J-A05035-19

                                  2019 PA Super 133


    BETH ANNE F. WEBER                         :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARK D. WEBER                              :
                                               :
                                               :   No. 1095 WDA 2018
                v.                             :
                                               :
                                               :
    MICHAEL WEBER                              :
                                               :
                                               :
    APPEAL OF: MICHAEL WEBER                   :
                                               :

                    Appeal from the Order Dated July 5, 2018
    In the Court of Common Pleas of Crawford County Civil Division at No(s):
                               AD No. 1999-1298


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

OPINION BY MURRAY, J.:                                   FILED APRIL 26, 2019

       Michael Weber (Son) appeals1 from the trial court’s order granting the

motion of Mark D. Weber (Father) for summary judgment, and dismissing

Son’s petition for special relief, which was filed in the divorce action between

Father and Beth Anne F. Weber (Mother).2 After careful consideration, we

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1As we discuss infra, this matter comes before this Court for the second time.
See Weber v. Weber, 168 A.3d 266 (Pa. Super. 2017).

2The underlying petition for relief was filed by Son solely and did not request
any payment or damages to be paid to Mother. However, Son’s notice of
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hold that Father and Mother’s property settlement agreement, which obligated

them to share the costs of their children’s college expenses, was a continuing

contract. We further hold, however, that these obligations were subject to

the statute of limitations,3 which began to run when each child completed his

or her college education. Applying this rationale to the case before us, we

affirm.

        We review the protracted procedural history of this case given the

relevancy to Son’s claims. Mother and Father were married and have two

adult children: Son, born in 1988, and a daughter, born in 1994. In 1999,

Mother and Father executed a written agreement (Agreement) as part of their

divorce proceedings. Paragraph 18 of the Agreement provided in pertinent

part:

        18. POST SECONDARY EDUCATION: Parents shall share equally
        the reasonable costs of an appropriate undergraduate college or
        other post-secondary education for the children.
____________________________________________


appeal and appellate brief both identify Mother (who has separate counsel
from Son) as an additional “appellant.” Regardless of Mother’s personal
support for Son’s position and the fact that they have submitted joint filings
in support of Son’s petition, Mother is not an aggrieved party for purposes of
appeal. See Pa.R.A.P. 501 (“Except where the right of appeal is enlarged by
statute, any party who is aggrieved by an appealable order . . . may appeal
therefrom.”); In re Jackson, 174 A.3d 14, 24 (Pa. Super. 2017) (“An
aggrieved party must have a substantial interest at stake. . . . [T]he party’s
interest must be adversely affected in a manner[ ] which is both direct and
immediate.”). Accordingly, Mother does not have standing to appeal, and we
have amended the caption to reflect that Son is the sole appellant in this
appeal.

3See 42 Pa.C.S.A. § 5525(a)(8) (generally, an action upon a contract must
be commenced within 4 years).

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Memorandum of Agreement, 11/10/99, at ¶ 18. A divorce decree was entered

in March of 2000.

       Seven years later, in 2007, Mother filed a petition for special relief,

averring that Son was a freshman at Florida State University (FSU), and Father

was in breach of the Agreement because he failed to pay his share of Son’s

tuition as required by Paragraph 18.             Son requested, and the trial court

granted him, intervenor status based on Son’s interest as an intended

beneficiary of the Agreement.             Subsequently, however, Mother filed a

voluntary nonsuit, which stated that the parties agreed to withdraw the

petition. According to Son’s filings in the underlying matter, he studied at FSU

from 2007 through 2011. Son’s Pre-Hearing Narrative, 7/18/16.

       There was no activity on Mother and Father’s divorce docket until April

of 2016, when Son (then approximately 28 years old) filed the instant petition

for special relief.      The petition asserted, in pertinent part, that: Son

“graduated” from FSU; the total cost of his “undergraduate education at [FSU]

was approximately $166,148.71, one half of which is $79,988.44, plus interest

as paid by [Son] on student loans, in the approximate amount of $24,000.00”;

but Father has only paid $9,085.92.4 Son’s Petition for Special Relief, 4/1/16,

at ¶¶ 4, 11.     Father filed an answer and new matter, averring that Son’s


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4 The parties’ pleadings presented numerous other issues which Son does not
raise on appeal.


