Fadgen v. Lenkner
1976 Pa. LEXIS 757, 365 A.2d 147, 469 Pa. 272 (1976)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The common law civil tort of criminal conversation is abolished in Pennsylvania as an anachronism whose historical underpinnings are obsolete and whose application is inconsistent with modern societal values and legal principles.
Facts:
- James T. Fadgen and Bonnie Hoch Fadgen were married in 1972.
- During the course of the Fadgens' marriage, George Lenkner engaged in sexual intercourse with Bonnie Hoch Fadgen.
- The sexual intercourse between Lenkner and Bonnie Hoch Fadgen occurred without the consent of James T. Fadgen.
Procedural Posture:
- James T. Fadgen (plaintiff) sued George Lenkner (defendant) in the Court of Common Pleas of Allegheny County, Civil Division, for the tort of criminal conversation.
- Fadgen moved for judgment on the issue of liability based on Lenkner's written admission that he had sexual intercourse with Fadgen's wife.
- The trial court granted Fadgen's motion, entering a judgment upon admission against Lenkner on the issue of liability.
- Lenkner (appellant) appealed the judgment to the Superior Court of Pennsylvania.
- The Superior Court affirmed the trial court's order per curiam.
- Lenkner (appellant) was then granted an appeal to the Supreme Court of Pennsylvania.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the common law cause of action for the tort of criminal conversation, which imposes strict liability on a third party for engaging in sexual intercourse with a married person, remain a valid and enforceable tort in Pennsylvania?
Opinions:
Majority - Jones, Chief Justice
No. The civil cause of action based upon the tort of criminal conversation is abolished. This tort is an anachronism rooted in the obsolete common law fiction that a wife was the personal property or chattel of her husband. The court reasoned that the tort imposes a harsh, strict liability without affording defendants the opportunity to raise logically valid defenses, such as the quality of the marriage or the role of the plaintiff's spouse in initiating the relationship. Furthermore, the court noted that such actions are notoriously susceptible to abuse, blackmail, and extortion, and serve no real preventive purpose in modern society. Citing its duty to abrogate court-made rules when the rationale for them no longer exists, the court concluded that the tort is inconsistent with modern realities and the 'right sense of justice'.
Concurring - Manderino, Justice
No. The tort of criminal conversation should be abolished because the choice of a married person to engage in sexual activity with another is protected by the constitutional right to privacy under the Due Process Clause of the Fourteenth Amendment. Citing Roe v. Wade and Cleveland Board of Education v. La Fleur, the opinion argues that freedom of personal choice in matters of family life is a protected liberty. Therefore, the state has no compelling interest that would justify allowing a cause of action that limits the exercise of this private, consensual choice between adults. Society no longer has an interest in protecting one spouse from the other's extramarital sexual activity, and thus no compensable injury occurs.
Dissenting - Roberts, Justice
Yes. The cause of action for criminal conversation should remain a valid tort in Pennsylvania. The dissent argues that the majority is abolishing a long-standing protection for the marital relationship without statutory authority. It contends that the basis of the action is the protection of conjugal rights, not property rights, and that society still considers adultery to be an unreasonable interference with the important interests of the family. The dissent distinguishes this case from prior cases abolishing immunities, noting that those expanded liability, whereas this decision extinguishes a cause of action. The fact that adultery is no longer a crime may even strengthen the justification for a civil remedy for the wronged spouse.
Dissenting - Pomeroy, Justice
This opinion does not answer the issue on the merits but dissents on procedural grounds, arguing that the court lacks jurisdiction to decide the case. The appeal was taken from an interlocutory order granting partial summary judgment on liability alone, which is not a final, appealable order. The dissent argues that the trial court did not properly certify the question for an immediate appeal, and the Superior Court erred by hearing it. Therefore, the appeal should have been quashed for lack of jurisdiction to promote judicial economy and avoid piecemeal litigation.
Analysis:
This decision represents a significant exercise of judicial power to modernize the common law by abolishing an ancient tort that no longer aligns with contemporary social norms regarding marriage, gender equality, and individual autonomy. By eliminating criminal conversation, the court rejected the legal framework that treated a spouse as a form of property and moved away from using tort law to regulate private, consensual sexual behavior. The ruling reflects a broader legal trend of abolishing 'heartbalm' torts and places Pennsylvania among a growing number of states that have done so either judicially or legislatively. It establishes a strong precedent for courts to re-evaluate and discard outdated doctrines when their foundational reasons have eroded, even in the absence of legislative action.
