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POLICINO v. EHRLICH (09/22/75)


decided: September 22, 1975.


Appeal from order of Court of Common Pleas of Montgomery County, No. 70-08771, in case of Linda Policino, a minor, by Albert A. Hartman and Lillian R. Hartman, her parents and natural guardians, and Albert A. Hartman and Lillian R. Hartman v. Alan Jeffery Ehrlich and Leonard Policino, additional defendant.


Irwin S. Lasky, for appellant.

Charles Jay Bogdanoff, with him William L. Kinsley, and Albert C. Gekoski, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 236 Pa. Super. Page 20]

This appeal raises the question of whether it is proper to assert marital immunity in a motion to strike a judgment.

On March 22, 1969, plaintiff-appellant, then unmarried, was a passenger in an automobile operated by Leonard Policino which was involved in an accident with an automobile driven by defendant Alan Ehrlich. Subsequently, on April 30, 1969, appellant married Leonard Policino. After the marriage, appellant filed an action

[ 236 Pa. Super. Page 21]

    in trespass against Alan Ehrlich, who joined Leonard Policino as additional defendant. Following trial, the jury returned a verdict in favor of appellant solely against the additional defendant, her husband. No post-verdict motions were filed and judgment on the verdict was entered on April 13, 1973. Counsel for Leonard Policino did not appeal the judgment, but on December 3, 1973, eight months later, filed a motion to strike the judgment as violative of the Pennsylvania statute on inter-spousal immunity.*fn1 The lower court granted the motion on November 26, 1974, and this appeal followed.*fn2

The inter-spousal immunity statute, supra, provides that ". . . 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; nor may she be arrested or imprisoned for her torts." (Emphasis added). Our Supreme Court has consistently held that "separate property" does not include an unliquidated tort claim, even if the tort occurred prior to the marriage of the parties. See DiGirolamo v. Apanavage, 454 Pa. 557, 312 A.2d 382 (1973); Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971); Daly v. Buterbaugh, 416 Pa. 523, 207 A.2d 412 (1964); Meisel v. Little, 407 Pa. 546, 180 A.2d 772 (1962). Thus, the present state of the law is that a spouse may neither sue nor recover on a tort claim from the other spouse while the parties are married, regardless of the date of the claim.*fn3

[ 236 Pa. Super. Page 22]

The doctrine has not gone without vigorous criticism: "The majority recognizes, as well it must, that social policies which may at one time have justified spousal immunity have ceased to exist, but claims to be bound by the pronouncements of the Legislature. Although the Legislature has addressed the question of spousal immunity, its enactments, as well as current public policy, compel abolition, not retention, of this antiquated doctrine." DiGirolamo v. Apanavage, supra, at 563, 312 A.2d at 385 (Roberts, J., dissenting). See also Kelso v. Mielcarek, 226 Pa. Superior Ct. 476, 479, 313 A.2d 324, 326 (1973): "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,*fn4 so as to uphold and extend, what remains an anachronistic, if not unconstitutional,*fn5 doctrine." (Hoffman, J., concurring). We are constrained, however, to apply the rule to the instant case.

Appellant recognizes that our Supreme Court has adhered to the rule that inter-spousal immunity precludes a

[ 236 Pa. Super. Page 23]

    wife from maintaining a trespass action against her husband during coverture. Appellant, however, makes two interrelated arguments. First, she contends that because appellee failed to plead his immunity, object at trial, file post-verdict motions, or appeal the judgment, the lower court erred in granting the motion to strike the judgment. Secondly, appellant claims that a motion to strike constitutes an impermissible collateral attack on the judgment.

