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HomeMy WebLinkAbout99-2973 civilLEWIS E. ATKINSON, : Plaintiff · : vs. : 99-2973 CIVIL : JAMES MICHAEL EVANS, : Defendant : CIVIL ACTION - LAW IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANT BEFORE HOFFER, P.J., AND HESS, J. ORDER AND NO W, this day of August, 2000, the preliminary objections of the defendant to the plaintiff' s complaint in the nature of a demurrer and for failure of the pleading to conform to law, are SUSTAINED and the complaint is DISMISSED with prejudice. B Y THE COURT, LeRoy Smigel, Esquire For the Plaintiff Francis E. Marshall, Jr., Esquire Alan M. Robinson, Esquire For the Defendant :rlm LEWIS E. ATKINSON, Plaintiff VS. JAMES MICHAEL EVANS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-2973 CIVIL .. CIVIL ACTION- LAW IN RE- PRELIMINARY OBJECTIONS OF THE DEFENDANT BEFORE HOFFER, P.J., AND HESS, J OPINION AND ORDER The question posed by this case is whether we ought to dismiss the plaintiff's complaint for interference with contractual relations where the contract involved is a post-nuptial agreement and where the interference involves the continuation of an adulterous relationship. To our knowledge, this is a matter of first impression. The factual averments in the complaint are not complicated. The plaintiff was married to Mary Elizabeth Atkinson on July 27, 1975. In early 1996, the plaintiff and his wife separated as a result of an affair between Mary and the defendant, James Evans. On December 2, 1996, the plaintiff entered into a post-nuptial agreement which dealt with the parties' property rights and duties in the continuing marriage. One of the paragraphs of the agreement provided that Mary Elizabeth Atkinson would have no further contact with the defendant in any manner, including telephone, correspondence, e-mail, etc. The complaint further alleges that the defendant had knowledge of the existence of the agreement. Notwithstanding that Mr. Evans knew that he was to have no contact with his inamorata, he (allegedly) made phone calls, had sexual relations and otherwise induced or caused Mary Atkinson to breach her agreement with the plaintiff. This forms the basis of a count sounding in tortious interference with contract. 99-2973 CIVIL The other count in the complaint alleges a civil conspiracy. It is contended that, in another breach of her agreement with the plaintiff, Ms. Atkinson diverted cash fr~)i-n the marital estate. While it is contended that Mr. Evans wrongfully obtained marital property from Ms. Atkinson, the gravamen of this conspiracy count is clearly the violation ~)~'th~ agreement --- between husband and wife. '~, We agree with the defendant that the nature of the wrong alleged and the remedies sought demonstrate an attempt on the part of the plaintiff to recover for torts which have been legislatively or judicially abolished. Historically, a third party could be held liable for interfering with a marital relationship. The Pennsylvania legislature, however, has explicitly abolished all civil actions for alienation of affections of husband or wife. Se__.~e 23 Pa.C.S.A. 1901(a).~ To the extent that suit has been brought because of an illicit sexual relationship, the case is reminiscent of the former cause of action of criminal conversation. This cause of action has also been abolished. This the Supreme Court did in Fadgen v. Lenkner, 469 Pa. 272, 365 A.2d 147(1976). 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 the plaintiff .... 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. (Citations omitted.) ,, ~ An exception exists where the defendant is a parent, sibling, or person formerly in loco parentis to the spouse of the plaintiff. 23 Pa.C.S.A. § 1901 (b). It is clear that an exception does not apply in this case. 99-2973 CIVIL Id.__:. at 277, 365 A.2d at 149. In determining to abolish the cause of action, the Supreme Court concluded that: [W]e believe the cause of action itself is an anachronism and that in today's society it is unreasonable to impose upon a defendant such harsh results without affording any real opportunity to interject logically valid defenses on the merits such as the role of the plaintiff's spouse in the adulterous relationship or the quality of the plaintiff's marriage prior to the occurrence of the acts constituting the tort. Id___:. at 281,365 A.2d at 51. Although the plaintiff has titled his complaint as pleading causes for interference with contractual relations and civil conspiracy, he is, in reality, seeking to recover 'x monetary damages for interference with his marriage. It is true that Pennsylvania recognizes a cause of action for interference with performance of a contract by a third person. Under this theory: One who intentionally and improperly interferes with the performance of' a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the third person's failure to perform the contract. Adler, Barish, Daniels, Levin and Cresskofv. Epstein, 482 Pa. 416, 431,393 A.2d 1175, 1183 (1978). As can be seen from the foregoing, the cause of action specifically does not apply to contracts to marry. As noted in the defendant's brief: [T]he post-nuptial agreement is not a contract to marry. However, by definition, a post-nuptial agreement cannot exist in the absence of the marital contract and is so intertwined with the spouses' relationship that the rationale behind the 99-2973 CIVIL abolition of the tons of alienation of affection and criminal conversation should apply in a case such as this. Defendant's Brief, p.5. In any event, we fail to see a distinction between a "contract to ma. rry" and contract to remain married. · With regard to the complaint for civil conspiracy, the object of the conspiracy was a violation of the marital agreement. For reasons which we have already set out, the object of the conspiracy involves causes of action which are no longer recognized. Accordingly, this count will also be dismissed. ORDER AND NOW, this day of August, 2000, the preliminary objections of the defendant to the plaintiff' s complaint in the nature of a demurrer and for failure of the pleading to conform to law, are SUSTAINED and the complaint is DISMISSED with prejudice. BY THE COURT, LeRoy Smigel, Esquire For the Plaintiff /~itn A. ~Iess, J. Francis E. Marshall, Jr., Esquire Alan M. Robinson, Esquire For the Defendant :rlm