J-A16034-14



                                  2014 PA Super 285



K.A.R. FORMERLY K.A.L.                            IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

T.G.L.

                            Appellee                  No. 1561 WDA 2013


                   Appeal from the Order September 6, 2013
              In the Court of Common Pleas of Allegheny County
                    Family Court at No(s): FD 00-7928-016


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

OPINION BY OTT, J.:                               FILED DECEMBER 23, 2014

       K.A.R., formerly K.A.L. (hereinafter “Wife”), brings this appeal1 from

the order entered September 6, 2013, in the Court of Common Pleas of

Allegheny County, dismissing in part her Exceptions to the Report and

Recommendation of the Master, and granting the Exceptions filed by T.G.L.

(hereinafter “Husband”), in this action brought by Wife to enforce the

parties’ equitable distribution agreement. Wife claims the trial court erred in

ruling (1) that Husband’s statute of limitations defense barred Wife’s action

to enforce the parties’ equitable distribution agreement, and (2) that

____________________________________________


1
  Because a consent order to seal the record was entered by the trial judge,
the parties’ names have been replaced with initials, and other identifying
proper names have been replaced with generic labels.
J-A16034-14




Husband’s laches defense barred Wife’s action to enforce the parties’

equitable distribution agreement. Based upon the following, we affirm.

      The trial court has aptly stated the factual and procedural history,

which we restate, in part:

      Husband and Wife married on June 17, 1988. Two children were
      born of the marriage [who] are both emancipated. Wife filed a
      Complaint in Divorce on January 29, 2000, and a decree in
      divorce was entered August 5, 2003. The parties participated in
      an Equitable Distribution hearing before Master Gary Gilman on
      August 21 and August 22, 2003. On the second day of the
      hearing counsel for the parties read an Equitable Distribution
      Agreement into the record. One marital asset the parties
      discussed in the Agreement was Husband’s interest in his startup
      venture, [Business-1] (hereinafter referred to as “[Business-1]”).
      Counsel for Husband stated,

         With regard to [Business-1] stock, Husband would
         agree – or the parties I believe agree that in this
         contemplated agreement that of the first net after
         taxes of a million dollars [H]usband received from
         the sale of [Business-1] stock, if and when it would
         be sold, and/or of the sale of any warrants which
         Husband has in [Business-1] stock or any other
         benefits he derives from the disposition of his
         interest in [Business-1] as it stands right now, as to
         the first million dollars of that net, after taxes, Wife
         would receive 50 percent – I’m sorry – Wife would
         receive 45 percent, Husband would receive 45
         percent and 10 percent would be invested in a
         vehicle for the Children … And with regard to any
         amount over that first million net, again, defining
         the proceeds broadly to include remuneration of
         any kind other than his salary or wages which he
         would receive from the disposition of what
         currently exists as of today, it would be split 75
         percent to Husband, 15 percent to Wife, 10 percent
         to the Children. (8/22/2003 H.T., at 72–3).


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     Wife served Husband a Petition to Enforce the Equitable
     Distribution Agreement and for Sanctions on March 21, 2011
     (hereinafter referred to as the “Petition to Enforce”). The Petition
     to Enforce asserted, inter alia, that Husband sold a portion of his
     [Business-1] stock in January 2004[, that the total sale was
     completed] for approximately $22 million[, and that Wife
     believes Husband received initial proceeds in excess of $2.5
     million.] Wife also stated that Husband retained the advertising
     component of [Business-1] as part of the initial transaction,
     which was renamed [Business-2]. She claimed that [Business 2]
     subsequently became [Business-2A], and Husband then sold his
     interest in [Business-2A]. Wife alleged that Husband retained all
     the funds from the transaction. Wife averred that Husband made
     a payment to her of $300,000 on April 9, 2004 and a second
     payment of $150,000 to her on September 15, 2005. Wife
     further alleged that Husband failed to include any interest
     component for the delayed payments. [Wife averred that based
     upon the limited information provided by Husband, she believed
     she was owed over $300,000 for her share of the sale proceeds
     from Business-1 and Business-2/Business-2A.] Wife asked the
     Court, inter alia, to schedule a hearing to address Wife’s claim
     for enforcement of the Equitable Distribution Agreement.

