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filed: May 30, 1980.


No. 2866 October Term, 1978, Appeal from the Judgment in the Court of Common Pleas of Lackawanna County, Civil Action - Law at No. 2352 September Term, 1975.


Gifford R. Cappellini, Wilkes-Barre, for appellant.

George Clark, Scranton, for appellee.

Price, Gates, and Dowling, JJ.*fn*

Author: Price

[ 278 Pa. Super. Page 316]

Appellee, Ann Marie D'Amico Baldassari (hereinafter appellee), is the mother and guardian of the other named appellees and appellant is their natural father. In 1960, appellant and appellee began living together, and a total of four children were born of the relationship, one each in 1962, 1965, 1968 and 1972. The parties have never been married to one another, and appellant has been lawfully married at all times to another woman, a fact known by appellee since their initial meeting in 1960. From 1960 until 1974, appellee assumed the traditional roles of wife and mother, maintaining the home, rearing the children, entertaining appellant's business associates and adopting his surname. They formed, in the true sense of the term, a family unit, and appellee held herself out to the public at large as being married to appellant, a status not discovered by their acquaintances or their children to be false until institution of the present suit. Despite their prolonged cohabitation, the relationship between the parties was less than compatible with repeated periods of separation. Early in 1973, appellee vacated the apartment in which she was residing with appellant and took with her the youngest child. After repeated requests by appellant for appellee to return and resume the family relationship, the parties entered into an agreement dated November 1, 1973,*fn1 wherein for a recited consideration of $1 and a pledge by appellee to provide a home environment for the four children, appellant agreed to lease to appellee for a period of forty years a home that was in the process of being constructed on land allegedly owned by appellant. The

[ 278 Pa. Super. Page 317]

    agreement further recited that in the event appellant sold the home during the term of the lease, forty percent of the proceeds would be distributed to appellee and sixty percent to the children, and appellant also agreed to provide for a devise of the home in his will to appellee and the children in the same proportions. Upon signing the agreement, appellee moved back into the apartment and resumed responsibility for the children. Relations between the parties did not improve, and appellee vacated the apartment in March of 1974, prior to the completion of the home that was the subject of the earlier agreement. Appellee subsequently discovered that appellant did not own the lot upon which the home was being constructed, but had instead merely been negotiating with the contractor who owned the lot to construct the home according to certain specifications.

On October 1, 1975, appellee filed suit. As amended, the complaint rested upon two theories-the first in trespass for fraud and deceit for inducing appellee to sign the lease and to move back into the apartment with appellant and the children, and the second in assumpsit for breach of the agreement signed on November 1, 1973. After trial, the jury returned a verdict in favor of appellee for $95,000 as the fair market value of the home.*fn2 Pursuant to a request by defense counsel, the jury answered a special interrogatory and stated that its award was based upon both the trespass and assumpsit theories. However, the trial court later granted appellant's motion for judgment non obstante veredicto on the fraud counts. The court reasoned that because the measure of damages in a fraud action in Pennsylvania is the "actual loss" rule and not the "loss of value of bargain" rule, see Kaufman v. Mellon Nat'l Bank and Trust Co., 366 F.2d 326 (3d Cir. 1966); Tilghman v. Dollenberg, 418 Pa. 604, 213 A.2d 324 (1965), the verdict for $95,000 could not be sustained on that basis since appellee did not establish an actual loss in that amount. That ruling has not been challenged,

[ 278 Pa. Super. Page 318]

    and the verdict on appeal must be reviewed solely on the basis of the assumpsit theory of recovery.

Appellant's first contention on appeal is that the contract was "based upon illegal, immoral or meretricious consideration . . . against public policy and should not be enforced as a matter of law." (Brief for appellant at 7). In disposing of this claim we decline appellant's offer to espouse the moral, ethical and legal considerations arising from the type of relationship to which the parties voluntarily committed themselves. We find such analysis unnecessary, because the evidence presented was sufficient to establish that the contract was supported by consideration other than the future sexual relationship between appellant and appellee.

While a contractual arrangement founded solely upon consideration paid for the procurement of sexual services would be unenforceable as contrary to public policy, see Baldy v. Stratton, 11 Pa. 316 (1849); Restatement of Contracts § 589 (1932), the mere contemplated cohabitation between negotiating parties does not render them incompetent to form binding contracts regarding other transactions. See e. g., Marvin v. Marvin, 18 Cal.3d 660, 557 P.2d 106, 134 Cal.Rptr. 815 (1976); Tyranski v. Piggins, 44 Mich.App. 570, 205 N.W.2d 595 (1973); Kozlowski v. Kozlowski, 164 N.J.Super. 162, 395 A.2d 913 (1978), 6A Corbin on Contracts § 1476 (1962); Restatement of Contracts §§ 589, 597 (1932). Rather, an agreement founded upon mutual concern for the rearing of the natural bounty of the contracting parties will not be ...

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