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decided: December 4, 1973.


Appeal from order of Superior Court, Oct. T., 1972, No. 26, affirming 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.


George A. Hahalis, with him Terrence C. Grube, for appellants.

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

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Nix joins in this dissenting opinion. Dissenting Opinion by Mr. Justice Manderino.

Author: Eagen

[ 454 Pa. Page 559]

Sarah DiGirolamo was injured in an automobile accident while riding as a passenger in a vehicle operated by Anthony R. Apanavage. At the time she was unmarried and a minor. Approximately one year later she married Anthony Apanavage. Subsequently, as Sarah DiGirolamo Apanavage [appellant], she instituted this action against her husband, Anthony R. Apanavage [appellee] seeking damages in excess of $10,000, alleging he had "operated his motor vehicle in such a careless and negligent manner as to cause . . . extensive personal injuries to the body of the [appellant] . . . ."*fn1

Appellee filed preliminary objections to the complaint, asserting appellant lacked the capacity to sue him because she was his wife. The trial court sustained the preliminary objections and dismissed the complaint. On appeal, the Superior Court affirmed the action of the trial court. DiGirolamo v. Apanavage, 222 Pa. Superior Ct. 74, 293 A.2d 96 (1972).*fn2 We granted allocatur and now affirm.

The basic issue raised in this appeal is whether or not a wife may maintain an action against her husband for personal injuries caused by a tort committed prior to marriage.

By statute enacted in 1856,*fn3 the legislature of this Commonwealth prohibited a married woman from instituting

[ 454 Pa. Page 560]

    a legal action against her husband, except in a few specified situations. One such instance was if the husband deserted or separated himself from his wife, she was given the right to institute an action against him to "recover her separate earnings or property." In 1893, the legislature repealed the Act of 1856, and in its stead enacted the Act of June 8, 1893, P. L. 344, 48 P.S. § 111. In Section 3, the Act of 1893 provided, in relevant part, that thereafter a married woman may sue and be sued civilly, in all respects as an unmarried person, but she could not sue her husband, except in a proceeding for divorce or in a proceeding "to protect and recover her separate property." The Act of 1893 was subsequently supplanted by the Act of March 27, 1913, P. L. 14, § 1, 48 P.S. § 111, but Section 3 of the Act of 1893 was incorporated therein without change.*fn4 Throughout the legislative history of inter-spousal immunity, the legislature has consistently adhered to the use of the term "separate property."

This Court in interpreting the "separate property" language of the inter-spousal immunity statute has consistently adopted the view that unliquidated damages are not property within the meaning of the statute. In

[ 454 Pa. Page 5611863]

, this Court in Miller v. Miller, 44 Pa. 170 (1863), ruled an unliquidated tort claim was not "property" as that term was used in the Act of 1856. The Court adopted the following language: "'[I]s the unliquidated damages arising from permissive waste, the kind of property referred to in the Act of Assembly? As we conceive, the statute was intended to enable her to sue for the recovery of her earnings, and also for her effects, if carried off, either by her husband or others. She might have such a property in a bond or promissory note, as would enable her to maintain an action; but unliquidated damages are not "property", either in common parlance or technical language. If the legislature had intended to give the wife a general power to sue, as a feme sole, it would have said so. . . . The legislature has undertaken to enumerate the cases in which she may sue, and all others are omitted. . . .'" Id. at 171-72.

More recently, in Meisel v. Little, 407 Pa. 546, 180 A.2d 772 (1962), this Court again had an opportunity to construe the meaning of the "separate property" language in the statute and we stated: "unliquidated claims of damage are not 'property' within the meaning of the Act." The Meisel case is directly on point with the instant case. See also Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971). In light of the consistent position of this Court on the meaning of the term "separate property," and the fact that the legislature has failed to change the language of the statute, we must presume that the interpretation given to the pertinent language is consistent with the legislative design.

