J. S71015/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

NORMAN G. LONG                          :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
JENNIFER V. LONG,                       :            No. 341 WDA 2015
                                        :
                        Appellant       :


                   Appeal from the Order, January 29, 2015,
               in the Court of Common Pleas of Bedford County
                   Civil Division at No. 813 for the year 2008


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED MARCH 09, 2016

     Jennifer V. Long (hereinafter “Wife”) appeals from the Bedford County

Court of Common Pleas’ January 29, 2015 order denying her petition for

enforcement and contempt. We affirm.

     The trial court provided the following facts:

           On July 11, 2008 the Plaintiff, Norman George Long
           [hereinafter, “Husband”], filed for divorce against his
           wife, Defendant, Jennifer Vesta Long.               On
           February 7, 2009 the parties signed an agreement
           prepared by [Husband’s] counsel. On August 28,
           2009 this Court entered a decree of divorce. The
           order provided, “the Settlement Agreement signed
           by the parties February 7, 2009, is hereby
           incorporated without merger.” On July 26, 2012
           [Wife] filed a petition to enforce agreement, and for
           contempt. The petition alleged the existence of an
           executed memorandum of understanding.               An
           unexecuted     copy     of   this   memorandum       of
           understanding was attached to the petition. The
           provisions contained in this unsigned memorandum
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          stated that, “. . . It is also agreed that should
          Norman Long place said property or desire to sell
          said property prior to the five years as mentioned
          above, he agrees to provide Jennifer Long with
          one-half (1/2) of the market value of said property
          the first year; 40% of the value the second year;
          30% the third year; 20% the fourth year; and 10%
          the fifth year.” The real estate in question situated
          in Mann Township of [Bedford County] was
          transferred to the Plaintiff in March of 2009.
          Throughout the divorce proceedings [Husband] was
          represented by counsel and [Wife] represented
          herself.

          In March of 2012 [Husband] sold the real estate for
          $300,000.00 to an unrelated party. [Wife’s] petition
          requested an amount in excess of $90,000.00 plus
          interest, counsel fees, and costs. At the scheduled
          conference on August 27, 2012, a hearing was
          scheduled for January 18, 2013, and the Court
          ordered the proceeds from the sale of the real estate
          be escrowed. On October 17, 2012 [Wife] filed a
          motion to enter judgment, enforce court order,
          contempt, and [] compel production. Argument was
          scheduled for December 3, 2012. At this hearing it
          was determined that the real estate proceeds were in
          an account out of state solely in control of
          [Husband]. The Court ordered again these funds be
          escrowed and specified it be in an account under the
          control of [Husband’s] counsel.      The Court also
          directed certain documents from the real estate
          closing. On January 7, 2013 the Court, at [Wife’s]
          request, scheduled a deposition of [Husband] for
          January 10, 2013. On January 14, 2013 [Wife] filed
          a motion for summary judgment, a petition for
          contempt, counsel fees, and costs.

          At the hearing, [Wife] offered a number of affidavits
          and [Husband’s] deposition. [Husband’s] counsel
          offered her computerized notes from her office. Two
          of the affidavits were from individuals whom [Wife]
          showed the real estate to in 2010 for the purpose of
          selling it to them.       Neither of these persons
          purchased the real estate.       There was also an


                                  -2-
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            affidavit from the closing attorney which indicated he
            had not received any information about an
            agreement regarding [Wife] receiving a portion of
            the proceeds. [Husband’s] deposition was taken on
            January 14, 2013. During the deposition [Husband]
            was asked if he had ever seen the memorandum of
            understanding which is the basis of Wife’s petition.
            [Husband], when asked if he had ever seen the
            memorandum of understanding, replied he had not.
            [Husband] also denied that the memorandum of
            understanding was ever presented to him as part of
            the separation agreement. [Husband] also denied
            that he ever saw or signed an alternate version of
            the memorandum of understanding that was shown
            to him. [Husband] did agree that he and [Wife] had
            discussed a number of times sharing the value of the
            Mann Township, Bedford County real estate.
            [Husband] was asked if he ever agreed to such a
            division. [Husband] responded, “. . . well, we talked
            about it and agreed to some of it, yes.” When asked
            about any percentages agreed to [Husband]
            responded, “about percentages? Well, from like I
            said December 20, 2007, if I sold it within one year
            of that she’d get 50% of the net proceeds, two years
            after that 40%, three years after that 30%, four
            years after that 20%, and five years - - - within five
            years 10%.