     On March 30, 2011 Husband served Wife an Answer to the
     Petition to Enforce, New Matter and Counter Petition. Husband
     stated that Wife’s interests in [Business-1] were limited to
     Husband’s ownership rights as they existed on August 22, 2003,1
     and Wife was not entitled to any future consideration given to
     Husband for the future commitments he made as part of the
     [Business-1] transaction. Husband stated that Wife’s interests
     were limited to the after-tax proceeds that he would have
     received if his stock were treated the same as all common
     shares because he only held common stock in [Business-1] on
     August 22, 2003. Husband further stated that he retained no
     ownership interest in [Business-1] after the January 2004 sale
     and that [Business-2A] was completely distinct from [Business-
     1]. Husband averred that he overpaid Wife $152,887.28 for her
     share of what he received for the [Business-1] stock and asked
     that Wife repay this amount to him along with interest.2
     _______________________________________________________________________



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        1
          This is the date that the Equitable          Distribution
        Agreement was read into the record.
        2
          Husband stated that he would have received a pre-tax
        payment of $846,475 as a result of the [Business-1]
        transaction if his shares were treated as common shares.
        Under Husband’s calculations this would have yielded
        after-tax proceeds of $660,000, which would entitle Wife
        to $297,112.73. Husband stated that he had paid Wife
        $450,000 with respect to [Business-1], which is an
        overpayment in the amount of $152,887.28
     ______________________________________________

                                   ****

     The four (4) day hearing to address Wife’s Petition to Enforce
     took place before Master [Patricia] Miller [on March 20, 2012,
     May 29, 2012, May 31, 2012, and August 30, 2012]. Master
     Miller entered her Report and Recommendation on September
     28, 2012. In this Report the Master determined that no
     agreement was formed between the parties on August 22, 2003.
     The Master found that Wife’s decision to discharge her attorney
     after the parties’ counsel discussed the disposition of the
     [Business-1] stock on the record, to sue him for malpractice, and
     to state in verified pleadings that there was no valid agreement
     was sufficient evidence that an agreement never existed. The
     Master also concluded that it was not clear if even Husband
     believed there was an agreement that he was to pay Wife 45%
     of the first $1,000,000 he received for the sale of his [Business-
     1] stock. The Master stated that either party could praecipe for
     an equitable distribution hearing to determine the marital
     property component of the [Business-1] stock and the
     percentage distribution to each party.

     Husband and Wife filed Exceptions to the Report               and
     Recommendation of Master Miller on October 18, 2012. …

                                   ****

     After the parties argued Exceptions on August 29, 2013, the
     Court entered its September 6, 2013 Order that granted in part

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J-A16034-14




     Wife’s Exceptions to the Report and Recommendation of Master
     Miller. The Court found that the Master ruled on an issue that
     was not before her [namely, the validity of the agreement], that
     the Master failed to rule on the issues referred to her by the
     August 19, 2011 Order of Court [namely, Husband’s affirmative
     defenses of statute of limitations and/or laches], that a valid
     equitable distribution agreement exists between Husband and
     Wife, and that an equitable distribution hearing was not to be
     scheduled. The Order dismissed Wife’s remaining Exceptions.
     The Order also granted Husband’s Exceptions to the Report and
     Recommendation of Master Miller [that asserted Wife’s claims
     were time barred by the statute of limitations and the doctrine of
     laches]. The Court found that Husband’s defenses of statute of
     limitations and laches bar enforcement of the Equitable
     Distribution Agreement. The Order also resolved all remaining
     economic issues between Husband and Wife.

     Wife filed her Notice of Appeal to the September 6, 2013 Order
     of Court on September 30, 2013, and she thereafter filed her
     Concise Statement of Matters Complained of on Appeal on
     October 1, 2013.

Trial Court Opinion, 12/2/2013, at 1–6 (emphasis supplied).

     Preliminarily, we note that “[a] question regarding the application of

the statute of limitations is a question of law.” Commonwealth v. Riding,

68 A.3d 990, 993 (Pa. Super. 2013). Furthermore, “the question of whether

laches applies is a question of law.”   United National Insurance Co. v.

J.H. France Refractories Co., 668 A.2d 120, 124 n.4 (Pa. 1995).           “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.”   Stamerro v. Stamerro,

889 A.2d 1251, 1257 (Pa. Super. 2005) (quotations and citation omitted).


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J-A16034-14




However, we are bound by the trial court’s credibility determinations. Id. at

1257–1258.

      Wife first contends that the trial court erred in ruling the statute of

limitations barred the present action to enforce the parties’ agreement. Wife

argues that the parties’ agreement is a “continuing contract.”

