dissenting:
¶ 1 Because I conclude that the trial court properly precluded Appellant from pursuing an adverse possession defense, I must respectfully dissent.
¶ 2 At the time of Appellant’s and Appel-lee’s divorce in 1974, the subject property formerly owned by them as tenants by the entireties was held as tenants in common of equal one-half shares by operation of law.6 Appellee filed her “Complaint in Equity-Partition” without an indication of whether it was filed pursuant to the Divorce Code, 23 Pa.C.S.A. § 3507, or pursuant to the Rules of Civil Procedure, Pa. R.C.P. 1551-1574. However, Appellant filed an “Answer” specifically referencing the Divorce Code, and, at the time of hearing before the trial court, the parties and the court were in agreement that the action would proceed under Section 3507 of the Divorce Code. See N.T., 2/15/00, at 2-3, 8-9, 13, 26. That section provides, in relevant part, as follows.
§ 3507. Division of entireties property between divorced persons
(a) General rule. — Whenever married persons holding property as tenants by entireties are divorced, they shall, except as otherwise provided by an order made under this chapter, thereafter hold the property as tenants in common of equal one-half shares in value, and either of them may bring an action against the other to have the property sold and the proceeds divided between them.
(b) Division of proceeds. — Except as provided in subsection (c), the proceeds of a sale under this section, after the payment of the expenses of sale, shall be equally divided between the parties.
(c) Liens. — The amount of any lien entered of record jointly against both of the parties, together with any interest due on the lien and docket costs, shall be deducted from the proceeds of sale and the amount of the liens entered of record against either of the parties, together with any interest due on the liens and docket cost, shall be deducted from the share of the party against whom the lien is filed and paid to the person or persons to whom the amount of the lien is due and payable.
23 Pa.C.S.A. § 3507.
¶ 3 In response to Appellee’s complaint, and notwithstanding the provisions of Pa. *530R.C.P. 1030, Appellant filed, pro se, a very brief six-paragraph answer to the complaint, which included an “affirmative defense” asserting that Appellee “refused to accept [a transfer of the property to her] stating she did not want to be responsible for the maintenance and expenses involved.” Answer, ¶ 2. Appellant also set forth a paragraph which asserts that Ap-pellee “abandoned” the property in November 1969 and “has not shown any interest since that time.” Answer, ¶ 3. No further pleadings appear on the docket.7
¶ 4 Despite a complete absence of any facts pled by Appellant from which a defense of adverse possession could reasonably be inferred,8 he appeared at the hearing scheduled on the partition request and sought to pursue such a claim. Because adverse possession is an affirmative defense required to be pleaded as new matter, the trial court could have considered this claim to be waived. Pa.R.C.P. 1030, 1032; Iorfida v. Mary Robert Realty Co., Inc., 372 Pa.Super. 170, 539 A.2d 383 (1988). Appellee has not, however, contended that Appellant waived such a defense, and the trial court permitted Appellant to make his argument on whether he could pursue an adverse possession defense in a partition action pursuant to the Divorce Code. Where, as here, the trial court has considered a party’s proffer of an affirmative defense not raised in new matter, such defense is not deemed waived but rather is viewed as having been advanced by an amendment to the pleadings. Flora v. Moses, 727 A.2d 596 (Pa.Super.1999). I would thus be constrained to turn to the merits of the propriety of the defense in this particular action, as did the Majority.
¶ 5 Our Supreme Court has recognized that the former Act of May 10, 1927, 68 P.S. § 501, see now 23 Pa.C.S.A. § 3507, “is in derogation of the common law and must be strictly construed.” Lykiardopoulos v. Lykiardopoulos, 453 Pa. 290, 309 A.2d 548, 551 (1973). This Court has concluded that in a partition action brought pursuant to the Act of May 10, 1927, equitable defenses and restitutory claims may not defeat the sale and division of. the proceeds sought by partition. Shoup v. Shoup, 469 Pa. 165, 364 A.2d 1319 (1976). More recently, in Hairston v. Hairston, 381 Pa.Super. 278, 553 A.2d 464 (1989), we held that the trial court must strictly follow the provisions of the Act of May 10, 1927, although we recognized that it would be logical to permit related claims in such a partition action. Nevertheless, we stated that because the action proceeded pursuant to the Act of May 10, 1927, “the parties can only raise those claims cognizable under the Act[.]” 553 A.2d at 468.
¶ 6 Because the present Section 3507 is substantially a reenactment of the Act of May 10, 1927, 68 P.S. § 501, it follows that Section 3507 must likewise be strictly construed. Thus, because the parties in this case proceeded solely pursuant to Section 3507, I believe they are limited to the claims cognizable under that section of the Divorce Code.
*531¶ 7 The Majority distinguishes Werner v. Werner, 393 Pa.Super. 125, 573 A.2d 1119 (1990), on which the trial court relied in rejecting Appellant’s claim of adverse possession. I agree that Werner is distinguishable from the case at bar. However, I am not persuaded to take the next step: that simply because Werner did not specifically preclude the defense of adverse possession in all partition actions, then this Appellant should be given the opportunity to assert that defense.
¶ 8 I wish to emphasize that the parties have proceeded pursuant to the Divorce Code, and not pursuant to the Rules of Civil Procedure, Pa.R.C.P. 1551-1574. Our Supreme Court, in Lohmiller v. Weidenbaugh, 503 Pa. 329, 469 A.2d 578 (1983), recognized that partition of property formerly held by the entireties may be achieved by the “complete remedy” afforded by the Act of May 10, 1927, or alternatively, the parties may choose to proceed pursuant to the remedy afforded by the Rules of Civil Procedure. 469 A.2d at 580. The Court further held that the Act and the Rules must be read in pari materia, so that effect may be given to both; however, such may be accomplished only to the extent that there is no conflict between the applicable provisions. This Court in Hair-ston, supra, subsequently recognized that a conflict does exist between the claims available under the two remedies.
¶9 Because we have previously interpreted the Act as limiting the parties to raise only those claims cognizable under the Act, I believe Appellant and Appellee are limited to raising claims specifically provided by Section 3507. Adverse possession is not one of them. Accordingly, I dissent.
. Act of May 10, 1927, 68 P.S. § 501, repealed, see now 23 Pa.C.S.A. § 3507. I also note that the parties divorced before enactment of the Divorce Code of 1980, which sought to, inter alia, "[e]ffectuate economic justice between parties who are divorced ... and insure a fair and just determination of their property rights.” 23 P.S. § 102 (repealed; see now, 23 Pa.C.S.A. § 3102.)
. Appellant filed a separate suit against Ap-pellee, seeking contribution for expenditures he incurred in maintaining the subject property. See Trial Court Opinion, 2/16/00, at 2. Thereafter, although the two cases were consolidated for trial, the trial court and the parties all agreed that the hearing on February 15, 2000 was specifically limited to the issue of whether partition was appropriate. N.T. 2/15/00, at 2-3, 15.
. “One who claims title by adverse possession must prove actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land for twenty-one years.’’ Myers v. Beam, 551 Pa. 670, 713 A.2d 61, 61 n. (Pa. 1998) (citation omitted).