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DIGIROLAMO ET UX. v. APANAVAGE (06/15/72)

decided: June 15, 1972.

DIGIROLAMO ET UX., APPELLANTS,
v.
APANAVAGE



Appeal from order of Court of Common Pleas of Northampton County, Oct. T., 1970, No. 303, in case of Lawrence DiGirolamo and Sarah DiGirolamo Apanavage v. Anthony R. Apanavage.

COUNSEL

George A. Hahalis, for appellants.

Jackson M. Sigmon, with him Sigmon, Briody, Littner & Ross, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Dissenting Opinion by Packel J. Hoffman and Spaulding, JJ., join in this dissent.

Author: Per Curiam

[ 222 Pa. Super. Page 74]

Order affirmed.

Disposition

Order affirmed.

Dissenting Opinion by Packel, J.:

Unless and until the Supreme Court or the General Assembly speaks, the inter-spousal immunity for personal injuries sustained during marriage is binding upon this Court. There is no reason, however, to extend the doctrine, so often criticized, to make it applicable to a pre-marital tort. Certainly, it is not within the

[ 222 Pa. Super. Page 75]

    province of this Court to depart from recent rulings of the Supreme Court upholding the immunity, but it is not bound by the uncertain precedent of the only two Supreme Court cases, possibly conflicting, involving pre-marital torts.

In Meisel v. Little, 407 Pa. 546, 549, 180 A.2d 772, 773 (1962), the Court, without any detailed or justifiable analysis, concluded that: "Unliquidated claims of damage are not 'property' within the meaning of the Act." Accordingly, recovery was denied. In Ondovchik v. Ondovchik, 411 Pa. 643, 192 A.2d 389 (1963), judgment was entered in favor of a wife against her additional defendant-husband on a suit begun before the parties were married. It would appear that the decision was based on the alternative grounds that suit had been brought before the marriage and that the wife had not brought the suit against her husband but that he had been brought in by the original ...


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