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KELSO ET AL. v. MIELCAREK (12/11/73)

decided: December 11, 1973.

KELSO ET AL., APPELLANTS,
v.
MIELCAREK, JR.



Appeal from judgment of Court of Common Pleas of Lawrence County, No. 268 of 1971 C. A., in case of Beth Ann Kelso, a Minor, by Howard E. Kelso, Parent and Guardian Ad Litem and Howard E. Kelso, in his own right, v. Joseph Mielcarek, Jr.

COUNSEL

Alfred V. Papa, for appellants.

Robert B. Truel, with him John F. Ploeger, and Truel and Ploeger, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Concurring Opinion by Hoffman, J.

Author: Per Curiam

[ 226 Pa. Super. Page 476]

Judgment affirmed.

Disposition

Judgment affirmed.

[ 226 Pa. Super. Page 477]

Concurring Opinion by Hoffman, J.:

I join in this Court's Per Curiam Order, but feel constrained to express my disapproval of the reaffirmance of inter-spousal immunity, especially where the doctrine is invoked to bar suit between spouses for a pre-marital tort.

On September 21, 1969, minor appellant Beth Ann Kelso, then single, was riding in a vehicle operated by the appellee, Joseph Mielcarek, Jr., who lost control of his vehicle and struck a telephone pole injuring the minor appellant. Miss Kelso brought a trespass action with her father against the appellee on April 30, 1971. Subsequent to the institution of this suit, the appellant and appellee were married on June 19, 1971. On May 4, 1972, the lower court granted appellee's summary judgment because of inter-spousal immunity.

On December 4, 1973, the Supreme Court of Pennsylvania upheld inter-spousal immunity in a case where wife sued husband after their marriage for a pre-marital tort.*fn1 The Majority recognizing that, perhaps, the reasons for the immunity were unsupportable in light of modern-day policy, held that "the instant decision is controlled by a specific ...


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