No. 167 January Term, 1976, Appeal from the Order of the Superior Court at No. 506 October Term, 1975, Affirming Order of the Court of Common Pleas Civil Division, of Montgomery County, at No. 70-08771.
Irwin S. Lasky, Philadelphia, Israel Packel, Harrisburg, for appellant.
Charles J. Bogdanoff, Philadelphia, for appellee, Leonard Policino.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., took no part in the consideration or decision of this case. Roberts, J., files a concurring and dissenting opinion. Pomeroy, J., concurs in the result.
This appeal is from an order of the Court of Common Pleas of Montgomery County, which granted appellee's motion to strike a judgment. The Superior Court affirmed. Policino v. Ehrlich and Policino, 236 Pa. Super. 19, 345 A.2d 224 (1975). A petition for allowance of appeal was filed, and was granted by this court.
Appellant, Linda Policino, was involved in an automobile accident on March 22, 1969, while she was a passenger in a car operated by appellee, Leonard Policino. The Policino vehicle collided with an automobile operated by Alan Jeffrey Ehrlich. At the time of the accident, appellant, then Linda Hartman, was an unmarried minor. Appellant and appellee were married in April of 1969.
In July of 1970, appellant-wife filed suit against Ehrlich in the Court of Common Pleas of Montgomery County. Ehrlich, who has not been a party in any of the appeals, joined appellee-husband as an additional defendant, alleging that Mr. Policino was either solely or jointly liable to his wife. On March 13, 1973, a jury found that appellee-husband was solely liable to his wife for $10,000. Mr. Policino filed
neither a motion for a new trial nor for judgment n. o. v. On April 13, 1973, the verdict was reduced to judgment. No appeal was filed.
In September of 1973, appellant-wife instituted garnishment proceedings with the writ of execution, service, levy and attachment served in Erie County, home of appellee-husband's insurance company, Erie Insurance Exchange. The insurance company, as garnishee, petitioned the court to set aside the writ. In December of 1973, Mr. Policino instituted proceedings in Montgomery County to strike the judgment as not in accordance with the Pennsylvania inter-spousal immunity law.*fn1
In January of 1974, while the Montgomery County Court was considering Mr. Policino's motion to strike the judgment, the Court of Common Pleas of Erie County granted the insurance company's petition to set aside the writ, based on ...