A motion to strike a judgment is properly granted when a defect appears on the face of the record. Goldenberg v. Holiday Inns of America, Inc., 227 Pa. Superior Ct. 250, 323 A.2d 176 (1974). "As we said in Lipshutz v. Plawa, 393 Pa. 268, 271, 141 A.2d 226, 228 (1958): 'A rule to strike off a judgment is in the nature of a demurrer directed to defects in the record. If the record is self-sustaining, the judgment cannot be stricken.' Washington County Controller's Case, 427 Pa. 631, 634, 235 A.2d 592, 594 (1967). See, also, Cameron v. Great American & Pacific Tea Co., 439 Pa. 374, 266 A.2d 715 (1970); Linett v. Linett, 434 Pa. 441, 254 A.2d 7 (1969)." Malakoff v. Zambar, Inc., 446 Pa. 503, 506, 288 A.2d 819, 821 (1972). Thus, if the invalidity of a judgment can only be shown by evidence dehors the record, it cannot be stricken. Under the doctrine of marital immunity, a wife cannot recover from her husband. Therefore, the judgment rendered in the instant case is defective on its face and was properly stricken.

The difficulty with appellant's first argument is that a motion to strike is the proper remedy for a defendant whose wife is awarded a judgment against him.*fn6 While the doctrine of inter-spousal immunity precludes a wife from suing her husband, it does not prevent the original defendant from joining the husband as additional defendant.

[ 236 Pa. Super. Page 24]

The doctrine merely precludes the wife from recovering against her husband: ". . . Nancy Daly could recover only on her judgment against Buterbaugh and Buterbaugh could recover only by way of contribution against Daly but, in no event, could Nancy Daly recover on the judgment against Daly." Daly v. Buterbaugh, supra, at 530-531, 207 A.2d at 415. In Kiser v. Schlosser, 389 Pa. 131, 133-134, 132 A.2d 344, 346 (1957), the Court stated: "The court en banc recognized that although Mr. Schlosser was properly joined as a defendant for purposes of contribution in the action by his wife against Kiser, he could not be directly liable to his wife. The court concluded, nevertheless, that the error was not prejudicial to the Schlossers, and could be corrected by striking the verdict in favor of Mrs. Schlosser against her husband from the record. We agree with this disposition of the issue. Koontz v. Messer, 320 Pa. 487, 181 A. 792 (1935)." Thus, it is clear that if the husband had filed preliminary objections on the ground of inter-spousal immunity, they could not be sustained because he could properly be found liable to the original defendant. Furthermore, post-verdict motions (and appeal if they were unsuccessful) could accomplish no more than the motion to strike.*fn7 The choice

[ 236 Pa. Super. Page 25]

    of one permissible procedural course over another does not amount to a waiver of the issue.

Appellant also argues that the motion to strike was an impermissible collateral attack on the judgment. Generally, in the absence of fraud or collusion, an order of a court of competent jurisdiction is not subject to collateral attack. See Commonwealth v. City of Philadelphia, 5 Pa. Commonwealth Ct. 358, 290 A.2d 734 (1972). It is difficult, however, to characterize a motion to strike a judgment as anything but a direct attack: "In all the foregoing cases a direct attack was made on the judgment by motion to strike or open." Roberts v. Gibson, 214 Pa. Superior Ct. 220, 225, 251 A.2d 799 (1969). (Emphasis added). In support of her argument, appellant cites Dryer v. Yoest, 203 Pa. Superior Ct. 7, 198 A.2d 365 (1964). There, a minor-plaintiff sued defendant, who joined plaintiff's father as additional defendant. The jury awarded damages in favor of plaintiff solely against her father. Eighteen months later, additional defendant filed a rule to show cause why the judgment should not be marked satisfied on the ground of parental immunity. We stated: "The question of parental immunity in this case is clearly a collateral attack upon the judgment from which no appeal was taken. The refusal of the court below to direct the satisfaction of this judgment is not a final order; it is interlocutory; and therefore not appealable." 203 Pa. Superior Ct. at 11, 198 A.2d at 366. In Dryer, therefore, the additional defendant did not move to have the judgment reversed at any time; he merely asked that it be marked "satisfied." He sought to negate the effect of the judgment without seeking its removal. Hence, his attack was collateral. In the instant case, appellant directly attacked the judgment by asking that it be stricken.

The order of the lower court is affirmed.


Order affirmed.

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