Trial court opinion, 4/15/13 at 1-3 (citations to transcript omitted).

            At the hearing on June 25, 2014, [Wife] testified that
            she was a Nurse Anesthetist and the parties
            separated in 2007. Between the separation date and
            2009 the parties met on a number of occasions at a
            Maryland resort to discuss their separation and
            divorce. At some point [Wife] stated [Husband]
            wanted her to sign a marital settlement agreement
            prepared by his attorney. At that point [Wife] says
            she began discussing with [Husband] that if the
            marital real estate was sold that for a period of time
            she would receive a portion of the market value.
            [Wife] had produced two unsigned versions of the
            agreement. [Wife], in her deposition, stated that the
            agreement described in Transcript exhibit #13 was


                                     -3-
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          signed by the parties, but [Husband] has
          consistently denied this and a signed copy has never
          been produced. [Wife] stated that she kept her copy
          of the signed agreement in her car and it was lost
          when her son wrecked the vehicle. In his deposition
          [Husband] concedes at some point prior to signing
          the marital settlement agreement prepared by his
          lawyer he had agreed to a percentage distribution if
          the house was sold within five years of the
          separation date.       [Wife] in her testimony also
          indicated this agreement was reached before she
          signed the marital settlement agreement.         When
          asked what relief she was requesting from the Court
          her response was “to honor the agreement that my
          husband and I had prior to signing the divorce
          agreement . . .” The marital settlement agreement
          signed by the parties is dated February 7, 2009, and
          is signed by both parties. Paragraph six of the
          agreement provides that the real estate will be
          distributed to [Husband] and he will be responsible
          for the mortgage.        There is no mention of any
          distribution to [Wife] if the house is sold. At the
          hearing on June 25, 2014 counsel for [Wife]
          readmitted the notes taken by [Husband’s] attorney
          and her staff during the divorce. The notes for
          March 18, 2009 indicate [Husband] delivered the
          “signed marital settlement agreement” to the
          attorney’s office.      The notes also provide that
          [Husband] is “to talk to [Wife] about when she can
          sign the deed.” [Wife] concedes she read the marital
          settlement agreement before she signed it. [Wife]
          also concedes that the agreement did not provide for
          any payment. “No they didn’t stop me, but when I
          read it, it clearly said that I would be signing off on
          the house.”       The office notes from [Husband’s]
          attorney indicated [Wife] appeared on March 25,
          2009 to sign the deed. The deed was dated and
          acknowledged on March 25, 2009. [Wife] stated she
          did not speak to [Husband’s] attorney that date, but
          rather met with a clerk in the attorney’s office. It
          appears [that this was the] same clerk who prepared
          the notes contained in [Husband’s] exhibit #1,
          12/3/12. [Wife] states that she asked this clerk
          whether signing the deed would affect the


                                   -4-
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            arrangement she had with [Husband] to receive a
            portion of the value of the property if it was sold.
            The notes written by the clerk state[], “[Wife] in this
            date to sign deed, consent and waiver, - told her I
            would mail her cc’s of the decree and marital
            settlement agreement when docs rec’d back from
            [Husband]. [Wife] asked if she signed deed will that
            null and void the agreement she just signed that
            says [Husband] gets the residence, but if he sells in
            the next five years he is to give her 30% of profit. I
            said signing the deed does not null and void the
            marital settlement agreement she signed.” On that
            same date [Husband] was contacted and was told
            about [Wife’s] statement about the 30%. The note
            provides, “he said that is an agreement they made
            verbally between each other.” [Wife] stated several
            times she only signed the deed because of the
            statement made by the clerk to her in [Husband’s]
            attorney’s office.

