D.C. Civil No. 70-308. D.C. Civil No. 73-310. APPEALS FROM THE ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Biggs, Aldisert and Rosenn, Circuit Judges. Rosenn, Circuit Judge, Dissenting.
Rose Zurzola and Matthew Zurzola, husband and wife, residents and citizens of New Jersey, on May 26, 1969, motored to visit relatives in Philadelphia. They became involved in an accident with another automobile at the intersection of Roosevelt Boulevard and Harbison Avenue, in Philadelphia. The driver of the other vehicle was Mutchnick, a resident of Pennsylvania. His automobile was owned by and leased to him by the DeVille Leasing Corporation, a Pennsylvania corporation, and had been manufactured by General Motors Corporation, a Delaware corporation. Two suits based on diversity were filed. The first was brought by Rose Zurzola and Matthew Zurzola, husband and wife, and Matthew Zurzola in his own right, vs. General Motors Corporation, No. 70-308 in the district court, at our Nos. 73-1959 and 73-1983. General Motors was accused of having equipped the car with inferior safety glass. General Motors moved to join Mutchnick and DeVille Leasing Corporation as third party defendants and to sever and join Matthew Zurzola as a third party defendant. These motions were granted. The second suit at No. 70-310 in the district court and at our No. 73-1960, was brought by Rose Zurzola, and Rose Zurzola and Matthew Zurzola, husband and wife, and Matthew Zurzola in his own right, vs. Jack Mutchnick and DeVille Leasing Corporation, alleging negligence on the part of Mutchnick in operating an automobile owned by DeVille while acting as agent of DeVille. The defendants moved to sever Matthew Zurzola and join him as a third party defendant and a severance order was entered. The third party complaint alleges negligence on the part of Matthew Zurzola. The learned district judge entered an order granting Matthew Zurzola's motion to dismiss him as a third party defendant, in both actions, on the ground of interspousal immunity. General Motors and Mutchnick have appealed, having procured adequate Rule 54(b), 28 U.S.C. orders.
In limine we are faced with a complex conflict of laws issue. The district court, 341 F. Supp. 767 (E.D. Pa. 1972), concluded: "Presently before this Court are motions of Matthew Zurzola to dismiss him as a third-party defendant on the premise that he is immune from contribution even if a jury finds that negligence on his part caused the injuries to his wife. For the reasons set forth below, we will grant those motions."
Since the jurisdiction of the district court is based on diversity of citizenship, we apply the conflicts of law rules of Pennsylvania. Klaxon Co. v. Stentor Electrical Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). In Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), the Pennsylvania Supreme Court held that a court must examine the various contacts that each state has with the matter in controversy to ascertain the state that has the greater interest in the issue and the law of the state most interested should be applied to resolve any dispute.
The district court in the instant case went on to say, 341 F. Supp. at 769: "Applying this test, it is our considered judgment that New Jersey has the most significant interest in the issue of intraspousal contribution. Matthew and Rose Zurzola were domiciliaries of New Jersey at the time of this accident. Since New Jersey is the state which has the basic responsibility for regulating the incidents of the marital relationship, it follows that any effect which this litigation might have on the domestic relations of these parties is a primary concern to New Jersey.
"On the other hand, Pennsylvania has an important interest in assuring its citizens safe travel on the state's highways. To the extent that the threat of liability deters carelessness, Pennsylvania arguably has an interest in intraspousal contribution. But resort to New Jersey law in this case should not significantly reduce any deterrence sought by Pennsylvania since the negligent spouse remains liable to third persons beyond the family relationship. Consequently, we are convinced that Pennsylvania would apply New Jersey law to the issue of intraspousal contribution.
