The plaintiff calls our attention to Sutherland v. Auch-Interborough Transit Authority Co., 366 F. Supp. 127 (E.D. Pa. 1973). In Sutherland, the plaintiff husband sought damages for loss of consortium even though he did not marry the plaintiff-wife until a month after the wife was injured. The court predicted that the Pennsylvania Supreme Court would permit the husband to recover for any loss of consortium incurred after the date of the marriage. 366 F. Supp. at 134. The Sutherland court distinguished Sartori v. Gradison Auto Bus Co., Inc., 42 Pa. D. & C. 2d 781 (C.P. Washington Cty. 1967), which held to the contrary under similar facts, on the ground that in Sartori the plaintiff-husband claiming a loss of consortium did not marry the plaintiff wife until nine months after she was injured.
The Sutherland decision was expressly rejected by a subsequent Pennsylvania court which did not permit a loss of consortium cause of action to the wife even though she was engaged to the husband at the time of the husband's injury and married him one month after the accident. Rockwell v. Liston, 71 Pa. D. & C. 2d 756 (C.P. Fayette Cty. 1975). In fact, all of the reported county court cases in Pennsylvania which have ruled on this issue have refused to permit a cause of action for loss of consortium where the plaintiff was not legally married to the injured party at the time of the injury. Donough v. Vile, 61 Pa. D&C 460 (1947); Sartori v. Gradison Auto Bus Co., Inc., 42 Pa. D. & C. 2d 781 (C.P. Washington Cty. 1967); Rockwell v. Liston, 71 Pa. D&C 2d 756 (C.P. Fayette Cty. 1975); Akers v. Martin, 14 Pa. D&C 3d 325 (C.P. Franklin Cty. 1980). Cf. Orga v. Pittsburgh Railways Co., et al., 155 Pa. Super. 82, 38 A.2d 391 (1944).
It appears that most other jurisdictions which have considered this issue, with the exception of California, have not permitted a cause of action for loss of consortium where the parties are not legally married. Clifford v. White, 562 F. Supp. 387 (W.D. Mo. 1983) (no premarital or cohabitant cause of action in Virginia, and probably not in the District of Columbia); Weaver v. G.D. Searle & Co., 558 F. Supp. 720 (N.D. Ala. S.D. 1983) (no premarital or cohabitant loss of consortium claims permitted in West Virginia, New York, Kentucky, Illinois, Maine, Florida, or Alabama. See also Leonardis v. Morton Chemical Co., 184 N.J. Super. 10, 445 A.2d 45, 46 (App. Div. 1982) (no right to recover for loss of consortium in the absence of marriage); Childers v. Shannon, 183 N.J. Super. 591, 444 A.2d 1141, 1142 (Law Div. 1982) ("marriage is the only dependable means by which a relationship may be legally defined" for the purposes of loss of consortium claims). In Butcher v. Superior Court of Orange County, 139 Cal. App. 3d 58, 188 Cal. Rptr. 503, 512 (1983), the court held that an unmarried cohabitant is entitled to a cause of action for loss of consortium upon a showing that the non-marital relationship is both "stable and significant". The Butcher decision was criticized in Weaver v. G.D. Searle, where the court noted that "the application of a 'significant and stable relationship test' is so difficult as to be impossible in the real world . . .." 558 F. Supp. at 723. The New Jersey Superior Court voiced similar concerns in Childers v. Shannon, 444 A.2d at 1142-1143. The federal district judge in Weaver opined that the California court "came up with what may be right for California, but what is probably wrong for the rest of the country, including Alabama." 588 F. Supp. at 723.
It is not the province of a federal court to determine what the state law should be. The task of the federal court sitting in diversity is to predict how the Supreme Court of the state would rule in the matter. Becker v. Interstate Properties, et al., 569 F.2d 1203, 1205 (3d Cir. 1977). Given the longstanding reluctance of the Pennsylvania Supreme Court to expand the cause of action for loss of consortium to married women, and given the long line of county court decisions in Pennsylvania disallowing the loss of consortium claims of persons not lawfully married to the injured party at the time of the injury, this Court predicts that the Pennsylvania Supreme Court will not permit a cause of action for loss of consortium where the plaintiffs are not legally married to one another. Thus this Court will grant the defendant's motion for summary judgment in connection with plaintiff Margaret Curry's cause of action for loss of assistance, society, and consortium. An order follows.
AND NOW, this 20th day of January, 1984, upon consideration of the defendant Caterpillar Tractor Co.'s Motion for Summary Judgment as to Plaintiff Margaret Curry and the response of the plaintiffs thereto, for the reasons set forth in the Court's Memorandum of January 20th, 1984, it is hereby ORDERED that the defendant Caterpillar Tractor Co.'s Motion for Summary Judgment as to Margaret Curry is GRANTED, and judgment is ENTERED in favor of the defendants, Caterpillar Tractor Co. and Kelly Co., Inc., and against the plaintiff, Margaret Curry, in connection with her cause of action for loss of assistance, society, and consortium.
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