Trial court opinion, 1/29/15 at 2-4 (emphasis in original).

      Wife raises the following issues on appeal:

            1.    Did the Court below err in omitting to enforce
                  (or to find the Plaintiff-Husband in contempt
                  for breach of) the agreement, whether oral or
                  reduced to writing and signed, between the
                  Plaintiff-Husband and the Defendant-Wife,
                  pertaining to the Defendant-Wife’s percentage
                  share in the proceeds of sale of the marital
                  residence, notwithstanding the subsequent
                  marital settlement agreement, which did not
                  supersede the prior agreement, nor was the
                  prior agreement subsumed therein, and the
                  Defendant-Wife proved her claim by the
                  requisite standard?

            2.    Did the Court below err in omitting to grant
                  relief to the Defendant-Wife for the material
                  misrepresentation by the Plaintiff-Husband
                  and/or the agents and representatives of the
                  Plaintiff-Husband incident to the execution of
                  the marital settlement agreement, as to the


                                     -5-
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                       validity of the antecedent agreement, whether
                       oral or reduced to writing and signed,
                       pertaining to the Defendant-Wife’s percentage
                       share in the proceeds of sale of marital real
                       estate, whether inasmuch as the Defendant-
                       Wife proved by clear and convincing evidence
                       the elements of the misrepresentation, the
                       materiality of the misrepresentation, the
                       knowing      or   reckless   falsity   of  the
                       misrepresentation, justifiable reliance on the
                       misrepresentation, and the resulting injury
                       proximately caused by such reliance?

            3.         Did the Court below abuse its discretion in
                       omitting to award counsel fees to the
                       Defendant-Wife for the Plaintiff-Husband’s
                       conduct during the pendency of the matter was
                       obdurate and/or vexatious relating to the
                       Defendant-Wife’s percentage share from the
                       sale of the marital real estate pursuant to the
                       agreement, whether oral or written, between
                       the Plaintiff-Husband and the Defendant-Wife,
                       which antedated the marital settlement
                       agreement?

Wife’s brief at 5-6.

      Under      her    first   issue,   Wife   avers   that   the   memorandum      of

understanding is binding, despite language to the contrary found in the

marriage settlement agreement (hereinafter “MSA”).                   Specifically, Wife

claims that she is entitled to a percentage of the proceeds from the sale of

the marital real estate pursuant to an agreement with Husband that

enumerated the percentage of the proceeds Wife was due to receive based

on when Husband sold the marital real estate.

      When reviewing a MSA, we are held to the following standard:




                                           -6-
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                 The following legal principles are applicable in
           the review of a marriage settlement agreement. “A
           marital settlement agreement incorporated but not
           merged into the divorce decree survives the decree
           and is enforceable at law or equity. A settlement
           agreement between spouses is governed by the law
           of contracts unless the agreement provides
           otherwise.”    Stamerro v. Stamerro, 889 A.2d
           1251, 1258 (Pa.Super. 2005) (citations and
           quotations omitted).

                 In conducting our review of the court's holding
           as to the marital settlement agreement, we remain
           cognizant of the following:

                Because contract interpretation is a
                question of law, this Court is not bound
                by the trial court's interpretation. Our
                standard of review over questions of law
                is de novo and to the extent necessary,
                the scope of our review is plenary as the
                appellate court may review the entire
                record in making its decision. However,
                we are bound by the trial court's
                credibility determinations.

           Id. at 1257-1258 (citations and quotations omitted).

                When interpreting a marital settlement
                agreement, the trial court is the sole
                determiner of facts and absent an abuse
                of discretion, we will not usurp the trial
                court's fact-finding function. On appeal
                from an order interpreting a marital
                settlement agreement, we must decide
                whether the trial court committed an
                error of law or abused its discretion.

           Id. at 1257 (citations and quotations omitted).

Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa.Super. 2007).




                                   -7-
J. S71015/15


      A property settlement agreement between spouses is interpreted “in

accordance with the same rules applying to contract interpretation.”

Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa.Super. 2004).               The goal of

contract interpretation is, “to ascertain and give effect to the parties’ intent.”

Id.    Furthermore, where, “the words of a contract are clear and

unambiguous, the intent of the parties is to be ascertained from the express

language of the agreement itself.”          Id.   The parties’ intent, “must be

ascertained from the entire instrument,” and, “effect must be given to each

part of a contract.” Purdy v. Purdy, 715 A.2d 473, 475 (Pa.Super. 1998)

(citation omitted), appeal denied, 794 A.2d 363 (Pa. 1999).

      In   the   instant   case,   Wife   seeks   to   have   a   memorandum   of

understanding enforced. The memorandum of understanding predates the

MSA and provides the following relevant terms:

            Jennifer Long shall retain her interest in the Artemas
            Property; and that

            It is agreed that Jennifer Long shall transfer her
            interest in the Artemas Property to Norman Long at
            the end of 5 years from the date of this agreement.

            It is also agreed that should Norman Long place said
            property or desire to sell said property prior to the
            within these 5 years as mentioned above, he agrees
            to provide Jennifer Long with one half (1/2) of the
            market value of said property the first year; 40% of
            the value the second year; 30% the third year; 20%
            the fourth year and 10% the fifth year.

Memorandum of Understanding, Ex. 1, 1/23/13.




                                          -8-
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     This agreement predated the MSA, which Husband and Wife executed

on February 7, 2009. The MSA provides, in relevant part:

           5.     MUTUAL RELEASES

                        Husband and Wife each does hereby
                  mutually remise, release, quit claim and
                  forever discharge the other and the estate of
                  such other, for all purposes whatsoever, of and
                  from any and all rights, title, interests or
                  claims in or against the property of the other
                  or against the estate of such other which he or
                  she now has or at any time hereafter may
                  have, whether arising out of any former acts,
                  contracts or liabilities of such other or by way
                  of dower or courtesy, family exemption or
                  similar allowances, or under the intestate laws,
                  or the right to take against the spouse’s will.

           ....

                  c.    Real Property.

                              Husband          and       Wife
                        acknowledge that they are the joint
                        owners of real property known as
                        250 Clingerman Road, Artemas,
                        Pennsylvania         17211,       and
                        hereinafter referred to as the
                        “marital residence.” Wife agrees to
                        waive and convey to Husband any
                        and all right, title and interest she
                        may have in the marital residence
                        without further       claim against
                        Husband.      Husband agrees that
                        within six (6) months of the date of
                        signing this Agreement he will
                        either assume or refinance the
                        parties’ mortgage with Wells Fargo
                        Bank and thereby obtain release of
                        Wife as obligor thereon. Pending
                        refinance of the marital residence
                        as aforesaid, Husband shall have


                                     -9-
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                          exclusive     occupancy    of   the
                          residence and he shall pay any and
                          all    expenses   associated   with
                          ownership of the home, including
                          mortgage payments, taxes, fire
                          and casualty insurance, repairs,
                          upkeep and/or improvements and
                          utilities, without contribution by
                          Wife.

MSA, 2/7/09 at 2-3.

      By the plain language of the MSA, the intent of the parties is clearly

manifested--the parties intended to have the MSA supersede any previous

agreement or contract. The MSA also contained clauses in which the parties

stipulated that they,

              each had full and fair opportunity to obtain
              independent legal advice. . . . Husband and Wife
              further declare that he and she now execute this
              Agreement freely and voluntarily, having obtained
              such knowledge and disclosure of his or her legal
              rights and obligations, and that he and she
              acknowledge that this Agreement is fair and
              equitable and is not the result of any fraud, coercion,
              duress, undue influence or collusion.

Id. at 1-2.

      Indeed, Wife acknowledged that she read the MSA prior to signing it.

