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decided: October 8, 1976.



Richard H. Martin, Pittsburgh, for appellant.

William C. Bartley, Pittsburgh, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., joins the majority opinion and also joins the concurring opinion filed by Manderino, J. Manderino, J., filed a concurring opinion. Roberts and Pomeroy, JJ., filed dissenting opinions.

Author: Jones

[ 469 Pa. Page 274]


Appellee, James T. Fadgen, brought an action in trespass against appellant, George Lenkner, based upon the theory of criminal conversation. The complaint alleged that appellee and one Bonnie Hoch Fadgen were married in 1972 and that during the period of this marriage, the

[ 469 Pa. Page 275]

    appellant, without the consent of appellee Fadgen, criminally conversed with Ms. Fadgen. Pursuant to Rule 1037(c) of the Pennsylvania Rules of Civil Procedure, appellee moved the court below to enter judgment against appellant on the issue of liability based upon the latter's written admission that he had engaged in sexual intercourse with appellee's wife while the marriage continued.

The Court of Common Pleas of Allegheny County, Civil Division, sitting en banc, granted the appellee's motion for judgment upon admission.*fn1 Thereafter, George Lenkner appealed to the Superior Court which affirmed per curiam, 231 Pa. Super. 775, 331 A.2d 537. This appeal followed.

This Court last reviewed an action similar to the one presently at bar in 1959. In Karchner v. Mumie, 398 Pa. 13, 156 A.2d 537 (1959), the Court upheld a jury verdict in favor of the plaintiff-wife based upon the tort of criminal conversation where appellant-defendant had sought reversal on the ground that the cause of action as developed at common law was only available to married men as against an erring spouse's paramour.*fn2 The

[ 469 Pa. Page 276]

Court reasoned that the Married Women's Property Act of June 8, 1893, P.L. 344, as amended by the Act of May 17, 1945, P.L. 625, mandated the extension to married women of the right to bring such an action on their own behalf. Id. at pp. 15-17, 156 A.2d at pp. 538-39.

It is clear, however, that that first step directed towards fusing the ancient with the "modern" of 1959 was not sufficient revitalization such as to weather the rapid legal and societal changes witnessed over the past fifteen years. We might look back and well appreciate that, absent the benefit of attitudes reflected in the passage of the Equal Rights Amendment, the Court in 1959 nevertheless laudibly rejected the fictitious notion that a wife, like a servant, was the personal property (chattel as it were) of the husband and that an action in criminal conversation was a right sacrosanct to none but the master. Still, the Court's extension to married women of the right to bring such a cause of action only delayed what today demands; that is, the total abolition of a pious yet unrighteous cause of action.

Against the social background of the 18th century, Blackstone wrote,

"Adultery or criminal conversation with a man's wife, though it is, as a public crime, left by our laws to the coercion of the spiritual courts; yet, considered as a civil injury (and surely there can be no greater) the law gives satisfaction to the husband for it by an action of trespass ir et armis against the adulterer; damages recovered are usually very large and exemplary."

3 Black Com. edited by Wendell 139 (1768).*fn3

[ 469 Pa. Page 277]

One of several civil actions directed at protecting against intentional interferences with the marital relationship,*fn4 criminal conversation comes closest in form to a strict liability tort. The cause of action is made out upon plaintiff's proof that while married to plaintiff, plaintiff's spouse and the defendant engaged in at least a single act of sexual intercourse without the consent of plaintiff. Baldridge v. Matthews, 378 Pa. 566, 568, 106 A.2d 809, 810 (1954); Antonelli v. Xenakis, 363 Pa. 375, 376, 69 A.2d 102 (1949); Restatement of Torts § 685 at p. 477 (1938). There are but two possible complete defenses to the action: one, obviously, is an outright denial by the defendant of having had any such relation with plaintiff's spouse; the other occurs upon proof that the plaintiff consented to the adulterous relation. Prosser, Law of Torts, § 124, at p. 879 (Fourth Ed. 1971); Restatement of Torts § 687, comments (a) and (b), at pp. 482-83 (1938). See also Note, Criminal Conversation, Civil Action for Adultery, 25 Baylor L.Rev. 495 at 497 (1973).

It is no defense to the action, however, that the plaintiff's spouse consented nor in fact that the spouse was the aggressor or seducer. Sieber v. Pettit, 200 Pa. 58, 49 A. 763 (1901); Durning v. Hastings, 183 Pa. 210, 38 A. 627 (1897). As to the former, it was thought at common law that a wife was not competent to give her consent so as to defeat her husband's interest. Tinker v. Colwell, 193 U.S. 473, 483, 24 S.Ct. 505, 48 L.Ed. 754 (1903).*fn5 As to the justification for eliminating the defense

[ 469 Pa. Page 278]

    that the wife initiated and pursued the adulterous relationship, in addition to the belief at common law that she was incapable of prejudicing her husband's rights, the law burdensomely presuming the superiority of men over women chastized:

"The man who breaks up the home of his neighbor by debauching his wife, rendering his children worse than motherless, is not excused because he is weak, and, being tempted by the woman, falls."

Seiber v. Pettit, 200 Pa. 58 at 67, 49 A. 763 (1901).

". . . it is but the old cowardly excuse set up by the first man, 'The woman gave me of the tree, and I did eat.' It did not save from the penalty the first defendant, and cannot, under the law, save this one."

Id. at p. 69, 49 A. at 765. See also Tinker v. Colwell, supra; Durning v. Hastings, 183 Pa. 210, 211-212, 38 A. 627 (1897). Such factors bearing on the issue of fault are not admissible except with reference to mitigating damages. Matusak v. Kulezenski, 295 Pa. 208, 145 A. 94 (1928); Seiber v. Pettit, 200 Pa. 58, 69, 49 A. 763 (1901); Mathies v. Mazet, 164 Pa. 580, 30 A. 434 (1894).*fn6 Moreover, a man could not plead ignorance of the marital status of the adulterer: "A man who has sexual relations with a woman, not his ...

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