      The statute of limitations for contracts is four years.     42 Pa.C.S. §

5525(a)(8). “[T]he statute of limitations begins to run as soon as the right

to institute and maintain a suit arises.” Fine v. Checcio, 870 A.2d 850, 857

(Pa. 2005) (citation omitted).   However, “[w]hen a contract is continuing,

the statute of limitations will run either from the time the breach occurs or

when the contract is terminated.” Crispo v. Crispo, 909 A.2d 308, 313 (Pa.

Super. 2006) (citing S.T. Hudson Eng'rs, Inc. v. Camden Hotel Dev.

Assocs., 747 A.2d 931, 934 (Pa. Super. 2000)). “The test of continuity, so

as to take the case out of the operation of the statute of limitations, is to be

determined by the answer to the question whether the services were

performed under one continuous contract, whether express or implied, with

no definite time fixed for payment, or were rendered under several separate

contracts.” Thorpe v. Schoenbrun, 195 A.2d 870, 872 (Pa. Super. 1963).

      Wife argues that the parties’ equitable distribution agreement is a

continuing contract because, as part of the January, 2004 Business-1 sale,

Husband acquired an interest in Business-2A, which was part of 2006 and


                                     -6-
J-A16034-14




2009 transactions that netted Husband additional proceeds to which Wife is

entitled to under the parties’ agreement.       See Wife’s Brief at 23.   Wife

points to the language in the parties’ agreement stating, “Wife was to

receive 45% of the initial million dollars, net after taxes, from the sale of

[Business-1] stock, if and when it would be sold, and/or of the sale of any

other warrants which Husband had in [Business-1] stock or any other

benefits [Husband] derived from the disposition of his interest in [Business-

1].”   Wife’s Brief at 23 (italics in brief).   Wife contends Husband had a

continuing obligation extending through the 2009 [Business-2A] transaction,

which was less than four years prior to the date she filed her petition to

enforce.   See id. at 25.    In support of her argument that the equitable

distribution agreement was a continuing contract, Wife cites Miller v. Miller,

983 A.2d 736 (Pa. Super. 2009), appeal denied, 998 A.2d 961 (Pa. 2010)

and Crispo v. Crispo, supra.

       In Miller, supra, the defendant/husband was obligated by the parties’

post nuptial separation agreement to pay the mortgage, taxes and insurance

on the marital residence.    Id. at 738. After the husband stopped making

payments based upon a 1996 interim order of child support that directed

plaintiff/wife to pay the mortgage from husband’s child support payments,

wife filed a petition for enforcement of the parties’ agreement in 2005. Id.

at 738–739.      Husband argued that the applicable four-year statute of


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J-A16034-14




limitations barred wife’s claim for reimbursement of payments she made

before November 15, 2001 (i.e., four years prior to when she filed her

petition for enforcement on November 15, 2005). Id. at 743. This Court

rejected husband’s argument, determining that the parties’ agreement was a

continuing contract.   The Court found that husband continued to owe

payments on the marital residence, and noted that the agreement did not

set a specific deadline by which to make the payments and did not identify

specific amounts owed. Id.

     In Crispo, supra, 909 A.2d 308 (Pa. Super. 2006), the parties

entered into a property settlement agreement that detailed various

payments and debts each party would pay. Id. at 309–10. After husband

failed to make payments, wife filed a petition for contempt and/or

enforcement of the property settlement agreement. Id. at 309. The trial

court found husband in contempt and ordered him to fulfill the terms of the

settlement agreement. Id. at 311. Husband appealed, claiming the four-year

statute of limitations for contracts and marriage settlement agreements

applied to wife’s claims. Id. This Court disagreed, concluding that the

parties’ agreement was a continuing contract and the statute of limitations

defense was inapplicable. Id. at 315. In this regard, the Court noted that

their agreement did not contain a specific deadline by which the debts were

to be paid, and that wife continued to make payments to satisfy the debts


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J-A16034-14




that were husband’s obligation.    The Court also noted that there was no

specific start date in the agreement for husband’s installment payments to

wife for the $22,500 amount he had agreed to pay her as her fair share of

the interest in his business. Id. at 313–314.

