Restifo v. McDonald

*12Dissenting Opinion by

Mr. Chief Justice Bell:

The General Release in this case is crystal clear, totally and completely comprehensive and all-inclusive. It encompasses within its boundaries a release and a forever-discharge of Eleanor Restifo from all claims and demands and actions and suits at law or in equity which the imagination of man can conceive. Yet the Majority blandly ignore its clear language and its clear meaning, and drastically rewrite this General Release in order to achieve what they believe is equitable.

Changing the clear language and the clear meaning of statutes, contracts, written instruments, wills, and even the Constitution itself, or rewriting them, has been considered, until recently, beyond the powers, functions and duties of a Court. Furthermore, this General Release of every imaginable claim is made even more impregnable (except for fraud) and ironclad by the specific and particular provision which supplements the general provision and releases defendant, beyond even the peradventure of a doubt, from all claims on account of all injuries both to person or property resulting or to result from the accident which occurred on or about the 20th day of August 1963, at the time and place stated therein.

This General Release is the clearest and most comprehensive ever drawn, and it has become virtually a universally used document. Such General Releases have become, at the whim of the Majority of the present Court, relatively or virtually meaningless. It is regrettable to have to say that today statutes, contracts and every form and kind of written agreements, and even the clearest provisions of the Constitution of Pennsylvania and the Constitution of the United States, under the decisions of this Court, mean not what they clearly say, nor what prior Courts have often construed them to say and mean, but mean what the Majority of the present Court sincerely believe, *13under the facts of a particular case and in the interest of equity or justice, they should have said, but didn’t.

In order to achieve their result, the Majority have expressly overruled five recent decisions of this Court which are directly and squarely in point: Polley v. Atlantic Refining Company, 417 Pa. 549, 207 A. 2d 900; Rimpa v. Bell, 413 Pa. 274, 196 A. 2d 738; Moyer v. Independent Oil Company, 401 Pa. 335, 164 A. 2d 552; Mayer v. Knopf, 396 Pa. 312, 152 A. 2d 482; Killian v. Catanese, 375 Pa. 593, 101 A. 2d 379. We pause to ask: How, under the Majority Opinion, is it possible to have an effective General Release? How is it possible, unless it is a hybrid general and particular release which specifies and specifically includes therein every particular event which occurs or ever may occur, and every fact and every situation which arises or ever may arise?

To summarize, there is absolutely no reason or justification whatever for overruling the aforesaid recent prior decisions of this Court.

Stare Decisis and Its Exceptions

I am very greatly disturbed by the virtual elimination of the principle of stare decisis, on which the House of Law was built. In the last half dozen years the Supreme Court of Pennsylvania has overruled cases in over forty different areas of the law which had been, prior thereto, firmly established. Today no one knows from week to week, or from Court session to Court session, whenever the Supreme Court meets, what the law will be tomorrow, or what are one’s rights, privileges, responsibilities and duties.

In a Constitutional republican form of Government such as ours, which is based upon law and order, Certainty and Stability are essential. Unless the Courts establish and maintain certainty and stability in the law, Government cannot adequately protect law-abid*14ing persons or communities against criminals; businessmen cannot safely and wisely make contracts Avith their employees or with each other; the meaning of wills, bonds, contracts, deeds and leases will fluctuate and change with each change in the personnel of a Court; property interests and property rights will be jeopardized and frequently lost or changed; private citizens will not know their rights and obligations; and public officials will not know from week to week or month to month the powers and limitations of Government. This has been recognized for centuries by English-speaking peoples. Lord Coke, Chief Justice of England, thus wisely expressed (circa 1600) these truths: “The knowne certaintie of the law is the safetie of all.” This has been a beacon light for Anglo-American Courts, for text authorities, and for law-abiding Americans ever since the foundation of our Country. In the realm of the law it is usually expressed in the principle known as Stare Decisis. Stare Decisis is one of the bed-rocks upon Avhich the House of Law has been errected and maintained.

Mr. Justice Frankfurter, in his concurring Opinion in Green v. United States, 356 U.S. 165, 192 (1958), said: “To be sure, it is never too late for this Court to correct ... an occasional decision, even on a rare occasion to change a rule of law that may have long persisted but also have long been questioned and only fluctuatingly applied. To say that everybody on the Court has been wrong for 150 years [75 years] and that that which has been deemed part of the bone and sinew of the law should now be extirpated is quite another thing .... The admonition of Mr. Justice Brandéis that we are not a third branch of the Legislature should never be disgarded.”*

In Brown v. Allen, 344 U.S. 443 (1953), Mr. Justice Jackson (in a concurring Opinion on the abuse *15of the writ of habeas corpus) aptly and pertinently said (page 585) : “Rightly or wrongly, the belief is widely held by the practicing profession that this Court no longer respects impersonal rules of law but is guided in these matters by personal impressions which from time to time may be shared by a majority of Justices. Whatever has been intended, this Court also has generated an impression in much of the judiciary that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fixed principles.”

