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.
[ 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 ...