     Here, however, as the trial court aptly explained, the present case is

distinguishable from Miller and Crispo:

           Wife argues in her Brief in Support of Exceptions that “the
     parties’ agreement is a continuing contract because Husband
     was not fully compensated for the sale of [Business-1] in a lump
     sum, and he had a continuing obligation to pay Wife her share of
     further monies received as a result of the sale.” (Wife’s Brief in
     Support of Exceptions, p. 17). This is an inaccurate conclusion in
     light of the terms of the Equitable Distribution Agreement and
     the evidence before the Court. The Equitable Distribution
     Agreement states, in relevant part, that,

         ... of the first net after taxes of a million dollars husband
         received from the sale of [Business-1] stock, if and when
         it would be sold, and of the sale of any other warrants
         which Husband has in [Business-1] stock or any other
         benefits he derives from the disposition of his interest in
         [Business-1] as it stands right now ... Wife would receive
         45 percent, Husband would receive 45 percent, and 10
         percent would be invested in a vehicle for the Children ...
         And with regard to any amount over that first million net,
         again, defining the proceeds broadly to include
         remuneration of any kind other than his salary or wages
         which he would receive from the disposition of what
         currently exists as of today, it would be split 75 percent
         to Husband, 15 percent to Wife, 10 percent to the
         Children. (8/22/03 H.T. pp. 72- 3) (emphasis added).

            First, the “if and when” language in the Equitable
     Distribution Agreement clearly sets a “definitive time fixed for
     payment”: Wife’s right to receive a percentage of Husband’s
     remuneration from the sale of the [Business-1] stock arose when

                                     -9-
J-A16034-14




     Husband disposed of this stock. Since Husband sold all of his
     [Business-1] stock in the January 22, 2004 [] merger, January
     22, 2004 is the date that Wife became entitled to payment from
     Husband. (Husband’s Exhibit 32, §13).

            … As of November 4, 2003, Husband owned 2,370,000
     shares of voting common stock. (Wife’s Exhibit N). Husband
     testified at the Petition to Enforce hearing that the pre-tax
     market value of this amount of common stock on January 22,
     2004 was worth approximately $850,000. (3/20/12 H.T., p.
     162). Husband further testified that he received a stay bonus as
     a part of the transaction. Husband was allocated this bonus by a
     Corporate Resolution passed by the Shareholders and Directors
     of [Business-1] on January 15, 2004. (Husband’s Exhibit 32).
     Husband testified that this bonus was received because of the
     future commitments he made [], including staying on with
     [Business-1] as an employee at a reduced compensation,
     assigning his future intellectual property rights, signing a long-
     term noncompete, indemnifying the entire merger, and initiating
     and forming an advertising initiative ([Business-2A]). (3/20/12
     H.T., p. 163). Husband contends that these future commitments
     and any monies associated therewith were not available to Wife
     under the Equitable Distribution Agreement, ….

                                      ****

           Wife likens the Equitable Distribution Agreement to the
     property settlement agreements in Crispo and Miller. She
     argues that the Equitable Distribution Agreement is a continuing
     contract that required Husband to pay Wife a percentage of all
     proceeds he received from the sale of the [Business-1] assets as
     those assets were sold. (Wife’s Brief in Support of Exceptions p.
     18). Wife further argues that there is no manner in which the
     Court could determine any specific date on which Husband was
     required to make payments under the parties’ agreement and it
     does not identify specific amounts owed. (Wife’s Brief in Support
     of Exceptions p. 18).

           As discussed supra, the “if and when” language of the
     Equitable Distribution Agreement sets a specific time for
     payment to Wife: when Husband sold his [Business-1] stock, his
     duty to compensate Wife arose simultaneously. Since Husband

                                   - 10 -
J-A16034-14




      disposed of all of his [Business-1] stock on January 22, 2004,
      payment to Wife became due on this date. The specific amounts
      owed from Husband to Wife are also identified in the Equitable
      Distribution Agreement. Under the Agreement Wife would
      receive 45% of the net proceeds up to the first million dollars
      that Husband reaped from the sale of his [Business-1] stock, and
      Wife would thereafter receive 15% of the net proceeds above
      the first million dollars. Since the sale of the [Business-1] stock
      had not yet occurred at the time the Equitable Distribution
      Agreement was entered on the record, the Court finds that the
      identification of percentages owed to each party are appropriate
      proxies for specific dollar amounts.

            In consideration of the above, the Court holds that the
      Equitable Distribution Agreement sets a definitive time for
      payment from Husband to Wife and is distinguishable from the
      property settlement agreements in Crispo and Miller. ….

Trial Court Opinion, supra, at 9–13.

      We agree with the trial court’s analysis. The “if and when” language of

the agreement provided that the date that Husband sold the Business-1

stock — here, January 22, 2004 — was the specific date when Husband

became obligated to make payment to Wife for the Business-1 sale.