Moreover, the view that an unliquidated damage claim is not "separate property", is not only consistent with the legislative design, but it is also valid for two other reasons. First, property may be defined in a number of ways, but one of the more workable definitions

[ 454 Pa. Page 562]

    is: the right of any person to possess, use, enjoy, and dispose of a thing. Cf. Willcox v. Pennsylvania Mutual Life Insurance Co., 357 Pa. 581, 55 A.2d 521 (1947). An unliquidated damage claim does not enjoy all the attributes of property, however, since it may not be assigned. See Sensenig v. Pennsylvania R. R., 229 Pa. 168, 78 A. 91 (1910); Manganiello v. Lewis, 122 Pa. Superior Ct. 435, 186 A. 218 (1936). Hence, an individual may not "dispose" of an unliquidated damage claim in a manner in which he may normally dispose of other objects. Secondly, our legislature did not let the matter of inter-spousal immunity die with the enactment of the Married Women's Property Act,*fn5 which invested the wife with the legal power of owning "every species and description of property, whether consisting of real, personal or mixed which may be owned by or belong to any single woman. . . ." By itself, the effect of the language of this Act may have been to abolish the common law immunity between spouses; however, our legislature went further and preserved some of the common law by enacting the statute herein under discussion. If "separate property" is read in the instant statute as having the same meaning as "every species and description of property" in the Married Women's Property Act, the inter-spousal immunity statute would be meaningless, since every suit between spouses would be to protect or recover "separate property." It is therefore apparent "separate property" as defined in the immunity statute has to be lesser in scope than an all encompassing definition of property.

We are urged to follow the reasoning of Falco v. Pados, supra, a case involving parental immunity, as well as the decisions of other jurisdictions dealing with

[ 454 Pa. Page 563]

    inter-spousal immunity,*fn6 and do away with the present immunity doctrine. The difficulty, however, is the instant decision is controlled by a specific state statute. It is the function of this Court to interpret statutes, not rewrite them. If we were dealing with a rule promulgated in decisional law, we would be free to re-examine the reasoning underlying the rule, as well as the public policy considerations. However, we are here confronted with a statute enacted by the legislature, and we cannot and should not interpose our views on public policy for those of the legislature. The wisdom of a statutory provision is not for us to say.

Order affirmed.


Order affirmed.

Dissenting Opinion by Mr. Justice Roberts:

The Court today, in the name of fidelity to legislative intent, permits perpetuation of a judicially created immunity. Not only is this Court alone responsible for the existence of spousal immunity in Pennsylvania, but the process leading to adoption of this unfortunate rule is a classic example of blind adherence to precedent. The majority recognizes, as well it must, that social policies which may at one time have justified spousal immunity have ceased to exist, but claims to be bound by the pronouncements of the Legislature. Although the Legislature has addressed the question of spousal immunity, its enactments, as well as current public policy, compel abolition, not retention, of this antiquated doctrine. I cannot join in a decision which refuses to correct this erroneous construction of legislative intent. This Court has acted to abolish other unjust,

[ 454 Pa. Page 564]

    irrational immunities*fn1 and should not hesitate at this late date to permit married persons their full status before the law.

The majority's sole reason for denying appellant relief is its interpretation of the Married Womens Acts. To the contrary, Pennsylvania statutes affirmatively mandate that married women be permitted to sue their husbands for tortious conduct. The majority, however, prefers to follow outmoded and mistaken case law and holds that a married woman's tort claim is not her "separate property."

The first Married Womens Act enacted in Pennsylvania was the Act of April 11, 1848.*fn2 This Act provided that "property of whatever name or kind, which shall accrue to any married women during coverture by will, descent, deed of conveyance or otherwise, shall be owned, used and enjoyed by such married women as her own separate property . . . ."*fn3

The next act dealing with married women's rights was the Act of April 11, 1856.*fn4 Section three of the Act of *fn18565 does not, as the majority asserts, "prohibit . . . a married woman from instituting a legal action against her husband, except in a few specified situations." That section, the only part of the Act pertaining to suits between husband and wife, does not prohibit anything. It merely grants a married woman, inter alia, a right of action to recover separate property when deserted or neglected by her husband. There is

[ 454 Pa. Page 565]

    no indication that the Legislature intended to deny married women any other rights of action.

The most telling argument against the majority's conception of legislative intent is found in the language of the Act of June 3, 1887.*fn6 Section two of that Act provided: "A married woman shall be capable of entering into and rendering herself liable upon any contract relating to any trade or business in which she may engage, or for necessaries, and for the use, enjoyment and improvement of her separate estate, and for suing and being sued, either upon such contracts or for torts done to or committed by her, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff, or defendant, or be made a party to any action, suit or legal proceeding of any kind brought by or against her in her individual right; and any debt, damages or costs recovered by her in any such action, suit or proceeding shall be her separate property, and any debt, damages or costs recovered against her in any such action, suit or other proceeding shall be payable out of her separate property and not otherwise." This language conclusively establishes that as of June 3, 1887, the Legislature considered that the contract and tort rights of a married woman were her separate property.

