the claim were submitted by the surviving spouse of that relationship. Alternatively, if the
couple were married under Pennsylvania law, and were able to purchase the property as husband
and wife, upon the death of one spouse,the surviving spouse would be presumed under
Pennsylvania law to be the sole property owner. Under such circumstances,the Treasurer would
be able to approve the claim and distribute the proceeds to the surviving spouse.
B. Tuition Account Program
The State Treasurer administers the Tuition Account Program ("TAP"). TAP contains
two programs–a Guaranteed Savings Program and an Investment Program—in which account
owners can take advantage of a low-cost,tax-deferred contribution program in order to save
money for a designated beneficiary's college education. 24 P.S. § 6901.101 et seq. TAP is a
state-sponsored program intended to provide affordable access to higher education and to
10
Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 16 of 25
encourage attendance at institutions of higher education. 24 P.S. § 6901.301(5). There are
currently 104,318 accounts within the Guaranteed Savings Program, and 82,774 accounts within
the Investment Program. Participation in either program is open to residents of all states; it is not
limited to Pennsylvania residents. In fact, approximately 2,888 of Guaranteed Savings Program
account holders and 3,599 Investment Program account holders are out-of-state residents.
Both programs in TAP require the account owner to complete a contract, in which he or
she is given the opportunity to select a successor owner to become the owner of the TAP account
upon the original owner's death or incapacity. If a successor owner is not designated, upon the
death of the account owner, successor ownership is determined by the account owner's will. If
there is no will, and the beneficiary is a minor,ownership passes to the original owner's
surviving spouse. However, if there is no surviving spouse, successor ownership is determined
by state intestate laws. See Investment Program Disclosure Statement, Part 2(A)(2)(c), attached
hereto as Exhibit 1.
Since Pennsylvania law does not recognize same-sex marriages,the same-sex spouse of
an account owner will not become the successor owner upon the death of the account owner who
died intestate without a designated successor. By way of comparison, because opposite-sex
marriages are formally recognized, Pennsylvania provides inheritance rights that would permit
successor ownership of the account to the surviving spouse. Without the legal right to marriage,
there is no presumption of the right to inherit or control the handling of a Pennsylvania TAP
account.
C. Public Employee Retirement Benefits
The State Treasurer is the only public official who is a member of both major state public
retirement systems—the State Employees' Retirement System ("SERS"), 71 Pa.C.S.A. § 5901,
11
Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 17 of 25
and the Public School Empioyees' Retirement System ("PSERS"), 24 Pa.C.S.A. § 8501. SERS
and PSERS are the two largest pension funds in the Commonwealth,with over 832,000 active
members,combined. SERS currently has 107,002 active members who are still employed with
the Commonwealth, 120,052 retirees or annuitants, and 4,951 vested members who no longer
work for the Commonwealth. PSERS has 267,428 active members, 209,204 annuitants, and
128,650 vested members who have left employment with the public school system. Though
primarily Pennsylvania residents while employed, at the time of retirement, many SERS and
PSERS members move and establish residency in other states, including those states that
acknowledge the legal status of same-sex marriages.
As a member of each retirement system board, Treasurer McCord oversees the
management and investment of each fund,the administration of each system's benefits, and
consideration and resolution of payment requests.
One of the responsibilities of the system administrators is to pay death benefits to
designated beneficiaries upon notificatiori of the death of a member. If the member fails to
designate a beneficiary and the Board has not been notified to pay the estate,"the board is
authorized to pay such benefits to the executor, administrator, surviving spouse or next of kin of
the deceased member . . . ." 24 Pa.C.S.A. § 8505(h) (PSERS) and 71 Pa.C.S.A. § 5905(g)
(SERS). Under Pennsylvania law, a same-sex spouse would not be entitled to receive the death
benefits of his or her spouse if the member-spouse did not designate a beneficiary. However,
because Pennsylvania Marriage Law affords opposite-sex married couples legal recognition of
their relationship,an opposite-sex spouse would be presumed to be entitled to those benefits
even if there were no beneficiary designation. Furthermore, it is questionable that a surviving
same-sex spouse would even possess legal standing to appeal or challenge a decision of either
12
Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 18 of 25
system, because there is no legal recognition in Pennsylvania of their relationship, and therefore
no established property right in the benefit. Because Pennsylvania's Marriage Law does not
recognize same-sex marriages of other state jurisdictions, out-of-state residents are also excluded
from accessing state benefits under similar circumstances.
