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ANNIE M. POWELL v. C. E. POWELL (11/22/76)

decided: November 22, 1976.

ANNIE M. POWELL, APPELLEE,
v.
C. E. POWELL, APPELLANT



Appeal from the Final Decree of the Court of Common Pleas of Blair County, Pennsylvania, Civil Division at No. 2055 Equity 1971. No. 131 April Term, 1976.

COUNSEL

Caram J. Abood, Abood, Rodkey & Eckel, Richard J. Russell, Johnstown, for appellant.

Harry A. Englehart, Jr., Ebensburg, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, J., concurs in the result. Hoffman, J., files a concurring and dissenting opinion in which Van der Voort, J., joins. Spaeth, J., files a concurring opinion. Price, J., dissents.

Author: Cercone

[ 244 Pa. Super. Page 267]

This is an appeal from a decree of the Court of Common Pleas of Blair County, Civil Division, granting wife-plaintiff's motion for judgment on the pleadings in

[ 244 Pa. Super. Page 268]

    an action for specific performance. Husband-appellant, Mr. C. E. Powell, was ordered to execute a deed conveying to his wife, Mrs. Annie Powell, appellee, a clear and marketable title to two lots in Volusia County, Florida.

The action arises from an agreement between the parties dated September 8, 1960. The parties were separated at the time of the execution of the agreement and divorced on a date not appearing in the record. The agreement provides for the division of certain properties they owned. The clause in the agreement dealing with Florida real estate specifically enumerates nine properties, six of which Mr. Powell was to receive and three of which were to go to Mrs. Powell, with Mrs. Powell also receiving "All other lots in the State of Florida now owned by the parties, except those above listed."

On December 4, 1971, Mrs. Powell filed a complaint in equity, averring the following: the lots in question had been owned by the parties at the time of the agreement; deeds had been exchanged in accordance with the agreement on November 30, 1960; she discovered in February of 1971 Mr. Powell had neglected to execute a deed for the two lots, and she immediately requested such a deed which Mr. Powell had refused to execute.

Defendant's answer admitted the execution of the contract, the ownership of the lots, and the exchange of deeds, but took issue with plaintiff's claim that she had not discovered the alleged omission until 1971. Under new matter he asserted, inter alia, that the action was barred by the doctrine of laches and that plaintiff had waived her rights under the agreement. The latter claim was particularized by his assertion in his motion for summary judgment that the action was barred by the Pennsylvania Act of April 22, 1856, 12 P.S. ยง 83, which provides in pertinent part:

"No . . . action [shall] be maintained for a specific performance of any contract for the sale of real estate . . . but within five years after such contract

[ 244 Pa. Super. Page 269]

    was made . . . unless . . . there has been, in part, a substantial performance . . . within the same period."

The court below held, relying on Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966), that the statute was inapplicable to the contract since it was between husband and wife. We disagree.

The Shapiro decision cited Morrish v. Morrish, 262 Pa. 192, 201, 105 A. 83, 86 (1918) for the rule that the statute of limitations will not ordinarily bar relief in a wife-husband situation. The latter case sets forth the rationale behind the rule as follows:

"The best considered decisions upon the subject in hand . . . are to the effect that, owing to the social importance of maintaining the family relation, in suits between a wife and her husband for the protection of the former's property, statutes of limitations, as also presumptions or estoppels by lapse of time do not ordinarily affect the rights of the wife, since she cannot be expected to treat her husband as a stranger; as certain courts have well said, any other policy would be apt to beget disagreements and contentions in the family fatal to domestic peace." [Citations omitted.]

The policy of preserving family harmony has little application to parties separated and contemplating divorce. Although no Pennsylvania case has answered the question of whether the statute of limitations runs between separated spouses, authorities indicate that of three jurisdictions which have applied the spousal exception rule and which have confronted the question in a factual context similar to that of the instant case, two (New Jersey and the District of Columbia) have answered ...


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