It is true that the 1887 Act was repealed by a later statute, the Act of June 8, 1893.*fn7 However, the existence

[ 454 Pa. Page 566]

    of the 1887 Act demonstrates that a married woman's unliquidated tort claim is her "separate property." No subsequent statute declares otherwise. The Act of 1893 merely provided that a woman could "not sue her husband, except in a proceeding to protect and recover her separate property . . . ."*fn8

If a married woman is "capable of . . . suing and being sued . . . as if she were a feme sole " and if "any debt, damages or costs recovered by her . . . shall be her separate property," then this section admits of a single interpretation. Nowhere does the 1893 Act state that a chose in action, such as an unliquidated tort claim, may not be a married woman's "separate property." Nowhere does it repeal the 1848 Act's declaration that "property of whatever name or kind" may be a married woman's "separate property."

This brief recital of the statutory history clearly illustrates the majority's error in following Meisel v. Little,

[ 454 Pa. Page 567407]

Pa. 546, 180 A.2d 772 (1962). The majority, as did the Meisel Court, states ex cathedra that section three of the Act of *fn18939 codifies the common law of inter-spousal immunity.*fn10 How could the Legislature

[ 454 Pa. Page 568]

    have impliedly codified the common law in 1893 when it had, only six years earlier, abrogated the commonlaw

[ 454 Pa. Page 569]

    rule which gave a husband title to all his wife's property -- the very rule upon which the common law based the doctrine of inter-spousal immunity? The Legislature in 1887 answered the question now before us when it provided that a married woman's tort claims and recoveries are her separate property. No legislative enactment has since manifested a contrary intent.

The majority's assertion that equating "every species and description of property"*fn11 with "separate property" renders the Act of 1893 meaningless is likewise illfounded. "Separate property" is merely a shorthand description of that which is held individually. Property not held by an individual, that is, a tenancy by the entireties, or a joint tenancy, may not be the subject

[ 454 Pa. Page 570]

    of a suit between husband wife.*fn12 However, the Legislature has provided that married women may sue their husbands to protect any property ("every species and description of property") held separately ("separate property").*fn13

If one refuses to accept the evidence of legislative abrogation of common-law spousal immunity, even the most grudging analysis of the Married Women's Acts shows that the Legislature has not codified the common law. Because this is the case, this Court, as a common-law court, is free to modify or abolish common-law spousal immunity.

Here, we need revise only the construction of the term "separate property" adopted by earlier members of this Court. Refusal to carry out this integral component of our judicial duty -- re-examination of outmoded precedent in the light of current public policy -- deprives Mrs. Apanavage of her right to be compensated for negligently-inflicted bodily injuries.

Any doubt as to the wisdom of abolishing spousal immunity, this vestige of medieval England, is quickly dispelled by examining the archaic policies undergirding the doctrine and their treatment by the courts of this and other states.*fn14 Retention of inter-spousal immunity

[ 454 Pa. Page 571]

    for premarital torts may not be supported by reference to the common-law "fictional unity of husband and wife." Johnson v. Peoples First National Bank & Trust Co., 394 Pa. 116, 120, 145 A.2d 716, 718 (1958). This fictitious concept was largely dissipated by the widespread enactment of "Married Women's Acts" in the mid-nineteenth century. Immer v. Risko, 56 N.J. 482, 267 A.2d 481 (1970). See also Freehe v. Freehe, 81 Wash. 2d 183, 500 P.2d 771 (1972); W. Prosser, Handbook of the Law of Torts § 122 (4th ed. 1971).

Likewise, fear of collusive claims between husband and wife does not warrant retention of spousal immunity. Courts are daily required to separate the artificial from the genuine.

"In the last analysis it is much to be preferred that we depend upon the efficacy of the judicial process to ferret out the meritorious from the fraudulent rather than using a broad broom to sweep away a class of claims, a number of which are admittedly meritorious." Falco v. Pados, 444 Pa. 372, 381, 282 A.2d 351, 356 (1971).

