Baldassari v. Baldassari
| Citation | 420 A.2d 556,278 Pa.Super. 312 |
| Parties | Ann Marie D'Amico BALDASSARI a/k/a Ann Marie D'Amico, Individually and as a natural parent and guardian of Dawn Baldassari, Mia Cara Baldassari, Elmo Baldassari, and William Baldassari, v. Elmo BALDASSARI, Appellant. |
| Decision Date | 30 May 1980 |
| Court | Superior Court of Pennsylvania |
Argued June 4, 1979. [Copyrighted Material Omitted]
Gifford R. Cappellini, Wilkes-Barre, for appellant.
George Clark, Scranton, for appellee.
Before PRICE GATES, and DOWLING, JJ. [*]
Appellee, Ann Marie D'Amico Baldassari (hereinafter appellee), is the mother and guardian of the other named appellees and appellant is their natural father. In 1960, appellant and appellee began living together, and a total of four children were born of the relationship, one each in 1962, 1965, 1968 and 1972. The parties have never been married to one another and appellant has been lawfully married at all times to another woman, a fact known by appellee since their initial meeting in 1960. From 1960 until 1974, appellee assumed the traditional roles of wife and mother, maintaining the home rearing the children, entertaining appellant's business associates and adopting his surname. They formed, in the true sense of the term, a family unit, and appellee held herself out to the public at large as being married to appellant, a status not discovered by their acquaintances or their children to be false until institution of the present suit. Despite their prolonged cohabitation, the relationship between the parties was less than compatible with repeated periods of separation. Early in 1973, appellee vacated the apartment in which she was residing with appellant and took with her the youngest child. After repeated requests by appellant for appellee to return and resume the family relationship, the parties entered into an agreement dated November 1, 1973, [1] wherein for a recited consideration of $1 and a pledge by appellee to provide a home environment for the four children, appellant agreed to lease to appellee for a period of forty years a home that was in the process of being constructed on land allegedly owned by appellant. The agreement further recited that in the event appellant sold the home during the term of the lease, forty percent of the proceeds would be distributed to appellee and sixty percent to the children, and appellant also agreed to provide for a devise of the home in his will to appellee and the children in the same proportions. Upon signing the agreement, appellee moved back into the apartment and resumed responsibility for the children. Relations between the parties did not improve, and appellee vacated the apartment in March of 1974, prior to the completion of the home that was the subject of the earlier agreement. Appellee subsequently discovered that appellant did not own the lot upon which the home was being constructed, but had instead merely been negotiating with the contractor who owned the lot to construct the home according to certain specifications.
On October 1, 1975, appellee filed suit. As amended, the complaint rested upon two theories-the first in trespass for fraud and deceit for inducing appellee to sign the lease and to move back into the apartment with appellant and the children, and the second in assumpsit for breach of the agreement signed on November 1, 1973. After trial, the jury returned a verdict in favor of appellee for $95,000 as the fair market value of the home. [2] Pursuant to a request by defense counsel, the jury answered a special interrogatory and stated that its award was based upon both the trespass and assumpsit theories. However, the trial court later granted appellant's motion for judgment non obstante veredicto on the fraud counts. The court reasoned that because the measure of damages in a fraud action in Pennsylvania is the "actual loss" rule and not the "loss of value of bargain" rule, see Kaufman v. Mellon Nat'l Bank and Trust Co., 366 F.2d 326 (3d Cir. 1966); Tilghman v. Dollenberg, 418 Pa. 604, 213 A.2d 324 (1965), the verdict for $95,000 could not be sustained on that basis since appellee did not establish an actual loss in that amount. That ruling has not been challenged, and the verdict on appeal must be reviewed solely on the basis of the assumpsit theory of recovery.
Appellant's first contention on appeal is that the contract was "based upon illegal, immoral or meretricious consideration ... against public policy and should not be enforced as a matter of law." (Brief for appellant at 7). In disposing of this claim we decline appellant's offer to espouse the moral, ethical and legal considerations arising from the type of relationship to which the parties voluntarily committed themselves. We find such analysis unnecessary, because the evidence presented was sufficient to establish that the contract was supported by consideration other than the future sexual relationship between appellant and appellee.
