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September 27, 1979

Frank S. KRICK and Mary J. Krick, his wife, Plaintiffs,
Daniel E. CARTER, Charles Carter, Defendants and Third Party Plaintiffs, v. Frank S. KRICK, Third Party Defendant.

The opinion of the court was delivered by: HERMAN


Plaintiffs initiated the present civil action on May 10, 1978, asserting the diversity jurisdiction of this court. Plaintiffs, husband and wife, are both residents of the state of Maryland. Defendants are both residents of the Commonwealth of Pennsylvania. The action concerns damages allegedly resulting from an automobile accident that occurred on June 19, 1976, in York County, Pennsylvania. On July 17, 1978, Defendants joined the husband, Frank S. Krick (hereafter referred to as "Mr. Krick"), as a Third Party Defendant jointly or severally liable with Defendants or liable over to Defendants on Plaintiffs' cause of action. Mr. Krick was the owner and operator of one of the vehicles involved in the accident, and his wife was a guest in that vehicle.

 The issue presented in this motion to dismiss the Third Party Defendant or for summary judgment is simply which state's substantive law will apply. If Maryland law is applicable, Third Party Defendant is immune from an action by his wife for personal injuries resulting from his negligent operation of an automobile. Furstenburg v. Furstenburg, 152 Md. 247, 136 A. 534 (1927); Hudson v. Hudson, 226 Md. 521, 174 A.2d 339 (1961); Stokes v. Association of Independent Taxi Operators, Inc., 248 Md. 690, 237 A.2d 762 (1968). Furthermore, under Maryland law no right of contribution exists from Mr. Krick as a third party defendant for his wife's injuries. Ennis v. Donovan, 222 Md. 536, 161 A.2d 698 (1959). If on the other hand, Pennsylvania law is applicable, both parties agree that Mr. Krick is not immune from liability for contribution as a third party defendant. See Restifo v. McDonald, 426 Pa. 5, 230 A.2d 199 (1967).

 Third Party Defendant advances two bases for applying the law of Maryland to the present action. First, he argues that Pennsylvania's choice of law principles require the application of Maryland law. Second, he contends that the Pennsylvania No-Fault Motor Vehicle Insurance Act of July 19, 1974, No. 176, 40 P.S. § 1009.110(c)(2) provides that Maryland law applies. Because we find that neither of these grounds requires us to apply Maryland law and because we find that Pennsylvania law should be applied, we deny the motion of the Third Party Defendant.

 The first hurdle we face is to apply the proper choice of law principles. This problem has been settled definitively for us by the United States Supreme Court in Klaxon Company v. Stentor Electric Manufacturing Company, Inc., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941). The Court held that when federal jurisdiction is founded on diversity of citizenship, as it is here, the court must apply the choice of law principles of the state in which the court is sitting. Accord, Neville Chemical Company v. Union Carbide Corporation, 422 F.2d 1205 (3d Cir. 1970). We have no hesitancy, therefore, in concluding that we must apply the choice of law principles established by the courts of the Commonwealth of Pennsylvania.

 The leading Pennsylvania case in a tort action choice of law decision is Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). Griffith has been cited and explained often by both federal and Pennsylvania courts and a very brief synopsis will suffice. Under Griffith, a court must evaluate the quality of each relevant state's contacts with and interests in the litigation to find the predominantly concerned state. The depth and breadth of the states' policies and concerns must be measured with regard to the specific occurrence at issue. Both parties agree about the basic impact of Griffith. Plaintiffs' Brief, p. 5; Defendants' Brief, p. 3. They part company in their reasoning and arguments in the application of the Griffith formula at this point.

 Because we have been referred to, and have found for ourselves, no Pennsylvania decisions directly on point with this matter, we must predict what the Pennsylvania courts would rule in such a situation. Keystone Aeronautics Corporation v. R. J. Enstrom Corporation, 499 F.2d 146 (3d Cir. 1974). We will, therefore, discuss in some detail the arguments so ably advanced by both parties.

 Third Party Defendant presents a well-reasoned discussion pointing to McSwain v. McSwain, 420 Pa. 86, 215 A.2d 677 (1966), as the most important decision for this court to follow in our deliberations. In McSwain, a wife domiciled in Pennsylvania sued her husband, also domiciled in Pennsylvania, under a Colorado statute for the death of her daughter in an accident that occurred in Colorado. The Pennsylvania Supreme Court affirmed the lower court's decision to apply the Pennsylvania intramarital immunity in direct tort actions and noted that courts must consider the interests of the state in having its law applied. The court reasoned:

Presumably, Colorado has made its determination to permit such suits with its own domiciliaries primarily in mind. In the instant case, however, we deal with a suit between Pennsylvania domiciliaries. Any effect which this litigation may have on the marital relations of the parties is a matter of concern primarily to Pennsylvania, the state which has the basic "responsibility for establishing and regulating the incidents of the . . . relationship" of the parties. Emery v. Emery, 45 Cal.2d 421, 428, 289 P.2d 218, 223 (1955). And, although Colorado, as the state of both the conduct and injury could assert an interest in this litigation in order to further the deterrence of negligent conduct on its highways and to secure, in the event of insurance, a fund for the payment of local creditors, those interests would not be disserved by the application of the Pennsylvania rule of interspousal immunity in the instant case.

 420 Pa. at 95-96, 215 A.2d at 682-683 (footnote omitted).

 We note that under this rationale, the only Pennsylvania law that was applied from the court's decision concerned interspousal immunity. The court indicated in a footnote that the issues involving liability and negligence could be determined by Colorado law. The court regarded it as "sufficient for present purposes that we note that in the event of conflict each issue requires separate and independent analysis." 420 Pa. at 96 n.20, 215 A.2d at 683 n.20.

The action of the court below was not equivalent to permitting an action by the wife against her husband. Her husband is not a party defendant to the action so far as she is concerned. The judgment against him, as restricted by the Court, is not enforceable by her, nor does it enure to her benefit. It is simply a judgment enuring to the benefit of the original defendant if he pays or is required to pay the wife's judgment . . . .

 156 Pa.Super. at 483-84, 40 A.2d at 917. This is the Pennsylvania view of the right of contribution as ...

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