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06/12/97 EMILY W. HASSICK v. JOHN R. HASSICK

June 12, 1997

EMILY W. HASSICK, APPELLEE
v.
JOHN R. HASSICK, APPELLANT



Appeal from the ORDER entered January 22, 1996, in the Court of Common Pleas of LEHIGH County, CIVIL, No. 81-C-2815. Before YOUNG, J.

Appeal from the Order of the Court of Common Pleas of Lehigh County, Civil Division at No. 81-C-2815. Before YOUNG, J.

Before: Del Sole, Popovich and Olszewski, JJ. Opinion BY Popovich, J. Olszewski, J. files a Concurring Opinion.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

Filed June 12, 1997

The defendant/appellant (John R. Hassick) appeals the order of the Court of Common Pleas of Lehigh County awarding the plaintiff/appellee (Emily W. Hassick) a share of his pension. We reverse.

The record discloses that the parties divorced in 1981. Economic issues were addressed by a Property Settlement Agreement drafted that same year. When the Agreement was written, however, neither party was aware that the appellant had a vested monthly pension in Local 8 of the Bricklayers Union--a benefit ($83.48) he will be eligible to receive at age 65. *fn1

On July 7, 1995, the appellee filed a Petition for Special Relief alleging that, when the 1981 Agreement was executed, the appellant "wrongfully, intentionally and maliciously" engaged in a course of conduct designed to "defeat [her] claims for equitable distribution of [his pension] property." To rectify the alleged "fraud", the appellee sought a preliminary injunction, an accounting and a hearing to assess her entitlement to share in the pension. Hearings were held on October 30 and November 27 of 1995, after which the court granted the appellee 50% of the pension. Until the asset reached pay status, the court imposed a constructive trust. This timely appeal followed and raises two issues for our consideration, the first of which reads:

DOES 23 PA.C.S.A. SECTION 3332[,] WHICH PROVIDES FOR A FIVE YEAR STATUTE OF LIMITATIONS UPON WHICH ACTIONS BASED ON FRAUD MAY BE FILED TO OPEN OR VACATE A DIVORCE DECREE[,] BAR APPELLEE'S PETITION FOR SPECIAL RELIEF . . . FILED FOURTEEN (14) YEARS AFTER ENTRY OF A DIVORCE DECREE?

There is no argument that 23 Pa.C.S.A. § 3332 provides a statute of limitations restricting the opening or vacating of a divorce decree: Where intrinsic fraud or new evidence attacking the validity of a decree is alleged, a motion to open must be filed within 30 days after the entry of the decree; and, where extrinsic fraud is asserted as a basis to vacate, action must be initiated within 5 years of the entry of the final decree.

In the appellee's Petition for Special Relief, it was averred that the appellant intentionally concealed the existence of his pension to defraud the appellee of her right to marital assets. *fn2 Regardless of which fraud is chosen to define the appellant's conduct, neither benefits the appellee since the time-lapse between the divorce decree and Petition for Special Relief spans 14 years. This is well beyond the statute of limitations set forth in Section 3332.

The appellee alleges the appellant "fraudulently" withheld pension information while the 1981 Agreement was being negotiated, allowing the divorce decree to be re-opened. The court found the appellant ignorant of the existence of the pension in 1981, which discounted the presence of fraud. Yet, the court read Creeks v. Creeks, 422 Pa. Super. 432, 619 A.2d 754 (1993), Major v. Major, 359 Pa. Super. 344, 518 A.2d 1267 (1986) and 23 Pa.C.S.A. § 3505 to avail the appellee the right to a constructive trust of 50% of the appellant's pension when it reached pay status. We disagree.

Section 3332 of the Divorce Code provides:

A motion to open a decree of divorce or annulment may be made only within the period limited by 42 Pa.C.S.A. ยง 5505 (relating to modification of orders) and not thereafter. The motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity. A motion to vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or a fatal defect apparent upon the face of the record must be made within five years after entry of the final decree. Intrinsic fraud relates to a matter ...


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