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LILLIAN RUTH GOLDBERG v. ALBERT W. GOLDBERG (11/19/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: November 19, 1982.

LILLIAN RUTH GOLDBERG, APPELLANT,
v.
ALBERT W. GOLDBERG

No. 3187 Philadelphia, 1981, Appeal from Judgment of the Court of Common Pleas, Trial Division, of Philadelphia County, No. 4654 May Term, 1976.

COUNSEL

Stephen G. Brown, Philadelphia, for appellant.

Gilbert I. Yaros, Philadelphia, for appellee.

Wieand, McEwen and Popovich, JJ.

Author: Wieand

[ 306 Pa. Super. Page 505]

This is an appeal from a judgment entered on a non-jury verdict in favor of Albert W. Goldberg, appellee, in an action

[ 306 Pa. Super. Page 506]

    brought by his wife, Lillian Ruth Goldberg, the appellant herein, to recover counsel fees incurred in a prior action in equity. In the prior action, Mrs. Goldberg had been successful in setting aside a deed which purported to convey her interest in real estate owned by her and her husband as tenants by the entireties. Because it is clear that counsel fees cannot be recovered in the instant action, the judgment will be affirmed.

[ 306 Pa. Super. Page 507]

It is unnecessary that we decide whether a wife was entitled to recover counsel fees from her husband under the substantive law applicable at the time appellant brought her action in equity to protect and preserve her interest in real estate owned by the entireties.*fn1 Even if we assume -- we do not decide -- that appellant had a valid claim for counsel fees, it is clear that her claim cannot support the present action. Counsel fees cannot be sued for separately from the principal claim. Separate suits constitute an impermissible splitting of but one cause of action. Leomporra v. American Page 507} Baking Co., 198 Pa. Super. 545, 549-50, 178 A.2d 806, 807 (1962).

A separate action to recover damages for fraud, moreover, would be barred by the statute of limitations contained in the Act of March 27, 1713, 1 Sm.L. 76, § 1, 12 P.S. § 31, repealed by Act of April 28, 1978, P.L. 202, No. 53, § 2(a)[9], effective June 27, 1978 (current version at 42 Pa.C.S. § 5527). The act of fraud relied upon by appellant to support her claim for damages in the nature of counsel fees was admittedly known by appellant in May, 1968. The instant action for damages was not commenced until May 26, 1976, eight years later.

It is clear, therefore, that appellant cannot recover counsel fees in this action, and judgment was properly entered in favor of appellee.

The judgment is affirmed.


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