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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 In 1893, the legislature repealed the Act of 1856, and in its stead enacted the Act of June 8, 1893, P. L. 344, 48 P.S. § 111.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 ...

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