J-A01019-14

2014 PA Super 161 

DEBORAH L. KOZEL IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

DAVID F. KOZEL 

 Appellant No. 461 WDA 2013 

Appeal from the Order Entered February 12, 2013 

In the Court of Common Pleas of Allegheny County 

Family Court at No(s): FD 98-00761-004 

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

OPINION BY LAZARUS, J. FILED JULY 29, 2014 

 David F. Kozel (Husband) appeals from the order of the Court of 

Common Pleas of Allegheny County denying his motion for summary 

judgment, which permitted Deborah L. Kozel (Wife) to go forward with her 

petition for special relief seeking imposition of a constructive trust. After 

careful review, we affirm. 

 The trial court summarized the underlying facts and procedural history 

of the case as follows: 

The parties were married on July 30, 1994, separated on 

September 9, 1998 and were divorced by final decree on April 4, 

2002. Master Gary Gilman held a nine-day hearing on the issues 

of equitable distribution, alimony, counsel fees and contempt in 

late 2004 and early 2005. Master Gilman issued Findings of Fact 

Regarding Equitable Distribution, Alimony, Counsel Fees and 

Contempt on May 2, 2005 (“Findings”). Wife’s exceptions and

Husband’s cross-exceptions were dismissed and Husband’s 

exceptions were granted in part. Wife then appealed and 

Husband cross-appealed to the Pennsylvania Superior Court. 
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The Superior Court affirmed the court’s ruling on November 15, 

2007. 

On November 16, 2012, Wife presented a Petition asserting 

section 3505(d) of the Divorce Code, 23 Pa.C.S. § 3505(d), 

which requires that if, “a party fails to disclose information 

required by general rule of the Supreme Court and in 

consequence thereof an asset or assets with a fair market value 

of $1,000 or more is omitted from the final distribution of 

property . . . [t]he Court shall grant the petition [for imposition 

of a constructive trust] upon a finding of a failure to disclose the 

assets as required by general rule of the Supreme Court.” Wife’s 

Petition claims that Husband failed to disclose his legal or 

equitable ownership in certain assets, and the Husband’s alleged 

non-disclosures necessitate the imposition of a constructive trust 

as to the following assets: 

a. Falcon Partners; 

b. Gulf Keystone Petroleum Ltd., GPK, LLC, Gulf 

 Keystone, and related entities; 

c. Other gas interests/wells and partnerships; and 

d. Other assets of which Wife has at this time no 

 knowledge, but as to which she will conduct discovery 

 in this matter. See Wife’s Petition paragraph 8.

Husband filed a Motion for Summary Judgment, dated December 

7, 2012, claiming that Wife’s action is barred by the statute of 

limitations of Section 3332 of the Divorce Code, 23 Pa.C.S. § 

3332, Opening or Vacating Decrees, which requires that any 

action claiming intrinsic fraud be filed within 30 days of the 

divorce decree and any action claiming extrinsic fraud be filed 

within 5 years of the final decree. 

Trial Court Opinion, 5/13/13, at 1-2. 1

____________________________________________ 

1 On December 21, 2012, Husband filed an answer and new matter to Wife’s 

petition for special relief raising substantially the same issues that he raised 

in his motion for summary judgment. 
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The trial court denied Husband’s motion for summary judgment by 

order dated February 12, 2013. Shortly thereafter, Husband filed a motion 

to amend the order to state that it involves a controlling question of law as 

to which there is a substantial ground for difference of opinion and that an 

immediate appeal may materially advance the ultimate termination of the 

matter. See 42 Pa.C.S. § 702(b)(1). The court issued an order to this 

effect on March 13, 2013. Husband filed a timely notice of appeal on March 

14, 2013, and by order dated April 25, 2013, this Court granted Husband’s 

petition for permission to appeal.2

 Husband raises the following issues for our review: 

1. Whether an action brought under the constructive trust 

provision of the Divorce Code, 23 Pa.C.S. § 3505(d), seven 

years after the final equitable distribution order, based solely 

on allegations of fraud, is barred by the statute of limitations 

provision of the Divorce Code, 23 Pa.C.S. § 3332, related to 

fraud claims. 

2. Whether the trial court erred in not granting Husband’s 

motion for summary judgment where there was no genuine 

issue of material fact that Husband’s interest in Falcon 

Partners was fully disclosed in discovery and included in the 

order of equitable distribution. 

