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STITZINGER ET UX. v. STITZINGER LUMBER CO. (09/11/58)

September 11, 1958

STITZINGER ET UX., APPELLANTS,
v.
STITZINGER LUMBER CO., INC.



Appeal, No. 212, Oct. T., 1958, from judgment of Municipal Court of Philadelphia County, June T., 1957, No. 29, in case of Arthur L. Stitzinger et ux. v. Stitzinger Lumber Co., Inc. Judgment affirmed.

COUNSEL

F.C. Fiechter, Jr., with him Freeman, Fox & Fiechter, for appellants.

Lloyd A. Good, Jr., with him Manuel Steinberg, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Gunther

[ 187 Pa. Super. Page 454]

OPINION BY GUNTHER, J.

This appeal is from the granting of a motion for judgment on the pleadings by the court below. Appellants, Arthur L. Stitzinger and Ann Bond Stitzinger, husband and wife, instituted a trespass action against the Stitzinger Lumber Co., Inc., to recover damages to their real estate held by them as tenants by the entireties. The second count of said complaint also sought recovery for the loss of a bicycle belonging to their minor son, Laurence Stitzinger. The damages complained of were inflicted by Arthur L. Stitzinger as employe of said lumber company and acting in the scope of his employment and consisted of driving a company owned Plymouth station wagon upon the premises of the appellants and damaging it to the value of approximately $700 dollars. To this complaint no answer was filed but a motion for judgment on the pleadings, limiting the same to the first count of the complaint, was filed. The court below granted the motion and this appeal followed.

The sole question raised on this appeal is whether a husband and wife, owners of a home as tenants by the entireties, may maintain this action against the husband's employer for the damage caused to their

[ 187 Pa. Super. Page 455]

    home by the negligence of the husband employe while acting within the scope of his employment. Any question relating to the second count of the complaint was not decided nor raised on appeal and, therefore, will not be considered by us.

An examination of the cases surrounding this problem discloses this particular situation to be one of first impression. Actions for and on behalf of and against the family unity have been frequently decided by our courts and certain conclusions may be drawn from them. Thus, for example, a wife may sue a third party for personal injury to person and property even though the husband may have contributed to the accident and loss, Rodgers et ux. v. Saxton, 305 Pa. 479, 158 A. 166; the doctrine of intrafamily immunity from suit by a member of the family expires upon the death of the person protected and suit may be entered against the protected person's estate. Kaczorowski v. Kalkosinski, 321 Pa. 438, 184 A. 663; a minor child may maintain a tort action against the party who has the right of indemnity or contribution from the child's parents in the event of recovery, Briggs v. City of Philadelphia, 112 Pa. Superior Ct. 50, 170 A. 871; a parent may not maintain an action for personal injuries resulting from negligence of an unemancipated child, Duffy v. Duffy, 117 Pa. Superior Ct. 500, 178 A. 165; a husband cannot maintain a tort action against his wife, Koontz v. Messer, 320 Pa. 487, 181 A. 792; and a minor unemancipated child cannot maintain an action against the parent to recover damages for negligent operation of a motor vehicle, Parks v. Parks, 390 Pa. 287, 135 A.2d 65. However, our appellate courts have not been called upon to determine the issue raised in the present appeal.

Property held by husband and wife as tenants by the entireties creates a unity of ...


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