The PSERS board is also authorized to"sponsor a participant-funded group health
insurance program for annuitants,�ouses of annuitants, survivor annuitants and their
dependents." 24 Pa.C.S.A. § 8502.2(a) (emphasis added). Because Pennsylvania's Marriage
Law bars from legal recognition same-sex marriages, it is likely that same-sex spouses of
annuitants would be denied access to health benefits under this program. See id.
D. Administrative Appeals of Department of Revenue Decisions
The State Treasurer is statutorily identified as the Chairman of the Board of Finance and
Revenue. 72 P.S. § 9703.1(i). The Board of Finance and Revenue is a quasi-judicial
administrative board charged with the consideration and resolution of appeals of final tax
decisions from the Department of Revenue. 72 P.S. § 9703.4. In 2013,the Board received over
4,000 individual tax appeals involving a broad range of state tax matters, including personal
income taxes,corporate net income taxes, state sales taxes, and realty transfer taxes.
Pennsylvania's Marriage Law has a significant impact on the assessment and calcu(ation
of state tax liability, and by consequence,the application of state tax law in considering appeals
concerning the Department of Revenue tax determinations. For example, Pennsylvania law
imposes a tax on the transfer of real property, such as residential homes. 72 P.S. § 8102-C.
Individuals who record a document transferring real estate within Pennsylvania must pay a state
tax at the rate of one percent of the value of the real estate. Id. However, certain transactions are
excluded from the realty transfer tax, including:
13
Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 19 of 25
transfer between husband and wife . . . between parent and child or the spouse of
such child, between a stepparent and a stepchild or the spouse of the stepchild,
between brother or sister or spouse of a brother or sister and brother or sister or
the spouse of a brother or sister and between a grandparent and grandchild or the
spouse of such grandchild"
72 P.S. § 8102-C.3(6) (emphasis added).
For example, if a grandparent transferred realty to the opposite-sex spouse of a
grandchild, that conveyance would not be subject to a realty transfer tax; however, if the tax was
mistakenly paid and it was appealed to the Board of Finance and Revenue, the Board would be
permitted to issue a refund. Conversely, if the facts in the previous situation were exactly the
same, except the transfer was to the same-sex spouse of a grandchild, the Board would be forced
to deny the refund because Pennsylvania's Marriage Law affords no legal recognition to their
relationship.
Likewise, Pennsylvania assesses a sales tax on the transfer of the registration of a vehicle.
61 Pa. Code § 31.42. Tax is not imposed,however, on transfers"between a husband to his wife
or from a wife to her husband,"from the couple as joint owners to one spouse, or from one
spouse to the couple as joint owners. 61 Pa. Code § 31.48(4)and (5). Since the Board of
Finance and Revenue also considers appeals for refunds of sales taxes, Treasurer McCord would
be required to deny a refund of a sales tax to a same-sex spouse, where the vehicle upon which
the tax was assessed was transferred from the other spouse.
Though the Board of Finance and Revenue does not consider appeals regarding the
imposition of inheritance taxes,the Board does examine appeals for the refund of inheritance
taxes. Pursuant to Pennsylvania's Inheritance and Estate Tax Act, 72 P.S. §§ 9101 et seq.,the
transfer of property between husband and wife is taxed at a rate of zero percent. 72 P.S. §
9116(a)(1.1)(ii). By comparison,the transfer of property between unrelated persons is taxed at a
14
Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 20 of 25
rate of fifteen percent. 72 P.S. § 9116(a)(2)(emphasis added). Unfortunately, as a consequence
of Pennsylvania's Marriage Law, same-sex couples(even those same-sex couples lawfully
married in another state) are taxed as if they had no relationship—mere acquaintances.
If a same-sex spouse paid more than the amount of inheritance tax owed under
Pennsylvania law, he or she would have little chance of a successful appeal to the Board of
Finance and Revenue if the Department of Revenue refused their request. Whereas, a similarly
situated opposite-sex spouse would not have to undertake any appeals, as he or she would never
have been required to pay the inheritance tax in the first place.
E. State Treasury Employee Benefit Access
As the chief executive of the Treasury Department,the State Treasurer oversees
approximately 376 public workers who are employed by the Treasury Department.
