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FALCO v. PADOS (ET AL. (10/12/71)

decided: October 12, 1971.


Appeal from judgment of Court of Common Pleas of Northampton County, May T., 1966, No. 284, in case of Kristine Falco, a minor by Edward Falco, her parent and natural guardian, and Edward Falco v. Stephen W. Pados, defendant, Edith Falco, additional defendant and Aetna Insurance Company, garnishee.


E. Jerome Brose, with him Frank S. Poswistilo, and Brose, Poswistilo & LaBarr, for appellant.

Norman Seidel, with him Gus Milides, for appellees.

Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Concurring and Dissenting Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Pomeroy.

Author: Eagen

[ 444 Pa. Page 373]

This is an appeal from the judgment entered below in an attachment execution proceeding. The facts stipulated by the parties are as follows:

Kristine Falco, an unemancipated minor, was injured while she was a passenger in an automobile operated by her mother, Edith Falco, when it became involved in a collision with an automobile operated by Stephen Pados.*fn1

The minor, through her father, Edward Falco, as guardian, and the father in his own right instituted an action for damages solely against Pados. The latter

[ 444 Pa. Page 374]

    joined Edith Falco, as an additional defendant in the action, alleging that she was alone liable for the minor's injuries, or alternately, jointly liable with Pados therefor.

A jury trial resulted in a verdict in favor of the plaintiffs and against the original and the additional defendant in the total sum of $28,050.80.*fn2 Judgments were subsequently entered on the verdict and Pados' insurance carrier paid the plaintiffs $10,000, the maximum sum due under its policy. No further recovery was possible from Pados since he was judgment proof.

The plaintiffs then instituted the instant attachment execution proceeding against the Aetna Insurance Company (Aetna), the additional defendant's liability insurance carrier, as garnishee. Interrogatories were filed to which Aetna filed an answer raising the defense of intrafamily immunity. The parties then stipulated the facts of record and submitted the issue to the court for final decision as if each side to the litigation had entered a motion for summary judgment. Subsequently, the court entered a judgment in favor of the minor plaintiff against Aetna for $18,050. Aetna then filed this appeal.

The case presents the question of inter-spousal immunity, as well as parental immunity, although the court below in entering judgment failed to give the doctrines separate consideration. In our view, the claim of the minor plaintiff must be considered apart from that of her father, and this opinion will proceed accordingly.

Claim of Kristine Falco

The question in this instance is whether under the facts of the case, the minor plaintiff, Kristine Falco,

[ 444 Pa. Page 375]

    may recover the full amount of her verdict, even though to do so requires a garnishment of her mother's liability insurance policy.

Undeniably, it is currently the law in Pennsylvania that an unemancipated minor child may not maintain an action of trespass against either parent to recover damages for personal injuries resulting from that parent's negligence. Parks v. Parks, 390 Pa. 287, 135 A.2d 65 (1957). Nor may a parent maintain such an action against his or her unemancipated child: Silverstein v. Kastner, 342 Pa. 207, 20 A.2d 205 (1941); Duffy v. Duffy, 117 Pa. Superior Ct. 500, 178 A. 165 (1935). The rule has been one of public policy and the basic reasons therefor are said to be twofold: first, allowance of such an action would result in "discord in the home, disorganization of the family relation and the severing of the natural ties of affection," all of which the "state desires to prevent rather than promote." Duffy v. Duffy, supra, at 502; secondly, to permit such suits would be conducive to and provide encouragement for collusion, perjury and fraud.

In ruling that the minor plaintiff could garnish the mother's liability insurance policy, the court below reasoned that the instant case is distinguishable from an intrafamily dispute, since here the minor plaintiff instituted suit only against Pados, who, in turn, joined the mother as an additional defendant. Hence, the parent's presence in the litigation resulted from Pados' action and not that of her child. Secondly, the minor plaintiff did not testify against her mother, nor did the latter admit negligence, thereby making her insurer liable. Only Pados testified against the additional defendant, and the imposition of liability by the jury was not the product of dispute, contention or any other disruptive circumstances within the family circle.

The foregoing position is appealing, but its adoption would lead to future pitfalls. However, further discussion

[ 444 Pa. Page 376]

    will serve no purpose, because after thoughtful consideration, we have concluded that the doctrine of parental immunity has no rational purpose today, and ...

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