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J-A05035-19


contract claim was barred by the 4-year statute of limitations at 42 Pa.C.S.A.

§ 5225(a)(8). Son responded that the Agreement was continuing in nature

and thus not subject to the statute of limitations.

      On July 18, 2016, Son filed a brief in support of his petition for special

relief, which again stated that he “graduated from” FSU. Son’s Brief in Support

of Petition for Special Relief, 7/18/16, at 3. However, Son further stated, for

the first time, that he attended “graduate school” and that Father was also

obligated to pay half of those expenses:

      [Son] attended Palm Beach Atlantic University for pharmacy
      school until 2015. During his four years of graduate school, he
      incurred $196,455.00 in student loan debt solely to provide for
      tuition and housing. The language of the Agreement calls for the
      parents to share in “other post-secondary” education costs, and
      [Father] is responsible for one half or $98,227.50 of the graduate
      school expenses incurred.

Id. at 4-5 (emphases added).

      Three days later, the trial court heard oral argument from the parties

concerning various issues, including Father’s defense of the statute of

limitations. The trial court noted that Son’s petition for special relief did not

include graduate school expenses. N.T., 7/21/16, at 4-5. Son orally moved

to amend the petition to include them, and the trial court allowed this

amendment. Id. at 6, 13. The court did not enter any further rulings at this

hearing.

      On August 8, 2016, the trial court issued a memorandum and order

dismissing Son’s petition for lack of standing.       The court reasoned that


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because Mother withdrew her 2007 petition for special relief and did not

participate in Son’s 2016 petition, Son lacked standing to seek special relief

under the Divorce Code. Son appealed. In an opinion published on August

11, 2017, a panel of this Court reversed, holding that Son had standing to

seek relief and remanding for further proceedings. Weber, 168 A.3d 266.

      Upon remand, Father filed a motion for summary judgment on April 26,

2018, again arguing that Son’s 2016 petition was time-barred by the statute

of limitations.   Additionally, around this time, in answering Father’s

interrogatories, Son stated that he had not earned any undergraduate degree.

Father’s Motion for Summary Judgment, 4/26/18, Exhibit 11 (Son’s Answers,

Responses & Objections to Interrogatories at 1). Instead, Son claimed that

when he had earned sufficient undergraduate credits to begin pharmacy

school, he enrolled in Palm Beach Atlantic University.

      Son and Mother filed a joint responsive brief to Father’s summary

judgment motion. This brief stated — on the same page — that Son did not

graduate from FSU, yet incurred “graduate school costs” for pharmacy school.

Son’s Response & Brief, 5/16/18, at 19. In any event, the brief asserted that

under the plain language of the Agreement, Father was required to pay for

half of Son’s pharmacy education expenses because the phrase “post-

secondary” includes any education after high school. Id. at 17.

      On July 5, 2018, the trial court issued a memorandum and order

granting Father’s motion for summary judgment and dismissing Son’s petition


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J-A05035-19


for special relief. The court agreed with Father that the Agreement did not

create a continuing obligation, and thus Son’s petition was subject to the

statute of limitations.   The court also found that Son’s pharmacy school

education was graduate-level and not included in Father’s obligations under

Paragraph 18. Memorandum & Order, 7/5/18, at 4-5 n.6 (noting that Son’s

claim, that he never obtained an undergraduate degree, was belied by his

earlier filings). The court then reasoned that “Son’s contractual relationship

with [Father] ended in 2011 when he completed his studies at FSU,” and

concluded that Son’s petition was time-barred by the statute of limitations.

Id. at 9.

