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filed: September 11, 1981.


No. 2272, Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil-Law Division, No. 79-22403


Richard K. Hohn, Philadelphia, for appellants.

D. Barry Pritchard, Jr., Lansdale, for appellee.

Wickersham, Montemuro and Watkins, JJ. Watkins, J., files concurring opinion.

Author: Montemuro

[ 290 Pa. Super. Page 536]

On January 7, 1980, plaintiff, Lisa DeSantis, a minor, brought suit in trespass against defendant, Lawrence L. Yaw, for injuries suffered by her in an automobile accident which occurred September 10, 1977. The defendant alleged as New Matter that the claim was barred by the statute of limitations.

The issue was argued, and the Court found for the defendant on the pleadings. The plaintiff filed a Concise Statement of Matters Complained Of On Appeal, and set forth as her sole ground for reversal of the decision barring her action that the statute of limitations should be unconstitutional as applied to minors.

The lower court's opinion held that statutes of limitation are favoured in law, and that plaintiff's constitutional arguments, while interesting, were without merit. This court, however, has examined the issue from an historic approach as well as from a constitutional perspective and has become convinced that the traditional approach of our courts to the statute of limitations as applied to minors no longer fits comfortably into the framework of the law. Review of the matter is timely.

Historically, western civilization has considered the minor child as the belonging of its father. The paterfamilias of

[ 290 Pa. Super. Page 537]

Roman times had absolute power of his household, and could sell his children into slavery or kill them at will.*fn1

Under the English common law doctrine of paterfamilias a father still retained an "unquestioned right" to the services and custody of minor children, and it appears that this right did not depend upon fulfillment of corresponding duties, at least not upon any legally enforceable ones.*fn2 Blackstone regarded the duty of support as a "natural" duty but absent statute not a legal one, and courts of the United States have also pronounced the duty merely "moral," 42 Harvard Law Review, supra note 2, at 112.

The familiar doctrine of reciprocity of duties of support and rights to custody and services appears to have been the creation of common law judges interested in "spinning out a symmetrical pattern of rights and duties," Id. Even in relatively modern times the right to recover for a child's injury remained in the father alone and did not extend to a mother, even if widowed and providing nursing for a minor who had brought income to the household prior to an injury. Fairmont and Arch Street Passenger Railway Co. v. Stutler, 54 Pa. 375 (1867).

Interestingly, the Fairmont court also distinguished between intentional torts and negligent ones, and concluded that even a father would have been able to recover only for seduction of a daughter or battery of a son, which represented willful trespasses upon his own rights in his children. For negligent injury, recovery would lie in the child himself.

Then as now, an infant was required to bring his action through an adult as guardian or next friend. 13 Standard Pa. Practice, 325-326, 335. Presumably, therefore, the only recovery conceived of as possible in Fairmont, would be to the child for pain and suffering and for loss of earnings

[ 290 Pa. Super. Page 538]

    after reaching his majority, and these would have to be sued for by the parent as next friend.

That position appears to have been an anomaly even for the era in which the holding was published, for the identical court only three years before had reached a different result altogether in Oakland Railway Co. v. Fielding, 48 Pa. 320 (1864).*fn3 The father in Oakland retained the recovery awarded him by the lower court for negligent injuries sustained by his son, and the appellate court approved damages limited to "compensation for loss of services, for nursing, and for surgical and medical attendance." Id. at 327.

Within thirty years, however, the rights to recovery for both parent and child were clarified and codified in the Act of 1897. Act of May 12, 1897, P.L. 62 sec. 1, 12 P.S. ยง 1625; 13 Standard Pa. Practice, ch. 64 sec. 4, 328-329; 7 Goodrich-Amram, Rule 2228(b), "Joinder of Parent and Child" at 418. The actions of parent and child were recognized and ordered to be brought in the same case under penalty of barring the claim of the unjoined party, Id. Apparently no trace remained of the notion that the parents' recovery depended upon the intentional nature of the tort as a deliberate invasion of parental rights.*fn4 Most modern authorities, however, do still view the parents' losses as "more properly treated as an action for damages to property rights," than as a personal injury action. 59 Am.Jur.2d at 213; accord, 67A C.J.S. Parent & Child at 520-521.

The pattern codified in 1897 has continued to the present date. The child's cause of action and the parents' cause of action are independent of each other, yet both are left to the ...

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