3. Whether the trial court erred in not granting Husband’s 

motion for summary judgment where there was no genuine 

____________________________________________ 

2

 The order, docketed at 28 WDM 2013, provided: 

Upon consideration of the Petition for Permission to Appeal, the 

petition is hereby GRANTED. The matter shall proceed before 

this Court at docket number 461 WDA 2013 as an appeal from 

the order dated February 12, 2013. 
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issue of material fact that Gulf Keystone Petroleum, Ltd., or 

GPK, LLC, did not exist at the time of the marriage.

4. Whether the trial court erred in not granting Husband’s 

motion for summary judgment where there was no genuine 

issue of material fact that Husband’s interest in numerous gas 

well interests and partnerships was fully disclosed in 

discovery and included in the order of equitable distribution. 

5. Whether the trial court erred in not granting Husband’s 

motion for summary judgment where Wife failed to state a 

cause of action for imposition of a constructive trust on “other 

assets [of Husband] of which Wife has no knowledge[.]”

Brief of Appellant, at 6-7.

 Wife filed her petition for special relief based on section 3505 of the 

Divorce Code, which provides in relevant part: 

§ 3505. Disposition of property to defeat obligations

(d) Constructive trusts for undisclosed assets. – If a party fails 

to disclose information required by general rule of the Supreme 

Court and in consequence thereof an asset or assets with a fair 

market value of $1,000 or more is omitted from the final 

distribution of property, the party aggrieved by the

nondisclosure may at any time petition the court granting the 

award to declare the creation of a constructive trust as to all 

undisclosed assets for the benefit of the parties and their minor 

or dependent children, if any. The party in whose name the 

assets are held shall be declared the constructive trustee unless 

the court designates a different trustee, and the trust may 

include any terms and conditions the court may determine. The 

court shall grant the petition upon a finding of a failure to 

disclose the assets as required by general rule of the Supreme 

Court. 

23 Pa.C.S. § 3505(d). 

Wife asserts that her allegations of Husband’s failure to disclose his 

ownership of certain property brings her petition for constructive trust within 

section 3505, which provides for the filing of such petition “at any time.” 
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Husband disagrees, and argues that the relief Wife seeks is controlled by 

section 3322 of the Divorce Code, which provides: 

§ 3322. Opening or vacating decrees 

A motion to open a decree of divorce or annulment may be made 

only within the period limited by 42 Pa.C.S. § 5502 (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 the entry of the final decree. 

Intrinsic fraud relates to a matter adjudicated by the judgment, 

including perjury and false testimony, whereas extrinsic fraud 

relates to matters collateral to the judgment which have the 

consequence of precluding a fair hearing or presentation of one 

side of the case. 

23 Pa.C.S. § 3322. 

 Initially, we note that Wife does not seek to vacate the divorce decree, 

which is the relief provided under section 3322. Rather, she seeks a 

constructive trust, which is the relief provided under section 3505. Major v. 

Major, 518 A.2d 1267 (Pa. Super. 1986), supports the proposition that 

section 3505 is an alternative and distinct cause of action to section 3332. 

In Major, wife sought relief under the predecessor to section 3322,3

 seeking 

to reopen equitable distribution because husband had failed to mention his 

____________________________________________ 

3

 1980, April 2, P.L. 63, No. 26 § 602 (23 P.S. § 602).
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pension benefits “in previous court records.” 4

 Id. at 1269. This Court held 

that wife was not entitled to relief under the predecessor to section 3332 

“because: 1) she did not petition for reopening within 30 days; 2) she has 

not argued that fraud was perpetrated; [and] 3) she presents no new 

evidence relating to the cause of action.” Id. at 1272. Nevertheless, this 

Court held that the appropriate remedy was a constructive trust under the 

predecessor to section 3505.5

 We noted that “[t]his remedy cannot be 

waived by a failure to file exceptions; it becomes available ‘at any time’ a 

court of competent jurisdiction is presented with facts warranting its 

imposition.” Id. at 1274. 

 Importantly, the facts warranting imposition of a constructive trust “do 

not include a requirement that the failure to disclose an asset be a deliberate 

or intentional effort to avoid subjecting funds to the equitable distribution 

process.” Creeks v. Creeks, 619 A.2d 754, 757 (Pa. Super. 1993). The 

intent of the party who fails to disclose the assets is of no moment. Id.

 Husband relies on Hassick v. Hassick, 695 A.2d 851 (Pa. Super. 

