concurring and dissenting.
I agree with the majority that the order of the Superior Court should be reversed because appellee failed timely to assert the defense of interspousal immunity and the Court of Common Pleas of Montgomery County therefore should not have considered this defense. The order of the Court of Common Pleas of Erie County is not before us and therefore we should not pass on its propriety.
Because the issue of interspousal immunity is not properly before us, there is no need to comment upon the continuing vitality of that doctrine, or of DiGiralomo v. Apanavage, 454 Pa. 557, 312 A.2d 382 (1973) (interspousal immunity).