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
SPAETH, Judge,
concurring:
I offer this opinion because two points seem to me to require discussion.
1
I agree with the general conclusion expressed by Judge Cercone in his opinion for the majority, that when the “marital unity” has ended, there is no reason why the Act of April 22, 1856, should not apply. This conclusion, however, does not completely answer the argument that eyen so, given the particular agreement here, the Act dpes not apply.
In pertinent part, the Act provides:
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 was made . . .
Thus, the issue is presented whether the agreement here is a “contract for the sale of real estate.” As Judge Cercone’s opinion for the majority states, the agreement “. . . provides for the division of certain properties [the parties] owned.” At 316 (emphasis added). The agreement does not provide for the “sale” of real estate. Since words in a statute are to be construed according to their common and approved usage, 1 Pa.C.S.A. § 1903, it is, therefore, at least arguable that the Act is inapplicable. I think we should respond to this argument. My response is as follows.
*277 In construing a statute, one does not consider only-common and approved usage; one also attempts to effectuate the legislature’s intent. 1 Pa.C.S.A. § 1921. Here, the Act is not a statute of limitation but a statute of repose. Ross v. Suburban Counties Realty Corp., 356 Pa. 126 , 51 A.2d 700 (1947). “Such statutes are in the nature of conditions put by the law upon the right given. . They bar not only the remedy but the right.” Overmiller v. D. E. Horn & Co., Inc., 191 Pa.Super. 562, 570-71 , 159 A.2d 245, 248-9 (1960). This characteristic reveals that the legislature’s intent was that encumbrances upon titles to real property should be resolved as expeditiously and as finally as possible. Thus the Supreme Court said in Ross, supra at 129 , 51 A.2d at 701 , that “ [t] his Act was a statute of repose and was intended to assure greater certainty of title and make secure the enjoyment of real estate.” If this intent is to be effectuated, the phrase “any contract for the sale of real estate” should be construed broadly so as to include “any contract for transfer of real estate.”
This conclusion is supported by other considerations. When the parties to a marriage have separated and are contemplating divorce, the amicable resolution of their disputes is to be encouraged. Schmoker v. Schmoker et al., 359 Pa. 272, 275 , 59 A.2d 55, 57 (1948). It follows that an agreement providing for the disposition of the parties’ property should be given the greatest possible legal effect, which is simply another way of saying that the ability of either party to challenge the agreement should be limited. This purpose will be achieved only if the Act is construed broadly so as to include a contract not only for the “sale” but also for the “transfer” of real estate.
2
The Act provides that the limitation period starts to run from the time “such contract was made.” In the case of a separation agreement, the contract will be made prior to “final separation” and therefore during the peri *278 od of “marital unity”. It follows that the limitation period will not start to run from the date the contract was made. The question therefore becomes, When does the limitation period start to run ?
In answering this question, I am with the majority. I recognize the force of Judge Hoffman’s criticism, that the date of “final separation” may be difficult to determine. On the other hand, on remand it may prove that it is not at all difficult; there may be no question about when the parties so finally separated that all would agree that their marital unity had ended.
In addition, there is another date that should be mentioned. It is the date the parties were divorced. There can be no difficulty in determining that date. Neither can there be any question that as of that date, the marital unity had ended. At least, therefore, the limitation period started to run then.
Accordingly, I join in the majority’s remand, but I would add the instruction that the lower court should decide whether the action was barred because it was not brought within five years of the date of divorce.