1997), in support of his position that even if Wife’s allegations are true, she 

is not entitled to relief. We disagree because significant distinctions exist 

____________________________________________ 

4 Major involved a bifurcated divorce. The divorce decree was entered on 

December 2, 1982. The equitable distribution order was entered on March 

29, 1983, and wife sought to reopen equitable distribution on October 17, 

1983. 

5

 1980, April 2, P.L. 63, No. 26 § 403 (23 P.S. § 403). 
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between the instant matter and Hassick, where, fourteen years after the 

parties executed a property settlement agreement, wife filed a petition for 

special relief alleging that her husband fraudulently concealed a pension. 

After holding hearings, the trial court “discounted the presence of fraud,” id. 

at 853, but relied on Major, Creeks, and section 3505 to grant wife a fifty 

percent interest in the pension, and imposed a constructive trust until the 

pension reached pay status. On appeal, this Court reversed, in part because 

Majors and Creeks did not involve allegations of fraud, and in part because 

an excessive period of time had passed between the final decree and the 

petition for relief. The Court further noted that relief was only available 

under section 3505(d) if a party had failed to disclose information regarding 

the identity and value of property owned in an “inventory and appraisment,” 

as was then required by section 3505(b). Because neither party in Hassick

filed an “inventory and appraisment,” no relief could be granted in the form 

of a constructive trust.6

 In summary, Hassick is not a section 3505(d) 

case, and accordingly, it cannot serve as a basis for denying Wife the 

opportunity to seek relief under section 3505(d). 

 Husband further argues that sections 3505 and 3323 should be read in 

pari materia, pursuant to section 1932 of the Statutory Construction Act, 1 

____________________________________________ 

6

 The inventory and appraisment formerly required under 23 Pa.C.S. § 

3505(b) has been suspended and is now governed by Pa.R.C.P. 1920.33, 

which provides for filing of an inventory of all assets and a pre-trial 

statement containing a valuation of those assets. 
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Pa.C.S. § 1932. However, our Supreme Court has noted that like “all other 

rules of statutory construction, the necessity of applying the rule as to the 

construction of statutes in pari materia exists only where the terms of the 

statute to be construed are ambiguous.” Oliver v. City of Pittsburgh, 11 

A.3d 960, 965 (Pa. 2010) (citing AM.JUR.2D Statutes § 103). “When the 

words of a statute are clear and free from all ambiguity, the letter of it is not 

to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 

1921(c). Here, the language of section 3505 is unambiguous. When a party 

fails to disclose information required by a general rule of the Supreme Court, 

such as the Rules of Civil Procedure governing identification and valuation of 

assets, and as a result of the nondisclosure an asset with a fair market value 

of $1000 or more is omitted from the final distribution, the aggrieved party 

may, “at any time petition the court granting the award to declare the

creation of a constructive trust as to all undisclosed assets.” 23 Pa.C.S. § 

3505(d) (emphasis added). Accordingly, the plain language of section 

3505(d) compels us to reject Husband’s position that it must be read in pari 

materia with section 3332. Oliver, supra. 

 Having concluded that Wife properly sought relief under section 

3505(d), we consider Husband’s claim that the trial court erred in denying 

his motion for summary judgment. 

 Our standard of review of an order granting or denying a motion for 

summary judgment is well-settled: 
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We view the record in the light most favorable to the nonmoving 

party, and all doubts as to the existence of a genuine issue of 

material fact must be resolved against the moving party. Only 

where there is no genuine issue as to any material fact and it is 

clear that the moving party is entitled to a judgment as a matter 

of law will summary judgment be entered. Our scope of review 

of a trial court’s order granting or denying summary judgment is 

plenary, and our standard of review is clear: the trial court’s 

order will be reversed only where it is established that the court 

committed an error of law or abused its discretion. 

Daley v. A.W. Chesterton, Inc., 37 A.3d 1175, 1179 (Pa. 2012) (citation 

omitted). 

 Pa.R.C.P. 1035.2 governing motions for summary judgment provides: 

After the relevant pleadings are closed, but within such time as 

not to unreasonably delay trial, any party may move for 

summary judgment in whole or in part as a matter of law 

(1) whenever there is no genuine issue of any material 

fact as to a necessary element of the cause of action 

or defense which could be established by additional 

discovery or expert report; or 

(2) if after the completion of discovery relevant to the 

motion, including the production of expert reports, 

an adverse party who will bear the burden of proof 

at trial has failed to produce evidence of facts 

essential to the cause of action or defense which in a 

jury trial would require the issues to be submitted to 

a jury. 

