MEMORANDUM
Plaintiffs Henry L. Curry and Margaret Curry instituted this products liability action against Caterpillar Tractor Co. and Kelly Company, Inc., claiming damages resulting from an accident that occurred while Henry Curry was operating a Caterpillar Tractor Co. forklift on a dockboard manufactured by Kelly Company. Plaintiff Margaret Curry has averred in the complaint that she is the wife of plaintiff Henry Curry, and she has set forth a claim for loss of “assistance, society, and consortium” resulting from the injuries sustained by Henry Curry. Defendant Caterpillar *992 Tractor Co. has filed a Motion for Summary Judgment as to Plaintiff Margaret Curry, on the ground that she is not the lawful wife of plaintiff Henry Curry and therefore has no cause of action against the defendant for the alleged loss of “assistance, society, and consortium”. The plaintiffs have filed an Answer to the defendant’s Motion for Summary Judgment, contending that Margaret Curry is entitled to a cause of action for loss of consortium despite the fact that she is not lawfully married to plaintiff Henry Curry. For the reasons hereinafter set forth, this Court will grant the defendant’s Motion for Summary Judgment as to plaintiff Margaret Curry.
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate where no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law. In this case, the affidavits, answers to interrogatories, and depositions establish that there are no genuine issues as to the following facts. The plaintiff, Henry Curry, was married to one Martha Kendrick (not a party to this action) on January 7, 1961. Although Henry Curry and Martha Kendrick Curry subsequently stopped residing together, neither Henry Curry nor Martha Kendrick Curry ever filed for divorce or initiated proceedings to terminate their marriage. Martha Kendrick Curry is alive, and has submitted an affidavit in which she states that to the best of her knowledge and belief she still is married to Henry Curry. Plaintiff Henry Curry has resided with plaintiff Margaret Curry for approximately fifteen years, and was living with her at the time of his accident in May of 1981. There have been three children born of the union of Henry and Margaret Curry. Although Henry Curry and Margaret Curry consider themselves to be husband and wife, Henry Curry has conceded that his marriage to Martha Kendrick Curry never was legally terminated or dissolved.
The parties do not dispute that Pennsylvania law is applicable to this case. The plaintiff has conceded that under Pennsylvania law it “is quite clear that a man with a living wife is utterly powerless to make a valid contract of marriage with another” and that a legal marriage does not exist between plaintiffs Henry and Margaret Curry. Plaintiffs’ Memorandum at 1. The parties also agree that the only issue before this Court is one of law: whether the law of Pennsylvania would recognize the right of an unmarried cohabitant to recover damages for a loss of consortium caused by injuries to the other co-habiting party. This Court predicts that the Supreme Court of Pennsylvania would not permit such cause of action.
Prior to 1974, Pennsylvania law did not permit even a legally married wife to maintain a cause of action for a loss of consortium caused by an injury to the husband.
Neuberg v. Bobowicz,
Following the incorporation of an Equal Rights Amendment to the Pennsylvania Constitution in 1971, the Pennsylvania Supreme Court overruled
Neuberg
and
Brown.
In
Hopkins v. Blanco,
It appears that no Pennsylvania appellate court has considered whether a loss of consortium cause of action arises out of a relationship wherein the parties are not husband and wife. The plaintiff argues that a cause of action for loss of consortium without the necessity of marriage should be judicially created in such a sitúa
*993
tion. The plaintiff calls our attention to
Sutherland v. Auch-Interborough Transit Authority Co.,
The
Sutherland
decision was expressly rejected by a subsequent Pennsylvania court which did not permit a loss of consortium cause of action to the wife even though she was engaged to the husband at the time of the husband’s injury and married him one month after the accident.
Rockwell v. Liston,
71 Pa. D & C 2d 756 (C.P. Fayette Cty.1975). In fact, all of the reported county court cases in Pennsylvania which have ruled on this issue have refused to permit a cause of action for loss of consortium where the plaintiff was not legally married to the injured party at the time of the injury.
Donough v. Vile,
61 Pa. D & C 460 (1947);
Sartori v. Gradison Auto Bus Co., Inc.,
42 Pa. D & C 2d 781 (C.P. Washington Cty.1967);
Rockwell v. Liston,
71 Pa. D
&
C 2d 756 (C.P. Fayette Cty.1975);
Akers v. Martin,
14 Pa. D & C 3d 365 (C.P. Franklin Cty.1980).
Cf. Orga v. Pittsburgh Railways Co., et al.,
It appears that most other jurisdictions which have considered this issue, with the exception of California, have not permitted a cause of action for loss of consortium where the parties are not legally married.
Clifford v. White,
It is not the province of a federal court to determine what the state law should be. The task of the federal court sitting in diversity is to predict how the Supreme Court of the state would rule in the matter.
Becker v. Interstate Properties, et al.,