Mr. Justice Douglas, who is generally regarded as the leading opponent of stare decisis, in an article written for the Columbia Law Review of June 1949, Vol. 49, p. 735, said: “Uniformity and continuity in law are necessary to many activities. If they are not present, the integrity of contracts, wills, conveyances and securities is impaired. And there will be no equal justice under law if a negligence rule is applied in the morning but not in the afternoon. Stare decisis provides some moorings so that men may trade and arrange their affairs with confidence. Stare decisis serves to take the capricious element out of law and to give stability to a society. It is a strong tie which the future has to the past.”

Exceptions

It is obvious, if we are to progress, that there always will be exceptions to every general rule or principle, and that neither the law nor the principle of stare decisis can or should be as immutable as the laws of the Medes and the Persians. Nevertheless, it is obvious, at least to me, that the principle of stare decisis should not be ignored or extirpated, actually or effectually, merely or principally because of changes in the personnel of the Court. Mr. Justiee Frankfurter has stated the two exceptions which to him seem justifiable. I agree with him, and while I would express the same *16thoughts a little differently, I would go further. I would hold that the principle of stare decisis should always be applied, irrespective of the changing personnel of this (or any Supreme) Court, except in the two situations set forth by Justice Frankfurter and in the following situations: (1) where the Supreme Court of Pennsylvania is convinced that prior decisions of the Court are irreconcilable, or (2) the application of a rule or principle has undoubtedly created great confusion, or (3) in those rare cases where the Supreme Court is convinced that the reason for the law undoubtedly no longer exists, and modern circumstances and justice combine to require or justify a change, and no one’s present personal rights or vested property interests will be injured by the change. Change of circumstances or modern circumstances does not mean, nor has it ever heretofore been considered as the equivalent of “change of personnel in the Court,” or the substitution of the social or political or economic philosophy of a Judge for the language of the Constitution or of a written instrument, or for well settled principles of law.

Mr. Justice Owen J. Roberts, Pennsylvania’s most illustrious member of the Supreme Court of the United States, in a dissenting Opinion in Smith v. Allwright, 321 U.S. 649, 669, thus aptly and strikingly expressed his views concerning the erosion or abolition of the principle of stare decisis: “The reason for my concern is that the instant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance, in view of current decisions, that the opinion announced today may not shortly be repudiated and overruled by justices who deem they have new light on the subject.”

Mr. Justice Eagen well expressed the same concern for stare decisis in the recent case of Commonwealth *17v. Woodhouse, 401 Pa. 242, 253, 164 A. 2d 98 (1960): “. . . Unquestionably, in a republican form of government as we are privileged to enjoy, order, certainty and stability in the law are essential for the safety and protection of all. Stare Decisis should not be trifled with. If the law knows no fixed principles, chaos and confusion will certainly follow .... If it is clear that the reason for a law no longer exists and modem circumstances and justice require a change, and no vested rights will be violated, a change should be made.”

Chief Justice Black and Chief Justice Charles Alvin Jones so aptly expressed the principles which should govern the Courts of Pennsylvania, irrespective of the social or political philosophy of the constantly changing members of the Court, that at the risk of piling Pelion upon Ossa, we shall quote what they so wisely said.

In Michael v. Hahnemann Medical College and Hospital of Philadelphia, 404 Pa. 424, Chief Justice Jones, speaking for the Court as recently as June 27, 1961, vigorously urged adherence by Courts to the principle of stare decisis and, inter alia, said: “What Chief Justice Black said for this court in McDowell v. Oyer, 21 Pa. 417, 423 (1853), concerning stare decisis, is presently most apposite, viz., ‘It is sometimes said that this adherence to precedent is slavish; that it fetters the mind of the judge, and compels him to decide without reference to principle. But let it be remembered that stare decisis is itself a principle of great magnitude and importance. It is absolutely necessary to the formation and permanence of any system of jurisprudence. Without it we may fairly be said to have no law; for law is a fixed and established rule, not depending in the slightest degree on the caprice of those who may happen to administer it . . . ”

We once again repeat the words of Mr. Justice Jackson : “. . . this Court has generated an impression *18in much of the judiciary [and of the Bar] that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fixed principles Moreover, the majority fail to realize that when they so frequently change the law and overrule well-established principles, they not only make it impossible for every Judge, public official, lawyer and citizen to know what the law is in a particular field and govern his actions accordingly, but they also greatly increase litigation and Court backlogs because of the well-founded belief that our future decision in any matter or on any set of facts is completely unpredictable.

For each and all of the aforesaid reasons, I would affirm the judgment of the lower Court.

Italics throughout, ours.