Moreover, the parties’ agreement identifies the amount owed to Wife, in

terms of percentages of net proceeds received by Husband. Accordingly, we

conclude Wife’s first argument presents no basis to disturb the trial court’s

determination that the parties’ agreement is not a continuing contract and

that the statute of limitations bars the present action.

      Alternatively, Wife claims that if the statute of limitations is applicable,

the statute of limitations was tolled by: (1) the writ of summons filed by


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J-A16034-14




Wife, (2) the discovery rule, (3) Husband’s concealment and the parties’

ongoing negotiations, and (4) Husband’s acknowledgement of his obligation

to Wife. We are not persuaded by these arguments.

       We first address Wife’s argument that the statute of limitations was

tolled by the writ of summons she filed on January 20, 2005, in the Civil

Division of the Allegheny County Court of Common Pleas, against Husband

and Husband’s wife with a demand for a jury trial. The record supports the

trial court’s finding that Wife’s deposition testimony, taken during her legal

malpractice action against her attorney whom she discharged after the

parties’ agreement was made of record, evidences that she had filed the writ

against Husband and a separate writ against Husband’s attorney to protect

her ability to bring a fraud action in relation to the malpractice action, and

not to protect her interests in this enforcement action.2     See Trial Court

Opinion, 12/2/2013, at 24.            See also N.T., 8/30/2012, at 259, 267;

Husband’s Exhibit 59 § 12. Wife, however, contends that she filed the writ

against Husband to preserve all her legal claims against him. In this regard,

Wife points to her then counsel’s November 1, 2005 letter to Husband,

____________________________________________


2
  In fact, on January 14, 2005, less than one week before Wife filed the writ,
Wife sent Husband an email, stating, in part: “‘The statute of limitations for
fraud in PA is one year, so suit will be filed before the anniversary of the
[January 22, 2004] sale.’” N.T., 3/20/2012, at 84; Husband’s Exhibit 9.




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J-A16034-14




demanding Husband’s payment of additional monies and stating, if Husband

did not agree to payment, Wife would “pursue the fraud claim and all other

legal claims and remedies against you[.]”             Wife’s Exhibit II, Letter from

Wife’s Attorney to Husband, 11/1/2005.             See Wife’s Brief at 29. See also

N.T., 5/29/2012, at 245–246.

        Wife relies on case law that allows a party to file an enforcement

action under § 3105 of the Divorce Code3 and a separate action in the civil

division on the property settlement agreement itself, and maintains that,

because she filed the writ, she can still file a complaint in the civil division at

any time.4     Wife, however, cites no authority that supports the application

of a writ of summons in a civil action to an enforcement proceeding under



____________________________________________


3
    Section 3105 of the Divorce Code provides, in pertinent part:

        (a) Enforcement. --A party to an agreement regarding matters
        within the jurisdiction of the court under this part, whether or
        not the agreement has been merged or incorporated into the
        decree, may utilize a remedy or sanction set forth in this part to
        enforce the agreement to the same extent as though the
        agreement had been an order of the court except as provided to
        the contrary in the agreement.

23 Pa.C.S. § 3105(a).
4
  See Wife’s Brief at 31–32, citing, inter alia, Nicholson v. Combs, 703
A.2d 407, 417 (Pa. 1997); Peck v. Peck, 707 A.2d 1163, 1164 (Pa. Super.
1998).



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J-A16034-14




the Divorce Code.5        Therefore, we agree with the trial court that “Wife’s

claims in the current enforcement action could not and cannot be preserved

by a Writ of Summons[.]”                Trial Court Opinion, 12/2/2013, at 24.

Accordingly, Wife’s reliance on the writ of summons to toll the statute of

limitations fails.

       Next, Wife claims that the discovery rule tolls the statute of

limitations.

       The discovery rule is a judicially created device that tolls the
       running of the applicable statute of limitations until that point
       when the plaintiff knows or reasonably should know: (1) that he
       has been injured; and (2) that his injury has been caused by
       another party’s conduct.

Weik v. Estate of Brown, 794 A.2d 907, 909 (Pa. Super. 2002) (citation

omitted), appeal denied, 813 A.2d 844 (Pa. 2002).

       Whether the statute of limitations has run on a claim is a
       question of law for the trial court to determine; but the question
       as to when a party’s injury and its cause were discovered or
       discoverable is for the [factfinder].