      Son filed a timely motion for reconsideration, but before the trial court

addressed it, Son filed a timely notice of appeal. See Schoff v. Richter, 562

A.2d 912, 913 (Pa. Super. 1989) (“[Pa.R.A.P. 1701] tolls the time for taking

an appeal only when the [trial] court files ‘an order expressly granting

reconsideration . . . within the time prescribed by these rules for the filing of

a notice of appeal.’”).   Both the trial court and Son have complied with

Pennsylvania Rule of Appellate Procedure 1925.

      Son presents one issue, in two parts, for our review:

      WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN
      HOLDING THAT THE STATUTE OF LIMITATIONS HAD EXPIRED
      AND GRANTING [FATHER’S] MOTION FOR SUMMARY JUDGMENT
      BECAUSE:

            A.  [SON’S]  ATTENDANCE   AT  PHARMACY    SCHOOL
            CONSTITUTES “OTHER POSTSECONDARY EDUCATION”
            UNDER THE TERMS OF THE AGREEMENT IN QUESTION AND

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J-A05035-19


           SON FILED THE PETITION FOR SPECIAL RELIEF WITHIN FOUR
           YEARS OF COMPLETING PHARMACY SCHOOL?

           B. WHETHER THE AGREEMENT TO PAY FOR AN
           “APPROPRIATE UNDERGRADUATE COLLEGE OR OTHER POST-
           SECONDARY EDUCATION” CREATES A CONTINUING
           CONTRACT, THEREFORE, TOLLING THE STATUTE OF
           LIMITATIONS[?]

Son’s Brief at 5.

      We first note the standard of review of an order granting or denying a

motion for summary judgment:

      We view the record in the light most favorable to the nonmoving
      party, and all doubts as to the existence of a genuine issue of
      material fact must be resolved against the moving party. Only
      where there is no genuine issue as to any material fact and it is
      clear that the moving party is entitled to a judgment as a matter
      of law will summary judgment be entered. Our scope of review of
      a trial court’s order granting or denying summary judgment is
      plenary, and our standard of review is clear: the trial court’s order
      will be reversed only where it is established that the court
      committed an error of law or abused its discretion.

Kozel v. Kozel, 97 A.3d 767, 772 (Pa. Super. 2014) (citation omitted). See

also Pa.R.C.P. 1035.2(1) (“After the relevant pleadings are closed . . . any

party may move for summary judgment in whole or in part as a matter of law

. . . whenever there is no genuine issue of any material fact as to a necessary

element of the cause of action or defense which could be established by

additional discovery or expert report[.]”).

      Furthermore:

      [W]e have held that a grant of relief under a petition for special
      relief based upon the interpretation of a marital settlement
      agreement “is within the sound discretion of the trial court and is
      an exercise of the court’s equitable powers, and will not be

                                      -7-
J-A05035-19


     disturbed on appeal unless the trial court’s decision is an abuse of
     discretion.”

delCastillo v. delCastillo, 617 A.2d 26, 28-29 (Pa. Super. 1992) (citation

omitted).

     Son first contends that the trial court erred in finding that the phrase in

“other post-secondary education” did not include his pharmacy school studies.

Son avers that “post-secondary education” is an “expansive term,” whose

plain meaning includes any education after high school, and thus Paragraph

18 obligated Father to pay for Son’s pharmacy school expenses. Son’s Brief

at 11, 19.     Son acknowledges that in delCastillo, this Court held that

language in a divorce property settlement-agreement — “to provide education

for the children beyond the high school level” — “limited the obligation to

undergraduate education.” Son’s Brief at 20, citing delCastillo, 617 A.2d at

27, 29. However, he reasons that delCastillo, which was decided 20 years

ago, was “based on the idea that graduate school studies were not necessary,”

but now, “the need for a graduate degree is greater than ever.” Id. at 21,

citing Laura Pappano, The Master’s as the New Bachelor’s, N.Y. TIMES, July 22,

2011. Additionally, Son contends that Father was aware of, but did not object

to, his “enter[ing] his undergraduate studies with a long-term goal of being a

pharmacist.” Id. at 22.