Pa.R.C.P. 1035.2. 

 Here, the trial court determined there are genuine issues of material 

fact that require discovery, and therefore it denied Husband’s motion for 

summary judgment. 
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 With respect to the existence of disputed material facts regarding 

Husband’s disclosure of his interest in Falcon Partners, we rely on the trial 

court, which noted: 

The Master found that Husband transferred his interest in 1998 

to his brothers for no consideration. See Master’s Report and 

Recommendations, p. 10, footnote 3. The Master found that 

Husband and [his brother] Todd Kozel took part in “divorce 

planning,” and attributed to this asset Forty-Six Thousand Eight 

Hundred Eight Dollars ($46,808) based on the assertion by 

Husband that he did not have current or ongoing interest in the 

asset. See [Id.], paragraphs 79-85, pp. 23-24. Wife claims 

that shortly after the entry of the final Trial Court order of 

September 27, 2005 disposing of the Exceptions and CrossExceptions . . . Todd Kozel reconveyed Husband’s same interest 

in Falcon to an entity called Pioneer I Associates Trust, a trust of 

which Husband is the beneficiary. See Wife’s Petition, 

paragraph 17. Wife asserts that the “divorce planning” included 

a Phase II by which Todd would hold the asset for Husband’s 

benefit until Husband’s divorce litigation was concluded. This 

would provide Husband all of the rights and benefits of actual 

ownership in the interim, and Todd would then convey Falcon to 

Husband as soon as his divorce was concluded. See Wife’s 

Petition. This Court acted within its discretion in determining 

that an issue of genuine material fact exists with regard to both 

Falcon Partners’ value and any divorce planning. These are 

issues for discovery in accordance with the standard for 

summary judgment set forth in Pa.R.C.P. 1032.2. 

Trial Court Opinion, 5/13/13, at 9-10.

 In her petition, Wife avers that prior to separation on September 9, 

1998, and afterward, Husband had a legal and/or equitable ownership 

interest in Gulf Keystone and related entities that he failed to disclose. See

Wife’s Petition, ¶ 23. In support of this claim, she attaches to her petition a 

signed declaration by Husband’s brother, Robert Kozel, in which he states 

that Gulf Keystone was established in approximately 1997. However, 
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Husband asserts that he could not have had such an interest because Gulf 

Keystone did not exist until January 2000. See Motion for Summary 

Judgment, at paragraph 44. Even assuming this to be true, Husband 

obtained his interest five years prior to the parties’ equitable distribution 

trial, and therefore had an affirmative duty to disclose this interest. See

Pa.R.C.P. 1920.33. Accordingly, the trial court did not err or abuse its 

discretion in finding there were genuine issues of material fact that need to 

be determined through additional discovery. 

 Wife also sought relief on the basis that Husband may have owned 

more gas wells and related interests than he disclosed in his inventory, 

marital asset summary and pretrial statement. See Wife’s Petition, ¶¶ 36-

40. She based her claim on averments in a lawsuit for specific performance 

filed against Husband’s brother Todd and his wife. In the complaint, the 

unrelated plaintiffs aver that on April 1, 2004, Husband and his brothers 

agreed to sell approximately 592 natural gas wells. Id. Based on this 

information, Wife has established a genuine issue of material fact as to when 

Husband acquired his interest in these assets. Furthermore, even if the sale 

of these assets was completed on April 1, 2004, it occurred before the 

equitable distribution hearing and thus should have been disclosed pursuant 

to Pa.R.C.P. 1920.33, a “general rule of the Supreme Court” under Section 

3505(d). Accordingly, the trial court did not err or abuse its discretion in 

denying summary judgment based on Husband’s assertion that he disclosed 

all his interests in natural gas wells. 
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Husband’s final claim is that the trial court abused its discretion by not 

granting his motion for summary judgment where Wife failed to state a 

cause of action for a constructive trust on assets not otherwise specified. If 

Wife had simply sought a constructive trust on unspecified assets, we might 

have been persuaded by Husband’s contention that Wife was on a “fishing 

expedition.” Appellant’s Brief, at 33. However, in light of the specificity of 

Wife’s other allegations regarding failure to disclose assets, and the Master’s 

finding that Husband engaged in divorce planning, the trial court did not err 

as a matter of law or abuse its discretion in denying summary judgment, 

thus allowing the parties to engage in discovery. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/29/2014