Fine v. Checcio, supra, 870 A.2d at 859.
____________________________________________



5
   Compare Pa.R.C.P. 1007 (“An action may be commenced by filing with the
prothonotary (1) a praecipe for writ of summons, or (2) a complaint.”) with
Pa.R.C.P. 1920.12 (regarding complaint as to cause of action of divorce or
for annulment) and Pa.R.C.P. 1920.43(a)(3) (providing procedure for special
relief in divorce or annulment actions; “At any time after the filing of a
complaint, on petition setting forth facts entitling the party to relief, the
court may, upon such terms and conditions as it deems just, including the
filing of security, … grant other appropriate relief.”).



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       Pennsylvania’s formulation of the discovery rule reflects a narrow
       approach “to determining accrual for limitations purposes” and
       places a greater burden upon Pennsylvania plaintiffs vis-à-vis the
       discovery rule than most other jurisdictions. The commencement
       of the limitations period is grounded on “inquiry notice” that is
       tied to “actual or constructive knowledge of at least some form
       of significant harm and of a factual cause linked to another’s
       conduct, without the necessity of notice of the full extent of the
       injury, the fact of actual negligence, or precise cause.”

Gleason v. Borough of Moosic, 15 A.3d 479, 485 (Pa. 2011) (citations

omitted).

       Wife claims the statute of limitations could not have begun to run until

after Husband provided her with his relevant tax returns in the summer of

2011 and 2012 pursuant to court order, because only then was she able to

verify the correct amounts of the 2004 sale of Business-1 and the 2006 and

2009 Business-2A transactions.          See Wife’s Brief at 34–35.   The trial court,

however, found that after Wife learned of the January, 2004 Business-1

sale,6 Husband provided Wife with distribution spreadsheets explaining the

amounts Husband received from the sale, which Wife acknowledged by a

notation on the documents in April 2004. Additionally, the trial court found

that Husband provided Wife with the closing binder of the Business-1

____________________________________________


6
   Wife testified she learned about the Business-1 sale, and the new
company, Business-2A, in April, 2004, when a friend sent her a newspaper
article about the sale. See N.T., 3/20/2012, at 45; N.T., 5/29/2012, at
175–178. See also Wife’s Brief at 7–8.




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transaction in early January of 2005, following which Wife sent Husband an

email on January 14, 2005, indicating that she still believed Husband owed

her money under the parties’ equitable distribution agreement.7     See Trial

Court Opinion, 12/2/2013, at 14–15. These findings are supported by the

record.    Furthermore, we agree with the trial court that the January 14,

2005 date of Wife’s email to Husband must be considered the latest date for

application of the discovery rule, as she evidenced her belief at that time

that she had suffered harm. Therefore, the statute of limitations expired on

January 14, 2009, over two years before Wife filed her petition for

enforcement.      Accordingly, we conclude the discovery rule does not save

Wife’s petition from Husband’s statute of limitations defense.

       Wife further claims that the statute of limitations was tolled by

Husband’s concealment and the parties’ negotiations.

       [T]he doctrine of fraudulent concealment serves to toll the
       running of the statute of limitations. The doctrine is based on a
____________________________________________


7
  The January 14, 2005 email exchange between Wife to Husband included
the following message from Wife to Husband:

       You obviously received millions of dollars in a cash deal on
       January 22, 200[4]. That fact is not subject to interpretation. I
       now have information inconsistent with the homemade
       spreadsheets I received from you in April. Meeting with you gets
       me nowhere, because it is what it is. I’m not interested in re-
       forming the deal. I want a check tonight.

Husband’s Exhibit 9; see N.T., 3/20/2012, at 86–87.



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J-A16034-14




        theory of estoppel, and provides that the defendant may not
        invoke the statute of limitations, if through fraud or
        concealment, he causes the plaintiff to relax his vigilance or
        deviate from his right of inquiry into the facts. The doctrine does
        not require fraud in the strictest sense encompassing an intent
        to deceive, but rather, fraud in the broadest sense, which
        includes an unintentional deception. The plaintiff has the burden
        of proving fraudulent concealment by clear, precise, and
        convincing evidence.

Fine v. Checcio, supra, 870 A.2d at 860 (citations omitted).

