226 Pa. Super. 476 | Pa. Super. Ct. | 1973
Concurrence Opinion
I join in tills Court’s Per Curiam Order, but feel constrained to express my disapproval of the reaffirmance of interspousal immunity, especially where the doctrine is invoked to bar suit between spouses for a pre-marifal tort.
On September 21, 19(59, 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 interspousal immunity.
On December 4, 1973, the Supreme Court of Pennsylvania upheld interspousal immunity in a case where wife sued husband after their marriage for a pre-marital tort.
I call upon our Supreme Court to reconsider its position at the first opportunity that presents itself. The highest court of this Commonwealth should not supply specificity to imprecise legislative words, so as to uphold and extend, what remains an anachronistic, if not unconstitutional,
As we are bound by the decisions of our Supreme Court, I concur in the result of the majority.
DiGirolamo v. Apanavage, 454 Pa. 557, 312 A. 2d 382 (1973).
Justice Roberts filed a vigorous dissent rejecting the notion that the Supreme Court was bound by a legislative enactment in this case. Justice Roberts traced the legislative history of the several Married Womens Acts starting in 1848 and up to the present statute appearing at the Act of March 27, 1913, P. L. 14, §1, 48 P.S. §111. The present statute does not expressly deny the wife a cause of action against her husband for a personal tort The Section provides that suits will be maintainable to “protect and recover . . . separate property.” Nowhere in the Act is the concept of “separate property” defined. In fact, in the Act of 1887, P. L. 332, §§1-7, the Legislature expressly permitted the wife to recover
We are a government of “checks and balances,” and when one branch exceeds its authority or abuses its power the other must rectify the mistake. As such, the Legislature may not by enactment limit or enlarge the Constitution, which derives from the People. When it so acts, the judiciary is empowered with the power and duty to strike down inconsistent provisions appearing in statutes, orders or other acts. Legislatively-created immunity, of whatever type or nature, is unconstitutional. As Justice Manderino said in his dissenting opinion to DiGirolamo: “A legislative enactment which provides any defendant with immunity from suit is unconstitutional.” 454 Pa. at 575.
Lead Opinion
Opinion
Judgment affirmed.