Pennsylvania's Marriage Law precludes Treasurer McCord from offering certain benefits and
protections to same-sex spouses,when those same benefits and protections are available to
opposite-sex spouses. For example, following the death of an employee who died a resident of
Pennsylvania, an employer is permitted to pay any wages, salary, or other employee benefits
"due the deceased in an amount not exceeding$5,000 to the s�ouse, any child,the father or
mother, or any sister or brother(preference bein�given in the order named)of the deceased
employee." 20 Pa.C.S.A. § 3101(a) (emphasis added). Pursuant to Pennsylvania's definition of
marriage and explicit exclusion of same-sex couples, Treasurer McCord is forced to deny a
same-sex spouse of a deceased employee the preferential treatment provided for in Section 3101.
Moreover, as a Commonwealth agency and participant in the health benefit program, the
Pennsylvania Employees Benefit Trust Fund(PEBTF), Treasury provides domestic partnership
health care benefits to all Treasury employees, including domestic partners (opposite-sex or
15
Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 21 of 25
same-sex couples). Domestic partners are provided the same medical, dental, and vision benefits
as the Commonwealth employee.4 However, domestic partner health benefits are subject to
federal income, social security, and Medicare taxes. Employers with retired employees must
issue a W-2 form to report income to the IRS. Both employee and employer have a
responsibility to pay the appropriate share of social security and Medicare taxes. The employer
rates are 6.2%and 1.45%respectively on the imputed value of the benefits. The result is the
added expense and burden on employers who must maintain two separate systems for calculating
employee benefits: one system, which automatically applies the appropriate calculations for
legally married couples, and one in which payroll employees must manually calculate the
information for domestic partnerships, including same-sex couples.
Employees who have a same-sex relationship may not be able access other employee-
related benefits that are available to legally recognized opposite-sex couples, such as Social
Security benefits, Medicare, Medicaid, and protections under the Family and Medical Leave Act.
Research has shown that granting to employees in a same-sex relationship the same employment
rights and benefits accessible to opposite-sex married couples produces an economic benefit to
employers. See Brad Sears et al.,Economic Motives for Adopting LGBT-Related Workplace
Policies, The Williams Institute (October 1, 2011), https://escholarship.org/uc/item/2nr871sf
(hereinafter"Sears et al."). Employers who adopt policies advancing the equal treatment of all
married couples—same-sex and opposite-sex—cite as one example of economic benefit the
recruitment and retention of top-quality employees and talent, which facilitates employers to be
more competitive. Id. at 5. See also Renee M. Scire& Christopher A. Raimondi,Note:
Employment Beneftts: Will Your Significant Other Be Covered?, 17 Hofstra Lab. & Emp. L.J.
4 Benefits differ among state employees depending on the insurance plan the employee chooses.
16
Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 22 of 25
357, 375-376 (2000). Other economic benefits, such as an increase in ideas and innovation,
productivity, and customer service are attributable to the improvement in diversity that is
fostered by acceptance and equality for same-sex couples. Sears et al. at 5-8. By gaining a
more diverse workforce, employers can take advantage of the unique and differing perspectives
each employee has to offer, customers and clients are more likely to connect with employees
from different backgrounds, and employees feel valued and respected at work. Id.
CONCLUSION
The state programs and benefits administered and overseen by the State Treasurer
comprise a small fraction of Pennsylvania's $30 billion annua( government operations. Yet, it is
not difficult to extrapolate from Treasury's example in order to understand the profound and far-
reaching social impact of Pennsylvania's Marriage Law on the daily lives of same-sex couples,
including those married in other state jurisdictions. It is well established that domestic relation
status, in particular the civil contract of marriage, has a profound impact on society, including the
manner in which persons are able to access state programs and benefits. See United States v.
Windsor, 133 S. Ct. 2675, 2693 (2013).
There can be no doubt that Pennsylvania's Marriage Law acts to disadvantage, as a
separate class, same-sex couples by purposefully refusing them state recognition of their
relationship and thus the derivative rights, presumptions and protections normally associated
with the legal status of marriage. From a time in which states once enacted anti-miscegenation
laws, imposing similar discriminatory effects, such laws have been deemed unconstitutional as
depriving individual of equal treatment under federal law. Loving, 388 U.S. at 12, 87 S. Ct. at
1823-24. Pennsylvania's law is equally demeaning; its professed purpose is to remove the
dignity and legal acknowledgement of marriage from a newly identified disfavored class—same-
17
Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 23 of 25
sex couples. The examples described herein are illustrative of the pervasive and routine
discriminatory impact of this Law.