While a contractual arrangement founded solely upon consideration paid for the procurement of sexual services would be unenforceable as contrary to public policy, see Baldy v. Stratton, 11 Pa. 316 (1849); Restatement of Contracts § 589 (1932), the mere contemplated cohabitation between negotiating parties does not render them incompetent to form binding contracts regarding other transactions. See e. g., Marvin v. Marvin, 18 Cal.3d 660, 557 P.2d 106, 134 Cal.Rptr. 815 (1976); Tyranski v. Piggins, 44 Mich.App. 570, 205 N.W.2d 595 (1973); Kozlowski v. Kozlowski, 164 N.J.Super. 162, 395 A.2d 913 (1978), 6A Corbin on Contracts § 1476 (1962); Restatement of Contracts §§ 589, 597 (1932). Rather, an agreement founded upon mutual concern for the rearing of the natural bounty of the contracting parties will not be invalidated simply because the parties engaged in sexual conduct prior to the formation of the agreement and may have subsequently continued such relations, when that activity does not form a basis for the agreement.
The evidence presented in the instant case establishes that the relationship between appellee and appellant did not form the basis for the agreement on November 1, 1973. That agreement made no mention of a continuing relationship between appellee and appellant, nor even of an obligation for the parties to resume cohabitation. The only covenant regarding appellee's obligation under the lease was as follows:
"LESSEE, by the acceptance of this lease, does hereby undertake and agree to provide a home in the said dwelling for Dawn Baldassari, Mia Cara Baldassari, Elmo Baldassari and William Baldassari so long as they desire to reside in the said dwelling during the term of this lease."
Appellant also testified that his motive for entering into the agreement was to assure the proper atmosphere for the upbringing of the children. Thus, we find the evidence sufficient to support the conclusion that the purpose of the agreement was to provide a home and family environment for the children and that the agreement was not based upon consideration that was immoral, illicit, meretricious or otherwise contrary to public policy. On this ground, we find appellant's first contention to be without merit.
Appellant next contends that the court erred in permitting appellee to venture an opinion as to the value of the home that was the subject of the lease agreement. [3] In permitting appellee to testify, the trial court extended the rule that an owner of property is competent to venture an opinion as to its value under a presumption of special knowledge arising out of such ownership. See United States v. 534.28 Acres of Land, More or Less, in Huntington County, 442 F.Supp. 82 (M.D.Pa.1977); Silver v. Television City, Inc., 207 Pa.Super. 150, 215 A.2d 335 (1965). Appellant's only challenge to the trial court's action in extending this rationale to include appellee is to draw our attention to section 704 of the Eminent Domain Code, Act of June 22, 1964, Spec.Sess., P.L. 84, Art. VII, § 704, as amended, 26 P.S. § 1-704 (Supp.1979-80), which permits a condemnee to express an opinion regarding the value of property in a proceeding under that code. Appellant reasons that because "condemnee" is usually synonymous with ownership of the property, that Act reflects a legislative judgment that only actual owners are competent to testify to the value of property. We find this reasoning inapplicable for various reasons.
First, the instant proceeding was not brought as an action in eminent domain, and is not governed by the pronouncements of the Eminent Domain Code. Second, the code is not a legislative pronouncement limiting testimony to actual owners, and "condemnee" has been construed to include any party with an interest in the property, including a mere lessee, the status allegedly enjoyed by appellee. See Hoffman v. Commonwealth, 422 Pa. 144, 221 A.2d 315 (1966). Finally, appellant's contention is contrary to the general rule that any person with special knowledge regarding the characteristics of a particular tract of land may venture an opinion as to its value. As the supreme court has stated:
Walnut Street Federal Savings & Loan Assoc. v. Bernstein, 394 Pa. 353, 356, 147 A.2d 359, 361 (1959).
See Porter v. Commonwealth, 454 Pa. 461, 309 A.2d 709 (1973).
In the instant case, appellee testified that she was extensively involved in designing the home and choosing many of...
To continue reading
Request your trial