Hassick v. Hassick , 1997 Pa. Super. LEXIS 1405 ( 1997 )

OLSZEWSKI, Judge,

concurring:

Because the majority’s analysis so closely tracks my own thinking with respect to the issue presented, I agree without reservation in the ultimate disposition of this case. I write separately only to emphasis that, for two reasons, the constructive trust remedy provided in 23 Pa.C.S.A. § 3505(d) is wholly inapplicable to the established facts of the instant matter.

First, the trial court specifically found that, at the time of their divorce, the parties were mutually mistaken as to the existence of appellant’s pension fund. Therefore, because § 3505 as a whole is intended to prevent the fraudulent and wrongful pre-distribution removal of marital assets, I do not believe that the section is implicated in cases of omissions due to ignorance. See 23 Pa.C.SA § 3505(a)(a court may order full disclosure of marital assets when it appears that a party to an anticipated divorce has removed or is attempting to remove such assets from the court’s jurisdiction).

Next, even had the trial court held that appellant’s non-disclosure was fraudulent, the constructive trust remedy would be lost to appellee in this matter. For, in order for an aggrieved spouse to petition the court to declare a constructive trust, it must first be established that the parties filed formal inventories with the court as a consequence of the other spouse’s wrongful pre-distribution attempt to secret away marital assets. As the record establishes that § 3505 was not utilized by the parties prior to distribution of their marital assets, it cannot now be applied to their postdistribution disagreement.

Nonetheless, because the majority correctly holds that postdistribution allegations asserting mutual mistake of fact are not cognizable outside of the statutes of limitations provided in 23 Pa.C.SA. § 3332, and that appellee’s claim was brought outside of these periods, I agree that the Order of the trial court must be reversed.