Opinion

Fadgen v. Lenkner

  • 469 Pa. 272
  • 365 A.2d 147
  • 1976 Pa. LEXIS 757
Court
Supreme Court of Pennsylvania
Filed
Oct 8, 1976
Status
Published
Author
Manderino
On the bench
Jones, Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino
Cited by
42 cases
Authority
More cited than 7.3%

commenting that repeal of criminal offense of adultery, did not require conclusion that correlative toft of adultery was abolished without express legislative action

How later courts described this case

  • commenting that repeal of criminal offense of adultery, did not require conclusion that correlative toft of adultery was abolished without express legislative action
  • commenting that repeal of criminal offense of adultery did not require conclusion that correlative tort of adultery was abolished without express legislative action
  • abolished civil cause of action based upon tort of criminal conversation

Written by the judges who cited it.

The opinion

MANDERINO, Justice

(concurring).

I concur in the result reached by the majority opinion because I believe that result mandated by the decisions of the United States Supreme Court in Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), in which the court held that the right of privacy was broad enough to preclude interference by the state in a woman’s decision whether or not to terminate her pregnancy, and in Cleveland Board of Education v. La Fleur, 414 U.S. 632 , 94 S.Ct. 791 , 39 L.Ed.2d 52 (1974). In the latter case the court stated its recognition “ . . . that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Id. at 639 , 94 S.Ct. at 796 , 39 L.Ed.2d at 60 . If a married man or woman chooses to engage in sexual activity with one other than his or her spouse, I believe such a choice is protected by the right to privacy guaranteed by the Constitution and there is no “compelling state interest” involved which would justify the state’s limiting the exercise of such rights. See Kramer v. Union Free School District, 395 U.S. 621 , 89 S.Ct. 1886 , 23 L.Ed.2d 583 (1969). The majority opinion amply illustrates the extent of the state’s past limitations on the free exercise of *284 this right. See also Doe v. Bellin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973), in which the court held that a woman’s right to decide to secure an abortion was personal and not conditioned on the consent of the putative father.

I also comment on the dissenting opinion of Mr. Justice Roberts. By “abolishing” the cause of action for criminal conversation, the majority at last recognizes that one’s spouse no longer suffers a compensable injury when the other engages in sexual activity outside the marriage relationship. Such a recognition is long overdue. In fact, I believe that were we to apply Mr. Justice Roberts’ three part inquiry the result would be the same: (1) society no longer has any interest in protecting one spouse against extramarital sexual activity by the other; (2) since there is no longer any interest to protect, there has been no invasion of such interest; and (3) no injury has resulted.

As to the question raised by Mr. Justice Pomeroy of the appealability of the order of the trial court, I quote from Clearfield Cheese Co. v. United Stone and A. Prod. Workers, 378 Pa. 144, 149 , 106 A.2d 612, 614-615 (1954):

“the decree is final to the extent that it determines that the defendants have no right to plead any defense to the plaintiff’s claim for damages. The decree conclusively declared that the defendants cannot be heard to refute their liability for damages. The mere fact that the decree leaves open the amount of damages to be ascertained does not make it any less final on all other provisions of the decree.”

Id. at 149 , 106 A.2d at 614-615 .

NIX, J., joins in this concurring opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.