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JOHN R. HURLEY v. THELMA I. HURLEY (05/03/85)

filed: May 3, 1985.

JOHN R. HURLEY, APPELLEE,
v.
THELMA I. HURLEY, APPELLANT



Appeal from Order of the Court of Common Pleas, Civil Division, of Cumberland County, No. 1349 Civil 1980.

COUNSEL

Judith A. Calkin, Harrisburg, for appellant.

Leslie M. Fields, York, for appellee.

Wickersham, Wieand and Hester, JJ.

Author: Wieand

[ 342 Pa. Super. Page 158]

The issue in this appeal is whether a verdict for personal injuries sustained by a spouse prior to separation, where the verdict is recovered and satisfied by payment after separation, is marital property for purposes of effecting equitable distribution between the spouses. The trial court held the verdict to be marital property and included the proceeds in its decree of distribution. We reverse.

John Hurley (appellee) and Thelma Hurley (appellant) were married in 1955, separated in January, 1981, and divorced in 1983. At the time of hearings in the divorce action, the husband earned $310.53 per week as Chief of Police of the Borough of Wormleysburg; and the wife received a salary of $112.42 per week doing clerical work in the offices of Commercial Union Insurance Companies. Marital property was held by the trial court to include proceeds from the sale of a home, a vacation cottage, cemetery lots, husband's pension, which had a present value of $27,760, and wife's recovery of $28,131.80 for personal injuries sustained prior to separation. The court awarded the entire pension to husband and the entire personal injury recovery to wife. Husband was also awarded the vacation cottage, some of the cemetery lots and approximately one-third of the proceeds from the sale of the home. Wife was awarded some of the cemetery lots and approximately two-thirds of the proceeds from the sale of the home. On

[ 342 Pa. Super. Page 159]

    appeal, the wife argues that the recovery of damages for personal injuries was not marital property, that husband's vested pension should have been divided between them, and that the court otherwise erred in decreeing distribution.

In Platek v. Platek, 309 Pa. Super. 16, 21-23, 454 A.2d 1059, 1061-1062 (1982), this Court reviewed the legislative history of the Divorce Code of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq., and concluded that settlement proceeds recovered during marriage because of personal injuries sustained by one of the spouses were marital property and subject to equitable distribution. In the instant case, the cause of action arose and a civil action was commenced while the parties were living together, but the action was tried and a verdict recovered following separation but prior to divorce. The recovery was limited, by language inserted by the jury in the verdict slip, to damages sustained by the wife. No damages were awarded to the husband. The wife's damages consisted of pain, suffering and disfigurement.

Section 401(f) of the Divorce Code, 23 P.S. § 401(f) provides as follows:

(f) All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is ...


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