Opinion
December 9, 1975.
April 22, 1976.
Trespass Action — Husband and wife — Doctrine of interspousal immunity — Parties not married at time of accident — Parties to action married prior to commencement of action — Trespass actions between spouses prohibited.
1. The plaintiff was a passenger in a car operated by the defendant and was injured in an automobile accident. At the time of the accident the parties to this trespass action were not married, although subsequently they did marry. The plaintiff then commenced an action in trespass against her husband. It was Held that the court below properly sustained the defendant's preliminary objections and dismissed the complaint.
2. Interspousal trespass actions are prohibited in Pennsylvania.
3. The preservation of family unity, harmony, and integrity does not allow interspousal trespass actions.
Constitutional Law — Article I, § 28 of Pennsylvania Constitution — Equality of rights provision of Constitution — Equality of rights provision not applicable to interspousal actions.
4. Article I, § 28 of the Pennsylvania Constitution, which provides: "Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual," does not apply to interspousal tort actions.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 1770, Oct. T., 1975, from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1975, No. 3915, in case of Catherine Linda Smith v. Robert Smith. Order affirmed.
Trespass for personal injuries.
Order entered sustaining preliminary objections by defendant in nature of a demurrer, order by GREENBERG, J. Plaintiff appealed.
Seymour Kanter, and Kanter, Bernstein Miller, for appellant. Edward R. Paul, James M. Marsh, and LaBrum and Doak, for appellee.
SPAETH, J., concurred in the result.
Submitted December 9, 1975.
Again we are asked to reconsider the doctrine of interspousal immunity from tort action. In this case, appellant, a passenger in appellee's car, was injured when the automobile which appellee was driving allegedly left the road and ran into a tree. At the time of this happening, the parties were not married. Subsequently they did marry and thereafter appellant filed a complaint in trespass against her husband. Appellee's preliminary objections were sustained and the complaint was dismissed. It is from the Order of dismissal that this appeal is taken.
The doctrine of interspousal immunity from tort action is of ancient origin and has come under frequent attack of late. Appellant posits that the doctrine should be overturned because it deprives an individual, albeit he or she, the spouse of the opposing party, of a valuable property right. This position has not been adopted by our Commonwealth's Courts. Appellant further suggests that Article I, § 28, of the Pennsylvania Constitution should allow suits in tort between spouses: "Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual."
We do not agree. The above-cited Constitutional language does not address the interspousal situation. Inequality based upon the sex of either spouse is not the concern of the challenged doctrine. Rather it is the long-held notion that the preservation of family unity, harmony, and integrity does not allow interspousal tort actions. The concern also goes to whether a suit between husband and wife, on a tort claim, can be truly adversary. Judge HOFFMAN, in Policino v. Ehrlich, 236 Pa. Super. 19, 345 A.2d 224 (1975) and concurring in Kelso v. Mielcarek, 226 Pa. Super. 476, 477, 313 A.2d 324 (1973), correctly points out that we are bound by the precedent of our Supreme Court. Finding no Constitutional infirmity in the challenged doctrine, we rely on DiGirolamo v. Apanavage, 454 Pa. 557, 312 A.2d 382 (1973), and reiterate the prohibition against interspousal tort suits in the Commonwealth.
Order affirmed.
SPAETH, J., concurs in the result.