concurring and dissenting:
I agree with the majority that a discussion of constructive trusts is prompted by Appellant’s averment that he executed the deed in accordance with the parties’ separation agreement and in reliance upon Appellee’s oral promise to hold the land for the benefit of the parties’ children. Furthermore, I agree with the majority that once a court of *23equity assumes jurisdiction, it may fashion whatever relief is appropriate, including “equitable relief not covered by the original prayer.” Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 513, 351 A.2d 207, 213 (1976). Therefore, I conclude, as does the majority, (1) that the present case must be remanded to the chancellor for a hearing to determine whether a constructive trust exists and (2) that the possible existence of a constructive trust presents a genuine issue as to a material fact and thus requires the denial of summary judgment to Appellee.
However, having carefully studied the majority’s incisive opinion and being unable to anticipate the facts which may be adduced before the chancellor to prove or disprove the existence of a constructive trust, I respectfully make the following observations.
“ ‘ “[A] constructive trust arises where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.” ’” Truver v. Kennedy, 425 Pa. 294, 305, 229 A.2d 468, 474 (1967) (citations omitted); Denny v. Cavalieri, 297 Pa.Super.Ct. 129, 443 A.2d 333 (1982). Section 44(1) of the Restatement (Second) of Trusts (1959) enumerates three theories which support the existence of a constructive trust: “(a) the transfer was procured by fraud, duress, undue influence or mistake, (b) the transferee at the time of the transfer was in a confidential relation to the transferor, or (c) the transfer was made as security for an indebtedness of the transferor.” Moreland v. Metrovich, 249 Pa.Super.Ct. 88, 375 A.2d 772 (1977), allocatur denied.
Thus, on remand I would direct the chancellor to determine whether on the facts adduced at the remand hearing a constructive trust exists under either Section 44(l)(a) or Section 44(l)(b). In making this determination the chancellor cannot restrict his inquiry to whether a constructive trust results in this case from a confidential relation between the parties by presuming that the parties’ former *24marital status as husband and wife necessarily establishes a confidential relation.
The party asserting a confidential relation “must prove the relationship as a matter of fact.’’ Moreland, 249 Pa.Superior at 95, 375 A.2d at 775 (emphasis added). “[A] close family relationship [established by marriage or blood] ... does not per se justify recognition of a confidential relationship.” Id.1 Here, the record to date indicates that as an initial step in the dissolution of their marriage the parties entered into a separation agreement pursuant to which Appellant conveyed property to Appellee. Based upon the evidence presented at the remand hearing the chancellor shall then consider whether despite being on the verge of divorce at the time of the property conveyance, Appellant and Appellee were nevertheless operating in a confidential relationship with respect to each other or were, in fact, adversaries dealing with each other at arm’s length. See DePaul v. DePaul, 287 Pa.Super.Ct. 244, 429 A.2d 1192 (1981).
Since the chancellor’s scope of inquiry in this case is not limited by a presumption to a consideration of constructive trusts founded upon confidential relations, the chancellor shall also consider on remand whether the facts evidence a constructive trust based upon fraud or undue influence, i.e., whether Appellee “took unfair advantage of [Appellant] and fraudulently obtained his share of the property by means of ... misrepresentations [or undue influence].” Stauffer v. Stauffer, 465 Pa. 558, 573, 351 A.2d 236, 243-44 (1976)2; *25Subsection 44(l)(a) of the Restatement (Second) of Trusts (1959).3
Because there remains a clear factual dispute as to the existence of either a confidential relation between the parties or fraud or undue influence, summary judgment must be denied, and the case must be remanded for an evidentiary hearing before the chancellor in light of Subsections 44(l)(a) and 44(l)(b) of the Restatement (Second) of Trusts.
. Moreland v. Metrovich, 249 Pa.Super.Ct. 88, 375 A.2d 772 (1977), allocatur denied [sister conveyed property to her sister and brother-in-law]; Stauffer v. Stauffer, 465 Pa. 558, 351 A.2d 236 (1976) [husband conveyed property to his wife]; Silver v. Silver, 421 Pa. 533, 219 A.2d 659 (1966) [mother conveyed property to her sons].
. “It is clear that a fraudulent intention at the time of a transaction can be inferred from the totality of the circumstances surrounding the transaction, including subsequent conduct....” Stauffer v. Stauffer, 465 Pa. 558, 574, 351 A.2d 236, 244 (1976); Denny v. Cavalieri, 297 Pa.Super. 129, 443 A.2d 333 (1982). Moreover, “there is no requirement that the subsequent conduct that will justify an inference of *25fraudulent intent be immediate.” Stauffer, 249 Pa.Superior at 575 n. 6, 351 A.2d at 244 n. 6.
. Both subsection 44(l)(a) of the Restatement (Second) of Trusts (1959) and Section 166 of the Restatement of Restitution (1937) state that a constructive trust is appropriate where a transfer of property has been prompted by fraud, duress or undue influence.