She further acknowledged that she understood the implications of signing

the MSA in relation to her interest in the marital real estate:

              THE WITNESS:          No, they didn’t stop me from
              reading, but when I read it, it clearly said that I
              would be signing off on all rights to the house. So, I
              said, if I sign this, does this mean that I don’t have
              any –



                                      - 10 -
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            THE COURT: So, you, in fact, read the agreement
            and read where it said that signing off on this you
            lose all your rights to the house.

            THE WITNESS: Right.

            THE COURT: You read that?

            THE WITNESS: Yes.

            THE COURT: And signed it anyway?

            THE WITNESS: Because they told me it wouldn’t
            nullify the side agreement that I had with Norm.

Notes of testimony, 6/25/14 at 26.

      Based on our careful review of the record, we find the record supports

the trial court’s finding that both parties signed the MSA with the intention

that Wife would relinquish any interest she had in the marital real estate.

Therefore, Wife’s first issue is without merit.

      In Wife’s second issue for our review, she avers that Husband’s

agents, specifically a member of Husband’s counsel’s staff, intentionally

misrepresented the consequences of signing the MSA.        Specifically, Wife

claims that Husband “perpetuated a fraud by the misrepresentations” to

Wife, and as a result, the MSA should be invalidated. (See Wife’s brief at

25-26.)

      We are bound by the trial court’s factual determinations, so long as

they are supported by the record and Husband did not perpetuate any fraud.

Here, after a careful review of the record, we find that the trial court’s

factual determinations are supported by the record.       Therefore, we will


                                     - 11 -
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affirm on the basis of the trial court’s opinion for Wife’s second issue. (See

trial court opinion, 1/29/15 at 5-7.)

      Finally, in her third issue on appeal, Wife avers that the trial court

abused its discretion by failing to award counsel fees. The trial court has the

power to award counsel fees, “if, at any time, a party has failed to comply

with an order of equitable distribution . . .”   23 Pa.C.S.A. § 3502(e)(7).

Since we have determined that Husband has not violated any terms of the

MSA, and because counsel fees are an appropriate sanction only to enforce

agreements between parties, we find that the trial court did not abuse its

discretion by failing to award Wife counsel fees. See Miller v. Miller, 983

A.2d 736, 743-744 (Pa.Super. 2009), appeal denied, 998 A.2d 961 (Pa.

2010).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/2016




                                        - 12 -
                                                                             Circulated 02/16/2016 03:04 PM




                                                  CAPfENDfX d.~l
   IN THE COURT OF COMMON PLEAS, BEDFORD COUNIY, PENNSYLVANIA



NORMAN GEORGE LONG                                       : No. 813 for the year 2008

                                       Plaintiff

                          vs.                            : Civil Action - Law

JENNIFER VESTA LONG

                                       Defendant         : In Divorce




                                              MEMORANDUM OPINION


AND NOW, January 29, 2015, after bearing,                             the Court enters the following

Memorandum Opinion:



On June 25, 2014, and October 29, 2014 hearings were held on the Defendant's

petition to enforce and petition for contempt. Much of the relevant history of the case

was recited in the Court's Memorandum                          Opinion of April 15, 2013 regarding the

Defendant's motion for summary judgment.                          The Court's order of that same date

denied the Defendant's motion for summary judgment.                          A copy of said Opinion is

attached hereto.                      Subsequent to the entry of the above Memorandum Opinion the

Defendant filed supplemental pleadings which raised additional claims. These claims

were as follows:




                    .I   ..   '   t
                                        "•    (
                                             Ij            1

        ....   ,•
      1.   The parties bad entered into an oral agreement concerning a sale of the real

           property;    The original pleading claimed 'only    a signed   agreement existed in

           addition to the marital settlement agreement filed with the divorce.



     2.    The Plaintiff or his agents facilitated an intentional misrepresentation    on the

           Defendant resulting in her transfer of her interest in the real estate.



     3. The Defendant is entitled to counsel fees as a result of the breach of the

           agreement.


