Opinion

Powell v. Powell

  • 244 Pa. Super. 264
  • 367 A.2d 314
  • 1976 Pa. Super. LEXIS 2197
Court
Superior Court of Pennsylvania
Filed
Nov 22, 1976
Status
Published
Author
Hoffman
On the bench
Watkins, Jacobs, Hoffman, Cercone, Price, Van Voort Spaeth, Van Voort, Spaeth
Cited by
8 cases
Authority
More cited than 7.4%

noting that “delineating the scope of a general release is construction, not reformation”

How later courts described this case

  • noting that “delineating the scope of a general release is construction, not reformation”

Written by the judges who cited it.

The opinion

HOFFMAN, Judge,

concurring and dissenting:

I agree with the Majority that the lower court erred in granting appellee’s motion for judgment on the pleadings in her action for specific performance. I dissent from that part of the Majority opinion adopting the holding in Givernaud v. Givernaud, 81 N.J.Eq. 66, 85 A. 830 (N.J.Eq.1912).

*275 The lower court held that the statute of limitations provided in the Act of April 22, 1856, P.L. 532, § 6, 12 P.S. § 83, did not bar appellee’s action because the “statutes of limitation and laches ordinarily do not affect the wife’s rights against her husband since she cannot be expected to treat him as a stranger.” That certainly has been the law of Pennsylvania for many years. Morrish v. Morrish, 262 Pa. 192 , 105 A. 83 (1918); see also Shapiro v. Shapiro, 424 Pa. 120 , 224 A.2d 164 (1966).

The Majority adopts a new. rule that, in some instances, the statute of limitations may run against one of the married, but separated parties: “ . . . we hold that the statute of limitations ran against the instant plaintiff from the date of the final separation, a date not within the record. The pleadings indicate that as of 1960, the parties were separated, but are silent as to whether they ever resumed living together before they were divorced. . . .” 244 Pa.Super. at 275, 367 A.2d 318 .

I agree that in some cases the policy of preserving marital harmony fails as a rationale for sustaining the traditional rule excepting married people from the period of limitations as long as they are married. See, e. g., the factual history as cited by the Majority at 317 in Posnick v. Posnick, 160 A.2d 804 (D.C.Mun.App.1960). At the same time, the Majority’s rule is too uncertain to permit consistent application. A couple may go through a long and tortuous separation. With increased availability and assistance of professional counselors, a couple may finally separate only after numerous break-ups and reconciliations. Under the Majority’s rule, the commencement of the limitation period is elusive, capable only of retrospective analysis. Indeed, parties can discover the commencement of the period only after a finding by the lower court that the couple finally separated on a specific date. Such a rule can work obvious unfairness. Cf. 53 C.J.S. Limitations of Actions § 4. In addition, the Majority’s rule further erodes the possibility of reconcilia *276 tion. Faced with an uncertain date terminating a cause of action, a party is more likely to proceed hastily to court rather than to attempt amicable resolution of the dispute.

Thus, even if the rationale of domestic tranquility fails in some cases, I would reaffirm the traditional rule which permits certain and consistent application.

VAN der VOORT, J., joins in this concurring and dissenting opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.