        Wife asserts that Husband concealed the amount of monies he

received from the Business-1 transaction.          Wife contends that Husband,

through counsel, “averred that he received no more than $1,000,000” and

“state[d] Wife was overpaid,”8 and in support of this argument points to a

May 7, 2007 letter from Husband’s counsel. However, the letter itself belies

Wife’s claim.      Counsel’s letter stated that counsel had “no information

[related to the sale of Business-1] other than what [Husband] advised me,

which is that all of the monies were paid.”             Wife’s Exhibit G; N.T.,

3/20/2012, at 270.           Counsel further stated:   “I believe that it is true

[Husband] has paid [Wife] all or perhaps in excess of the amount he owed

pursuant to the equitable distribution settlement.”       Id.   Counsel made no

representation concerning the amount Husband received from the Business-

1 sale.      Further, counsel’s statement that Husband had satisfied his
____________________________________________


8
    Wife’s Brief at 37–38.




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obligation to Wife was not a misrepresentation of the amount received by

Husband for the sale of Business-1.

       Next, Wife points to “Husband’s testimony herein claiming receipt of

only $850,000, while his tax return for 2004 shows receipt of $2.6 million

and his 2006 and 2009 tax returns show receipt of additional funds that are

in excess of $1 million.”       Wife’s Brief at 38.      Husband’s testimony at the

hearings before the master, however, could not have misled Wife.9

       Wife argues that “Husband has taken the position in a letter from

counsel, his answer to Wife’s petition to enforce and his testimony herein,

that he had no further obligation to Wife; this notwithstanding that for years

Husband has negotiated the further amount due Wife, acknowledging such

debt and interest owing for such debt.”               Wife’s Brief at 39-40.    This

argument, however, ignores the well settled principle that settlement

negotiations do not toll the statute of limitations.         Nesbitt v. Erie Coach

Company, 204 A.2d 473 (Pa. 1964).                  To the extent that Wife relies on

Nesbitt for the proposition that “if through fraud or concealment the

defendant causes the plaintiff to relax his vigilance or deviate from his right

____________________________________________


9
  The record reflects that Husband testified at the petition to enforce hearing
that he received $2.6 million in cash for the Business-1 stock and a stay
bonus. He stated the common shares he held in Business-1 on August 22,
2003, had a value of $850,000 on January 22, 2004. See N.T., 3/20/2012,
at 293.



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J-A16034-14




of inquiry, the defendant is estopped from invoking the bar of limitation of

action,”10 we conclude, based upon our rejection of Wife’s concealment

arguments, that Nesbitt has no application to the present case. Therefore,

we find Wife’s argument that the statute of limitations was tolled by

Husband’s concealment and settlement negotiations presents no basis upon

which to disturb the trial court’s decision.

        In addition, Wife asserts that Husband’s acknowledgement of his

obligation to Wife precluded Husband’s statute of limitation defense.

        Pursuant to the “acknowledgement doctrine,” a statute of
        limitations may be tolled or its bar removed by a promise to pay
        the debt.

           A clear, distinct and unequivocal acknowledgement of a
           debt as an existing obligation, such as is consistent with a
           promise to pay, is sufficient to toll the statute. There
           must, however, be no uncertainty either in the
           acknowledgement or in the identification of the debt; and
           the acknowledgement must be plainly referable to the
           very debt upon which the action is based; and also must
           be consistent with a promise to pay on demand and not
           accompanied by other expressions indicating a mere
           willingness to pay at a future time. A simple
           declaration of an intention to discharge an
           obligation is not the equivalent of a promise to pay,
           but is more in the nature of a desire to do so, from
           which there is no implication of a promise.

Huntingdon Fin. Corp. v. Newtown Artesian Water Co., 659 A.2d 1052,

1054 (Pa. Super. 1995) (citations omitted) (emphasis added).
____________________________________________


10
     Nesbitt, supra, 204 A.2d at 475 (citations omitted).



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J-A16034-14




       Contrary to Wife’s claim, the record fails to show that Husband

acknowledged a debt to Wife. Here, Wife, on November 20, 2007, sent an

email to Husband in which she stated that she would be willing to accept

$200,000      to   resolve    the     outstanding   equitable   distribution   claims.

Husband’s Exhibit 24; N.T., 3/20/2012, at 215–226.                    Subsequently,

Husband emailed Wife on May 27, 2009, stating “I just want to verify that

the final payment of $200,000 (plus an interest amount accruing from last

spring which we still need to specify and agree upon) will complete the

payments under our settlement agreement. Please verify this so I can give

you a check this evening.” Husband’s Exhibit 29; N.T., 3/20/2012, at 230.