                                  .        .
 At the hearing on June 25, 2014 the Defendant testified that she was a Nurse

 Anesthetist and the parties separated in 2007. Between the separation date and 2009

 the parties met on a number of occasions at a Maryland resort to discuss their

 separation and divorce.      At some point the Defendant stated the Plaintiff, Norman

George Long, wanted her to sign a marital settlement agreement prepared by his

attorney. At that point the Defendant, Jennifer Vesta Long, says she began discussing

with the Plaintiff that if the marital real estate was sold that for a period of time she

would receive a portion of the market value.            The Defendant had produced two

unsigned versions of the agreement.       (Transcript exhibit #12, 1/10/131 and Transcript

exhibit #13, 1/10/13). The Defendant, in her deposition, ·stated that the agreement

described in Transcript exhibit #13 was signed by the parties, but the Plaintiff,

Norman George Long, bas consistently denied this and a signed copy bas never been

produced. The Defendant stated that she kept her copy of the signed agreement in her

                                             34
                                               2
  car and it was lost when her son wrecked the vehicle. In his deposition the Plaintiff

  concedes at some point prior to signing the marital settlement agreement prepared by

  his lawyer he had agreed to a percentage distribution if the house was sold within five

  years of the separation date.    The Defendant in her testimony also indicated this

  agreement was reached before she signed the marital settlement agreement.           When

 asked what relief she was requesting from the Court her response was "to honor the

 agreement that my husband and I had prior to signing the divorce agreement ... " (T.

 6/25/14, page 13, lines 22-23). The marital settlement agreement signed by the

 parties is dated February 7, 2009, and is signed by both parties.    Paragraph six of the

 agreement provides that the real estate will be distributed to the Plaintiff and he will

 be responsible for the mortgage.     There is no mention of any distribution        to the

 Defendant if the house is sold. At the hearing on June 25, 2014 counsel for the

 Defendant readmitted the notes taken by the Plaintiff's attorney and her staff during

tlie divorce. The notes for March 18, 2009 indicate the Plaintiff delivered the "signed

marital   settlement agreement"     to the attorney's office.     (Plaintiffs   exhibit #1,

12/3/12). The notes also provide that the Plaintiff is "to talk to ap about when she can

sign the deed." (Plaintiffs exhibit #1, 12/3/12). The Defendant concedes she read the

marital settlement agreement before she signed it. The Defendant also concedes that

the agreement did not provide for any payment.      "No they didn't stop me, but when I

read it, it clearly said that I would be signing off on the house." The office notes from

the Plaintiffs attorney indicated the Defendant appeared on March 25, 2009 to sign

the deed. The deed was dated and acknowledged on March 25, 2009. The Defendant

stated she did not speak to the Plaintiffs attorney that date, but rather met with a

                                      [351
                                           3
  clerk in the attorneys office. It appears it was this same clerk who prepared the notes

  contained in the Plaintiffs exhibit #1, 12/3/12.       The Defendant states that she asked

  this clerk whether signing the deed would .affect the arrangement          she had with the

  Plaintiff to receive a portion of the value of the property if it was sold. The notes

  written by the clerk states, "ap in this date to sign deed, consent and waiver, - told

 her I would mail her cc's of the decree and marital settlement agreement when docs

 rec'd back from ct. Ap asked    if she signed deed will that null and void the agreement
 she just signed that says cl gets the residence, but ifhe sells in the next five years he is

 to give her 30% of profit. I said signing the deed does not null and void the marital

 settlement agreement she signed". (Plaintiffs exhibit #1, 12/3/12). On that same

 date the Plaintiff was contacted and was told about Defendant's statement about the

 30%. The note provides, "he said that is an agreement they made verbally between

 each other ." (Plaintiffs exhibit   1, 123i2).   The Defendant stated several times she only

signed the deed because of the statement made by the clerk to her in the Plaintiffs

attorney's office.



