Brown v. Glenside Lumber & Coal Co.

Concurring Opinion by

Mr. Justice Jones:

Very properly, in my opinion, the majority of this Court now reaffirms our ruling in Neuberg v. Bobowicz, 401 Pa. 146, 162 A. 2d 662 (1960). In this respect, the views expressed in my concurring opinion in Castelli v. Pittsburgh Railways Co., 413 Pa. 17, 22, 23, 195 A. 2d 794 (1963), have not changed.

In dissent, Mr. Justice Roberts has seen fit to “drag” into this appeal a question of the constitutionality of a rule which would permit a husband to recover damages for the loss of his wife’s consortium and deny to a wife the right to recover damages for the loss of her husband’s consortium.1 To do so, Mr. Justice Roberts first assumes the present existence of such a rule.2

*603The question of the constitutionality of such rule— if such be the rule—is not before us. In the first place, counsel for appellant, at oral argument, informed us that he purposely refrained from raising this issue before us or in the court below. In the second place, this Court, time after time, has stated that matters not raised in, or considered by, the court below—even though they involve constitutional questions—cannot be considered on appeal: Chartiers Creek Bridge, 235 Pa. 365, 366, 84 A. 351 (1912); Muse-Art Corp. v. Phila., 373 Pa. 329, 332, 95 A. 2d 542 (1953); Schade v. Allegheny County Inst. Dist., 386 Pa. 507, 513, 126 A. 2d 911 (1956); Archbishop O’Hara’s Appeal, 389 Pa. 35, 46, 47, 131 A. 2d 587 (1957); Wynnewood Civic Association v. Lower Merion Twp, etc., 406 Pa. 413, 419, 179 A. 2d 649 (1962). Unfortunately, Mr. Justice Roberts, for some undisclosed reason, has seen fit to completely ignore counsel’s purposeful waiver of the issue of constitutionality and the well-settled and salutary rulings of our Court in its limitation of issues to be considered on appeal.

Mr. Justice Eagen, speaking for a majority of this Court, restricts himself very properly to a determination of the only issue before us. Mr. Justice Roberts, in raising sua sponte a constitutional issue based, in turn, upon an assumption of the present view of this Court on an issue presently not before us, in my view, by his dissent, simply creates confusion in the minds of the Bench and Bar.

“Consortium” has been defined as the three “S’s”—sex, society and services.

Cf. Bedillon v. Frazee, 408 Pa. 281, 288, 183 A. 2d 341 (1962).