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.
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
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:
"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 ...