The record in the case supports that the marital settlement agreement was signed

prior to the deed and was not signed at the Plaintiffs attorney's office. The Defendant

bas established that an oral agreement was entered into by the parties prior to signing

the marital settlement agreement that she would receive a portion of the "profits from

the sale of the real estate if that . was within five years of the separation date."

However, the Defendant has not provided any credible evidence of the existence of a

written agreement. The Plaintiff denies it and the Defendant's explanation of how this

                                          [3LoJ
                                                  4
  valuable document was lost is difficult for the Court to accept. The very substance of

  the unsigned copies raises issues why the Plaintiff would be induced to sign them.

  Neither takes into account the mortgage payments he bad made solely since 2007.

  Further, when confronted about agreement in 2009, the Plaintiff conceded a verbal

  not a written agreement. Regarding the oral agreement, the records supports it was

 made to induce the Defendant to sign the marital settlement agreement which she

 read and was aware it did not include the language she requested.          Further, the

 agreement contained a mutual release provision which mutually released and

 discharged the other from any claims in or against the property of the other arising

 out of contracts. Thus by signing the marital settlement agreement she abrogated the

 oral agreement she bad made immediately prior to executing it. Of course there can

 be an oral modification of any agreement, but that oral modification must be proven

 by clear and convincing evidence. Pellegrene v. Luther, 169 A.2d 298 (Pa 1961). As

noted, no evidence was presented of any further pledge or agreement about claiming

the value of the real estate after the agreement was signed.



The Defendant has raised the issue of misrepresentation by the attorney's staff in

inducing the execution of the deed. The record is bare of any evidence that the clerk

was aware of the oral agreement made by the parties prior to execution of the marital

settlement agreement. There is also little evidence the clerk was aware of the terms of

the marital settlement agreement when the deed was executed by the Defendant. If it

was the clerk that called the Plaintiff after the deed was signed the notes indicate at

the time of the phone call the ca11er was aware of the terms of the marital settlement

                                       [3~]
                                           5
  agreement. However, the record is not clear who called the Plaintiff. In any event, the

  Defendant could not have been wrongfully induced to sign the deed because by the

  date she signed the deed in the attorney's office she had already obligated herself to

 sign the deed by the terms of the marital settlement agreement. Whether or not she

 had an agreement to receive part of value of the real estate, she had a contractual duty

 to transfer her interest to the Plaintiff.     The issue remains whether the Plainti.ff s

 statement to the Defendant         to induce her signature      of the marital       settlement

 agreement was a material misrepresentation       that would render the marital settlement
                        .
 agreement voidable. It can be argued persuasively the' Plaintiff misrepresented to the

 Defendant to contents of the agreement The elements of misrepresentation must be

 proven   by clear      and    convincing   evidence.    Those      elements   are:       1.) a

 misrepresentation;     2.) which is material to the transaction;     3.) made falsely, with

knowledge of its falsity or recklessness as to whether it is true or false; 4.) with the

inteiit of misleading       another in relying on it;     5.) justifiable reliance on the

misrepresentation; and 6.) resulting injury proximately caused by reliance. Bortz v.

Noon, 729 A2d 555 (Pa 1999).



The Defendant    testified she had a full and adequate opportunity to review the

agreement before signing it. Her testimony at the hearing would indicate she signed

the marital settlement agreement at the attorney's office but that is not consistent

with the other evidence.      The Defendant frequently in her testimony confused the

deed and the marital settlement agreement. The Court relies on the office notes as

being a more reliable indication of the sequence of events in 2009.       Having reviewed
the agreement herself, and being aware of its' contents, she would not have been

justified in relying on the Plaintiffs statements. forreco v, Porreco, 811 A2d 566 (Pa

2002).




Based on the above findings the Court finds no merit in the Defendant's petition and

denies her request for enforcement of agreement and counsel fees.



                                        By the Court:



                                                                                 P.J.




Counsel:

For the Plaintiff:
         Kristin M. Banasick, Esquire

For the Defendant:
         Thomas M. Dickey, Esquire