"In fact, the Pennsylvania Supreme Court's holding in McSwain v. McSwain [420 Pa. 86, 215 A.2d 677 (1966)] mandates this conclusion. That case involved an automobile accident in Colorado involving married residents of Pennsylvania. Mrs. McSwain sued her husband in Pennsylvania under the Colorado Death Act alleging that the accident and death of their child were caused by his negligence. Under Colorado law, a wife could sue her husband directly in tort, whereas, Pennsylvania law barred direct intraspousal tort actions. The lower court held that Pennsylvania law applied and therefore, Mrs. McSwain was barred from suing. The Supreme Court affirmed and stated that: 'Our conclusion to look to the law of Pennsylvania on the issue of intramarital immunity rests . . . upon a determination that the circumstances of the instant case do not warrant the interjection of Colorado law into what is essentially a Pennsylvania family controversy.' Id. 97.
"Turning to New Jersey law, we find that in all instances intraspousal contribution was forbidden at the time of this accident. See e.g., Kennedy v. Camp, 14 N.J. 390, 102 A.2d 595 (1953).
"On July 10, 1970, however, the New Jersey Supreme Court changed the common law to permit such contribution in tort actions. See Immer v. Risko, 56 N.J. 482, 267 A.2d 481 (1970). Defendant Mutchnick argues that this opinion should apply retroactively to permit contribution in this case. Although retroactive application in the Immer case has great appeal, the New Jersey Supreme Court expressly held in Darrow v. Hanover Township, 58 N.J. 410, 278 A.2d 200 (1971), that the Immer decision had prospective application only. Since we are bound to follow New Jersey law and this accident occurred more than a year prior to the Immer opinion, we conclude that Matthew Zurzola enjoys immunity from contribution.
"Even if we were to consider this case under Pennsylvania law, the result would not change. Although the defendants assert that Pennsylvania law permits joinder of a spouse as a third-party defendant for purposes of contribution, the recent Supreme Court case of Falco v. Pados [, 444 Pa. 372], 282 A.2d 351 (1971), expressly held otherwise. Compare Ondovchik v. Ondovchik, 411 Pa. 643, 192 A.2d 389 (1963). Consequently, we must hold that Matthew Zurzola is immune from liability in this suit."
Only one question is presented here for decision, i.e., should the law of New Jersey or that of Pennsylvania be applied to determine the liability of Matthew Zurzola. As we have said, we must apply the conflict of laws principles of the forum, Pennsylvania. Klaxon Co., supra. The Pennsylvania Supreme Court has held that a court should examine the various contacts that it and any other State has in respect to the controversy to determine what State has the greater interest in the issue. In short, we look to the interests of the States, not to those of individual parties.
Significant contacts seem to lie in the law of both States. As to Pennsylvania, we note the following: (a) The accident occurred in Pennsylvania; (b) the case is being tried in a Pennsylvania court; (c) the defendants and, correspondingly, their insurers may be financially injured by the failure to apply Pennsylvania law; (d) all the defendants have ample Pennsylvania connections; and (e) the safety of the highways of Pennsylvania will be heightened by imposing liability for careless driving whether or not the driver is being sued by or is suing a spouse. New Jersey also has its interests (a) to protect its insurers from losses and (b) to preserve family harmony.
In McSwain v. McSwain, 420 Pa. at 91-97, 215 A.2d at 680-683, where there was a conflict between the law of Pennsylvania and the law of Colorado, Mr. Justice Roberts, speaking for the court, said: "Given the conflict between the law of Colorado, the situs of the accident, and the law of Pennsylvania on the effect of the marital relationship of the parties on appellant's right to prosecute the instant suit, we are thus confronted with the question of whether the circumstances of the case warranted the application of the Pennsylvania rule.
"Although rendered prior to the decision in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), in which this Court rejected the rule of lex loci delicti, the trial court's decision to look beyond the situs of the accident to apply the Pennsylvania rule of interspousal immunity was not without precedent. Even at the height of its acceptance, similar departures from the dictates of lex loci delicti were made by courts confronted with a conflict as to the effect of the marital relationship on the right of the parties to sue inter se. Following the precedent established in Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218 (1955), an early decision departing from the usual resort to lex loci delicti, a number of courts began to apply the law of the marital domicile to determine the issue. By characterizing the effect of the marital relationship on the rights of the parties as an aspect of family or domestic relations, rather than tort law, many courts which otherwise ...