Husband’s      willingness       to   accept   Wife’s   proposal    was    not    the

acknowledgement of a debt. Husband had maintained that he had overpaid

Wife.11 Nor was there a promise to pay $200,000 on demand. Husband’s


____________________________________________


11
  Following Husband’s May 27, 2007, email, Wife emailed Husband on May
28, 2009, seeking to condition the $200,000 payment upon “authorization if
ever needed to review the appropriate documents,” and Husband answered,

       We need to discuss then. You can have access to whatever
       information you want and we can then determine what is owed
       under the Settlement Agreement. As you know, we have
       different perspectives on what that may be. My perspective is
       that I have paid more than my obligation – your position is that I
       have paid less.     As part of a proposed settlement to get
       everything resolved, you and [your attorney] presented to me
       this dollar amount ($200,000) and said let’s call it complete —
(Footnote Continued Next Page)


                                          - 20 -
J-A16034-14




response asking Wife “to verify that the final payment of $200,000 … will

complete the payments” was a settlement negotiation – “a simple

declaration of an intention to discharge an obligation,”12 which is not the

equivalent of a promise to pay. Accordingly, the statute of limitations was

not tolled where Husband did not acknowledge a debt to Wife.

      Finally, Wife claims that the trial court erred in ruling that Husband’s

laches defense barred Wife’s action to enforce the parties’ equitable

distribution agreement.

      “The doctrine of laches is applicable when two conditions are satisfied:

‘the complaining party must be guilty of a want of due diligence in failing to

assert his rights and the failure must have worked to the prejudice of the

party seeking its application.’” In re Estate of Bowman, 797 A.2d 973,

977 (Pa. Super. 2002) (citation omitted)).

      Wife asserts that the parties’ agreement was a continuing contract,

and therefore, the doctrine of laches cannot be applied in this matter.


                       _______________________
(Footnote Continued)

      please remember that you and [your attorney] came up with
      that number — not me.”

Husband’s Exhibit 29; N.T., 3/20/2012, at 230, 232–233.
12
  Huntingdon Fin. Corp. v. Newtown Artesian Water Co., supra, 659
A.2d at 1054.




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Furthermore, Wife contends that neither condition for application of the

doctrine of laches was met in this case. These arguments fail.

      As discussed above, the parties’ equitable distribution agreement is

not a continuing contract. Moreover, we conclude that the trial court

committed no error in finding that the conditions for application of the laches

defense were met in this case. See In re Estate of Bowman, supra. In

this regard, we adopt the discussion of the trial court as dispositive:

            The Court finds that Wife’s actions in this matter invoke
      the doctrine of laches. The evidence shows that Husband
      provided Wife in January 2005 the materials that explained the
      [Business-1] transaction. In February 2006 Husband offered to
      arrange a meeting between the transactional attorney who
      helped effectuate the [Business-1] transaction and Wife to
      discuss the closing documents. (Husband’s Exhibit 9; Husband’s
      Exhibit 22). Wife’s counsel took advantage of this opportunity
      (although he refused to discuss the documents with either
      Husband or the transactional attorney) later that month. After
      two examinations of the [Business-1] closing documents
      performed by Wife and/or her agent, followed by Wife’s
      consistent assertions that Husband owed her more money under
      the Equitable Distribution Agreement, the Court finds that Wife
      did not exercise due diligence in the pursuit of her claim by filing
      the present action five (5) years after these events took place.

             The Court further finds that Husband was prejudiced by
      Wife’s actions because he made a $150,000 payment to Wife
      under the pretenses that this amount would resolve the parties’
      equitable distribution issues. Even though Husband believed that
      he paid Wife the correct amount due to her closely following the
      [Business-1] sale (a sum of $300,000), Husband paid Wife an
      additional $150,000 in September 2005 in an attempt to
      completely settle the matter. Wife, however, continued to pursue
      more funds under the Equitable Distribution Agreement. This
      clearly prejudiced Husband because he believed that the
      payment of this amount to Wife would end their dispute and

                                     - 22 -
J-A16034-14




     quell the possibility of any further court action. If Wife sought to
     enforce her claims in a timely manner, it is likely that Husband
     would have withheld any payments to Wife and waited until the
     Court disposed of the conflict.

           Since the two prongs of the “doctrine of laches” test have
     been met, Wife’s claims are properly barred by the doctrine of
     laches.

Trial Court Opinion, 12/2/2013, at 27–28.

     Accordingly, we affirm.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2014




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