WHEREFORE, for the forgoing reasons, Pennsylvania Treasurer Robert M. McCord
respectfully requests this Court to consider the perspective of Amicus Curiae and grant Cara
Palladino's and Isabelle Barker's Motion for Summary Judgment, declaring, as a matter of law,
that Pennsylvania's Marriage Law deprives them of equal protection under the law.
By: s/Christopher B. Craig`
Christopher B. Craig
Chief Counsel
Pa. Bar I.D.No. 65203
Pennsylvania Treasury Department
127 Finance Building
Harrisburg, PA 17120
ccrai��patreasurv. ov
717.787.2740
Attorney for Amicus Curiae
Dated: March 21,2014
18
Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 24 of 25
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CARA PALLADINO and ISABELLE .
BARKER, .
. CIVIL ACTION
Plaintiffs, .
v. .
. No. 2:13-cv-05641-MAM
THOMAS W. CORBETT, in his official .
capacity as Governor of Pennsylvania, .
and his successors in office; and .
KATHLEEN KANE, in her official .
Capacity as Attorney General of .
Pennsylvania, and her successors in office, .
Defendants. .
CERTIFICATE OF SERVICE
I, Christopher Craig, Chief Counsel for the Commonwealth of Pennsylvania, Department
of Treasury, hereby certify that on March 21, 2014, I caused to be served a true and correct copy
of the foregoing document titled Motion of Pennsylvania Robert M. McCord for leave to file
Amicus Curiae brief in support of Plaintiffs to the following:
Case 2:13-cv-05641-MAM Document 48-1 Filed 03/24/14 Page 25 of 25
VIA ELECTRONIC FILING
Michael L. Banks, Esquire William H. Lamb, Esquire
Eric Kraeutler, Esquire Joel L. Frank, Esquire
Vanessa Renee Brown,Esquire Lamb McErlane, PC
William O. Mandycz, Esquire 24 East Market Street
Elisa P. McEnroe P.O. Box 565
Melina R. Dimattio West Chester, Pennsylvania 19381
Morgan Lewis & Bockius, LLP wlamb(u�lambcerlane.com
1701 Market Street ;fi•i ank(a�lambcerlane.com
Philadelphia, Pennsylvania 19103-2921 Counsel for Defendant Corbett
mbanks a,morganlewis.com
ekraeutler(t�mor�anlewis.com
vbrownna,morganlewis.com
emcenroe�morganlewis.com
mdimattio(u�mor�anlewis.com
Counsel for Plaint�s
Benjamin L.Jerner, Esquire Mary Abbegael Giunta
Jerner&Palmer, PC Commonwealth of Pennsylvania
5401 Wissahickon Avenue Office of the Attorney General
Philadelphia, Pennsylvania 19144 15`h Floor Strawberry Square
bjerner�jplaw.com Harrisburg, Pennsylvania 17120
Counsel for Plaint�s mpacuskana,attorney en�eral.�ov_
Counsel for Defendant Kathleen Kane
Respectfully Submitted,
s/Christonher B. Craig_
Christopher B. Craig
Chief Counsel
Pa. Bar I.D.No. 65203
Pennsylvania Treasury Department
127 Finance Building
Harrisburg, PA 17120
cccai��patreasurv.Q„ov
717.787.2740
Attorney for Amicus Curiae
Dated: March 21, 2014
Cindy L.Villanella, Esq.
� ' • Carrucoli&Associates, P.C.
875 Market Street
Lemoyne, PA 17043
(717)761-1274
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ORPHANS' COURT DIVISION
IN RE ESTATE OF:
JEANNE SCHWARTZ NO.: 2012-0536
INHERITANCE TAX APPEAL
CERTIFICATE OF SERVICE
I, Cindy L. Villanella, Esq., hereby certify that a true and correct copy of the Divorce
Complaint was served this date on the below named, by placing same in the United States mail,
addressed as follows:
Department of Revenue
Office of Chief Counsel
P.O. Box 281061
Harrisburg, PA 17128-1061
.
Date: � /
m L. V' e a, Esquire
S rem o rt ID # 202325
rruc ' Associates, P.C.
875 Market Street
Lemoyne, PA 17043