     This Court has stated:

            “It is well established that in Pennsylvania, a settlement
            agreement between a husband and wife is governed by the
            law of contracts unless the agreement itself provides

                                     -8-
J-A05035-19


          otherwise.”      When interpreting a property 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.

delCastillo, 617 A.2d at 28 (citations omitted). “[U]nder the law of contracts,

the court must ascertain the intent of the parties when interpreting a

contractual agreement.” Crispo v. Crispo, 909 A.2d 308, 313 (Pa. Super.

2006) (citations omitted). “When construing agreements involving clear and

unambiguous terms, a trial court need only examine the writing itself to give

effect to the parties’ understanding. A court may not modify the plain meaning

of the words under the guise of interpretation.” Id. (citations omitted). When

interpreting the word “or” in a contract, “[w]e are bound to give ‘or’ its normal

disjunctive meaning unless its ordinary meaning would ‘produce a result that

is absurd or impossible of execution or highly unreasonable . . . .’” In re

Fiedler, 132 A.3d 1010, 1022 (Pa. Super. 2016) (citation omitted).

      As acknowledged by Son, in delCastillo, the parties executed a

marriage-separation property settlement agreement, which set forth the

parties’ obligation “to provide education for their children beyond the high

school level.”    See delCastillo, 617 A.2d at 27.     The parties’ son sought

specific performance of this provision, arguing that it obligated the parties to

pay not only for his undergraduate college education, but also his post-

graduate education. Id. at 28. The trial court disagreed, and on appeal, this

Court affirmed:

          “This [C]ourt has previously declined to require an extension

                                      -9-
J-A05035-19


          of the parental obligation to support children in their
          educational pursuits to postgraduate and professional
          school.” . . . “[C]ase law sets the limits of parental obligation
          [for educational support] at college or majority[.]” Obviously,
          a contract specifically mandating a parent’s obligation to pay
          for graduate school studies will be enforced. But where, as
          here, a contract is ambiguous as to the parents’ intentions,
          we conclude that a twenty-seven year old married man with
          a child cannot expect the courts to enforce such a claim.

Id. at 29 (citations omitted).

      Instantly, Son appears to argue that his pharmacy school education

should be considered a part of his undergraduate studies. See Son’s Brief at

19-20 (arguing that a doctor of pharmacy degree “is considered a first-

professional degree” and “an entry level degree in the field of pharmacy,” and

that “[u]nder the facts of this case, Son was not required to earn an

undergraduate degree before enrolling in pharmacy school”). However, as

the trial court pointed out, this argument would contradict Son’s own

statements that he graduated from FSU, as well as his numerous references

to his FSU studies as his “undergraduate” education and his pharmacy studies

as “graduate school.” See Son’s Petition for Special Relief, 4/1/16, at ¶ 4;

Son’s Brief in Support of Petition for Special Relief, 7/18/16, at 3 (“[Son]

attended and graduated from [FSU.]” Prior to [Son’s] graduation from [FSU]

. . . . ”), 4 (“Following his graduation from [FSU, Son] enrolled in graduate

school. He attended Palm Beach Atlantic University for pharmacy school until

2015.”). Furthermore, Son created and filed spreadsheets, attached to his

“Pre-Hearing Narrative,” which bore the headings “Undergraduate Costs” and


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J-A05035-19


“Graduate School Costs.” Father’s Motion for Summary Judgment, 4/26/18,

Exhibit 9 (Son’s Pre-Hearing Narrative, 7/18/16, at 1).      Furthermore, Son

acknowledges in his brief that he finished the undergraduate portion of his

post-secondary education in May of 2011.”          Son’s Brief at 11 (emphasis

added).

