AB v. CD

• Decision Date: 06 December 1940
• Docket Number: Civ. A. No. 880.
• Citation: 36 F. Supp. 85
• Parties: A. B. v. C. D.
• Court: U.S. District Court — Western District of Pennsylvania

36 F. Supp. 85

A. B. v. C. D.

Civ. A. No. 880.

District Court, E. D. Pennsylvania.

December 6, 1940.

S. G. Wagner and Wagner & Wagner, all of Pittsburgh, Pa., and David L. Ullman, of Philadelphia, Pa., for plaintiff.

T. R. White and White & Staples, all of Philadelphia, Pa., for defendant.

BARD, District Judge.

This action was instituted at law allegedly to recover damages averred to have been sustained as a consequence of the defendant's fraudulent promise to marry the plaintiff.

According to the complaint, the defendant wilfully and knowingly made false and fraudulent representations and promises of marriage to the plaintiff. As a result, the plaintiff, a resident of New York, agreed to marry the defendant, a resident of Pennsylvania. This was in the latter part of 1935. The complaint further alleges that the defendant then deferred the nuptials for nearly three years, at various times and on various pretexts, before finally declaring at the plaintiff's home that it was not and had never been his intention to marry the plaintiff.

During the "engagement" period, the plaintiff allegedly made gifts to the defendant and expended large sums of money, in contemplation of the supposedly impending marriage, for travel, clothing and otherwise. The expenditures were out of proportion to her custom. In addition to the monetary loss the plaintiff originally alleged great humiliation, anxiety, inconvenience, emotional distress and mental anguish. An amendment eliminated this averment, and the plaintiff limited herself to her claim for actual financial loss, stating the same to have been in excess of $10,000. It might be noted, however, that another unamended paragraph of the complaint avers that on account of the fraudulent promises of the defendant she was "induced to and did remain unmarried" and held "herself in readiness to marry the defendant" and a later paragraph avers that by reason of these fraudulent promises plaintiff suffered damages.

The defendant has moved to dismiss the complaint and to have it stricken from the record. The former motion is on the ground that the complaint fails to state a cause upon which relief can be granted by this court. The latter motion is on the ground that the complaint contains scandalous matter and so should not remain subject to public scrutiny.

It is the contention of the defendant that the relief sought is barred by enactments of the Pennsylvania and New York legislative bodies. Act of June 22, 1935, Pennsylvania, P. L. 450, as amended, 48 P. S. § 170 et seq.; Act of March 29, 1935, New York Laws, ch. 263, adding Civil Practice Act, § 61-a et seq. These acts abolish causes of action for breach of contract to marry, forbid institution of such actions, provide that no act done shall operate to give rise to such actions, and provide that no contract to marry shall give rise to any cause of action for the breach thereof.

Therefore, if the contract was made in either Pennsylvania or New York and the present action is properly to be deemed one to recover for the breach thereof, the complaint must be dismissed. Similarly, if the acts furnishing the basis for the action were done in Pennsylvania or in New York and the action is properly to be deemed one to recover for breach of contract to marry, the complaint must be dismissed. Furthermore, though the misrepresentation and contract may have been made elsewhere, if the loss was sustained in either Pennsylvania or New York and an action for relief would be barred there, the complaint must be dismissed, since the law of the place where the loss was sustained determines whether there was actionable fraud. Restatement of Conflict of Laws, § 377(4); Keeler v. Fred T. Ley & Co., 1 Cir., 49 F.2d 872; Id., 1 Cir., 65 F.2d 499.

It is reasonable to infer either that the representations, promises, and contract were made in either New York or Pennsylvania, the respective residences of the plaintiff and defendant, or that the losses were sustained in New York or Pennsylvania. Under either circumstance, the action is barred here if it is deemed essentially one to recover for a breached contract.

Plaintiff contends, however, that this suit is not predicated upon a breach of promise to marry. The gravamen of the action, it is urged, smacks of fraud and deceit and there never was a contract because there could never have been a meeting of the minds, inasmuch as the defendant never intended to enter into a contract to marry.

Turning to the fundamental proposition here presented, it must be admitted that there is but meager authority to facilitate determination whether the instant action for injury consequent to fraud involved in a fraudulent promise to marry is within the governing prohibitory enactment. However, two recent decisions interpreting the New York Statute provide some assistance and guidance.

In the case of Sulkowski v. Szewczyk, 255 App.Div. 103, 6 N.Y.S.2d 97, 98, the plaintiff alleged a proposal accepted under a misrepresentation that the defendant was single. To meet the objection that the action was barred by the New York statute, it was averred that the suit was founded on fraud rather than on the breached promise. The court said: "If plaintiff's contention be correct, then any action based upon a breach of promise to marry could be turned into an action for misrepresentations by merely alleging that the promise of marriage was a sham, made solely for the purpose of taking advantage of the plaintiff."

The Sulkowski case appears to have been stronger than the instant case because in that case defendant was already married when he made his promise to marry plaintiff. Clearly he never intended to perform. Nevertheless, the Court held that the statute applied, and that the effort of the plaintiff to escape its provisions was ineffective....