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decided: December 21, 1979.


No. 46 January Term, 1978, Appeal from the Order of Superior Court filed July 21, 1977 at No. 2327, October Term, 1976, affirming the Order of June 30, 1976, Court of Common Pleas, Civil Action - Law, Northampton County, at No. 245, August Term, 1975.


Charles H. Spaziani, Gary Neil Asteak, Easton, for appellant.

Richard Stevens, Allentown, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case. Eagen, C. J., concurs in the result.

Author: Roberts

[ 487 Pa. Page 404]


We are asked to determine whether the Married Women's Property Act bars a divorced woman from suing her ex-spouse on a cause of action which arose while the

[ 487 Pa. Page 405]

    parties were married.*fn1 We hold that the Act does not preclude suit by an ex-spouse. It provides only that a "married woman . . . may not sue her husband," and does not address, preclude or otherwise limit the right of ex-spouses to sue each other. We reverse the order of the Superior Court and remand with instructions.

On January 26, 1970 appellant Betty Lou Turner filed an action in divorce against appellee Charles A. Turner. On February 6, 1974, while the divorce action was still pending, appellant was injured in an automobile accident while she was a passenger in a car operated by appellee. A decree of divorce was granted on April 29, 1974. On September 23, 1975 appellant filed an action in trespass against appellee for negligent infliction of injuries she sustained in the automobile accident. At a pretrial conference, the parties agreed to submit to the court the issue of the applicability of the doctrine of inter-spousal immunity. The Court of Common Pleas of Northampton County granted summary judgment for appellee based on this doctrine. The Superior Court affirmed, and this Court granted allowance of appeal.*fn2

The court of common pleas and the Superior Court assumed, as does appellee here, that the doctrine of inter-spousal immunity applies to this case. This assumption, based on a view that marital status at the time of injury controls, is erroneous. The oft-quoted statement of the doctrine is that "a spouse may neither sue nor recover on a tort claim from the other spouse while the parties are married." Policino v. Ehrlich, 236 Pa. Super. 19, 21, 345 A.2d 224, 226, rev'd on other grounds, 478 Pa. 5, 385 A.2d 968 (1978). Here, however, appellant is not suing her "spouse while the parties are married." The doctrine is also said to be derived from the Married Women's Property Act. DiGirolamo v. Apanavage, 454 Pa. 557, 312 A.2d 382 (1973); Daly v. Buterbaugh, 416 Pa. 523, 207 A.2d 412 (1964). The Act provides that:

[ 487 Pa. Page 406]

"Hereafter a married woman may sue and be sued civilly, in all respects, and in any form of action, and with the same effect and results and consequences, as an unmarried person; but she may not sue her husband, except in a proceeding for divorce, or in a proceeding to protect and recover her separate property; nor may he sue her, except in a proceeding for divorce, or in a proceeding to protect or recover his separate property."

But appellant at institution of suit was no longer a "married woman," nor appellee her "husband." The statute and our cases interpreting it make clear that suit is precluded only when, at the time of its institution, the parties are married.*fn3

The express terms of the Act and our case law plainly demonstrate that it is not the existence of the marital relationship at the time that the injury occurs which is controlling. Rather, it is the existence of the marital relationship at the time of suit which is determinative. The Act, for example, has been held to bar a husband or wife from suing on torts occurring prior to the marriage. DiGirolamo v. Apanavage, supra; Meisel v. Little, 407 Pa. 546, 180 A.2d 772 (1962). Spouses attempting to recover for prenuptial torts, however, come within the express prohibition of the statute. Hence it must be concluded that here, where at the institution of suit the parties are no longer "spouses," no disability exists.

So too on other occasions our Court has refused to prohibit suit where the marital relationship has terminated. In Johnson v. Peoples First National Bank and Trust Company, 394 Pa. 116, 145 A.2d 716 (1958), we held that a widow was

[ 487 Pa. Page 407]

    not barred from suing her deceased husband's estate for personal injuries arising out of an automobile accident which occurred during their marriage. There this Court stated:

"The tort of a husband or wife which visits injury upon the wife or husband results in a cause of action; by reason of public policy such cause of action cannot be enforced during coverture. . . . Danger to marital happiness and harmony arises not from the existence of a cause of action arising from the tort, but rather from its enforcement. Death having terminated the marriage, domestic harmony and felicity suffer no damage from the allowance of the enforcement of the cause of action."

Id., 394 Pa. at 121, 122, 145 A.2d at 718, 719 (emphasis in original).

The reasoning in Johnson is completely applicable to the present case. Whether marriage is terminated by death or divorce, there is no bar to the enforcement of an existing cause of action by a former spouse. Here as in Johnson, neither the express language of the Married Women's Property Act, our case law nor any policy considerations preclude suit.

Since we hold that the trial court and the Superior Court erroneously concluded that the doctrine of inter-spousal immunity barred appellant's claim, we reverse the order of the Superior Court, vacate the order of the trial court granting summary judgment, and remand for proceedings consistent with this opinion.*fn4

Appellant also maintains that our holding in DiGirolamo, supra, that unliquidated damages are not "separate property" within the language of the Married Women's Property Act, is not applicable to this case. She contends that when sought by a divorced party, such damages would constitute "separate property."

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