Finally, the notion that liability will provoke family disharmony is a highly unrealistic basis for preserving

[ 454 Pa. Page 572]

    inter-spousal immunity.*fn15 What Mr. Justice Eagen said in Falco v. Pados, with regard to arental immunity to equally applicable here.

"The speculative theory of family disruption upon which the doctrine of . . . immunity is largely based has been criticized and rejected by legal scholars without exception. As they point out, it is the injury itself which is the disruptive act, and with today's skyrocketing health costs, one which often works the greatest hardship on the family unit. In a time of almost universal liability insurance, such unexpected hardship or ruin is needlessly inflicted by the immunity doctrine." Id. at 379-80, 282 A.2d at 355.

The family disharmony theory is especially speculative since notwithstanding appellee's negligent conduct, appellant and appellee were subsequently married. Obviously, the existence of a claim for negligence was not a deterrent to their marriage. Nor was it a threat to marital harmony and family unity.

"[T]he only time one spouse will seek to secure the benefits of a judgment against the other in a trespass case will be in those instances where, as here, the husband has provided a fund for the satisfaction of such judgments by contract or liability insurance. This presents a situation which is especially and particularly free from concern that efforts to satisfy the judgment entail possibilities of a marital discord. Undoubtedly, a wife is one of the persons a husband most desires to protect by his purchase of insurance, yet this protection is precisely what the 'majority' needlessly precludes." Daly v. Buterbaugh, 416 Pa. 523, 543, 207 A.2d 412, 421 (1964) (Roberts, J., dissenting).

[ 454 Pa. Page 573]

Today's tendency is to view spousal immunity, as well as other immunities, "with a considerable degree of disapproval."*fn16 Presently, twenty-two states have abrogated tort immunity between husband and wife.*fn17 It is time this Court recognized that the policies that motivated the English common-law courts to bar inter-spousal suits have long since been discredited. Indeed, the English Court of the King's Bench has held an unliquidated tort claim arising from an antenuptial tort to be "separate property." Curtis v. Wilcox, 2 K.B. 474, 2 All Eng. 573 (1948). We too have the power to abolish this outmoded doctrine; we ought not shirk our responsibility through obsequious deference to a mistaken conception of the Legislature's intent.

Finally, it must be noted that the majority's refusal to grant Mrs. Apanavage her day in court violates Article I, Section 11 of the Pennsylvania Constitution. Our Declaration of Rights mandates that "[a]ll courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law*fn18 . . . ." The majority today asserts that this Court may not vindicate appellant's rights because the Legislature has, by the Act of

[ 454 Pa. Page 5741893]

, amended Article I, Section 11, to read: "Every person, except if she be a married woman suing her husband for personal injury . . . shall have remedy by due course of law."

Attribution of this intent to the Legislature assumes the unconstitutionality of the Act of 1893. It is our duty, when possible, to interpret statutes in such a way that they will be constitutional. We may carry out this responsibility here by, as the Legislature in fact intended, construing "separate property" to include a married woman's tort claims.

Despite current public policy, the Legislature's declared intent, and the mandate of our Constitution, the majority refuses to afford Mrs. Apanavage her day in court. Even if the majority were not inclined to abolish inter-spousal immunity generally, it should take at least the first step and not apply this antiquated doctrine to the antenuptial tort in this case. There is no rational reason why this woman should be denied the right due every person -- to have remedy for injury by due course of law.

I dissent.

Dissenting Opinion by Mr. Justice Manderino:

I dissent. The statute in this case which deprives a married woman of her right to file a legal claim is unconstitutional. The legislature cannot grant immunity from suit to any person who has wronged another. There is no authority in the Pennsylvania Constitution which permits the legislature to deprive anyone of the opportunity to redress a wrong. In fact, the Declaration of Rights (Pa. Const. art. I, § 11) specifically provides that ". . . every man for an injury done him in his lands, conditions, person or reputation shall have remedy by due course of law. . . ." See Brown v. Commonwealth,

[ 454 Pa. Page 575453]

Pa. 566, 305 A.2d 868 (1973) (Manderino, J., dissenting).

The above section of the Declaration of Rights, in the context of the entire Declaration, obviously uses the word man as a reference to human beings, and not as a reference to the male of the human species. The full protections of the Declaration of Rights are available to females as well as males. A legislative enactment which provides any defendant with immunity from suit is unconstitutional.

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