       We note that Son relies on webpages from the U.S. Department of

Education’s website, which, according to him, state that a Doctor of Pharmacy

degree is considered both a first-professional degree and an entry-level

degree. Son’s Brief at 20. The trial court, however, pointed out that the same

webpage stated that first-professional degrees, including a doctor of

pharmacy, “are considered graduate-level programs in the U.S. system

because the [sic] follow prior undergraduate studies.” Memorandum & Order,

7/5/18, at 5 n.6, citing Son’s Response & Brief in Opposition to Father’s Motion

for Summary Judgment, 5/16/18, Exhibit B (Affidavit of Son & “Structure of

the U.S. Education System: First -Professional Degrees”5).

       Furthermore, with respect to Son’s insistence that a Doctor of Pharmacy

degree is a “first-professional degree,” we note that the same Department of

Education webpage also included, as “first-professional degree titles,” the


____________________________________________


5  Appellant’s printed copy of this webpage, appearing in the record, provide
the     internet     address     http://www.ed.gov/international/usnei/edlite-
index.html. However, as of the date of this writing, that address no longer
links to the page cited by Appellant, and instead, we found the page at
https://www2.ed.gov/about/offices/list/ous/international/usnei/us/professio
nal.doc.

                                          - 11 -
J-A05035-19


degrees of juris doctor (J.D.), doctor of medicine (M.D.), doctor of dental

science (D.D.S.) and doctor of dental medicine (D.M.D.).

      Nevertheless, Son also argues on appeal that the phrase, “an

appropriate undergraduate college or other post-secondary education” in the

Agreement, includes both undergraduate and graduate studies. Son’s Brief

at 20. Son thus contends that the statute of limitations began to run when

he completed pharmacy school in 2015, and not in 2011 as decided by the

trial court.

      Son ignores, however, the trial court’s discussion of the disjunctive term

“or,” which the court interpreted to mean either college or another type of

post-high school education, but not both. See Memorandum & Order, 7/5/18,

at 4 n.6.      Given Son’s admissions that he “graduated” from FSU before

enrolling in pharmacy school, we agree with the trial court’s analysis. See In

re Fiedler, 132 A.3d at 1022. In the absence of explicit language requiring

Mother and Father to pay for any graduate program, the court did not abuse

its discretion in rejecting Son’s request to construe such a requirement. See

delCastillo, 617 A.2d at 28-29.     Finally, to the extent that Son relies on

Father’s alleged “awareness and lack of objection” to Son’s “long-term goal of

being a pharmacist,” such fact is not relevant to the court’s interpretation of

the terms of the Agreement. See Crispo, 909 A.2d at 313 (“[A] trial court

need only examine the writing itself to give effect to the parties’

understanding.”). Therefore, we discern no basis upon which to disturb the


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J-A05035-19


court’s finding that the Agreement did not obligate Father to pay for Son’s

pharmacy school expenses.         We next consider Son’s claims that the

Agreement was a continuing contract and that it was not subject to the statute

of limitations.

      Son alleges that the trial court erred in finding that the Agreement was

not a continuing contract.    Son’s Brief at 25.   He maintains that property

settlement agreements have been deemed continuing contracts when there

were no specified deadlines for payment or no specific amounts, and that here,

the Agreement did not set any dates for payment. Son relies, in pertinent

part, on Crispo, 909 A.2d 308 (discussed infra).

      This Court has explained:

      “[A] question regarding the application of the statute of limitations
      is a question of law.” . . . “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.”

K.A.R. v. T.G.L., 107 A.3d 770, 775 (Pa. Super. 2014) (citations omitted).

      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.” 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[, 909 A.2d at 313.] “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.”

Id. at 775-776 (some citations omitted). Property settlement agreements in


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J-A05035-19


divorce actions have been held to be continuing contracts “where the duties

of the parties are ongoing.” Crispo, 909 A.2d at 315.

      In Crispo, the parties’ 1995 property settlement agreement provided

that: (1) each party would assume responsibility for specified credit card

debts; (2) the husband would pay the wife $22,500 for her interest in his

business; (3) the wife agreed “to defer payment of this amount until August

1, 2001, providing [the husband did] not seek a decrease of the present child

support Order;” and (4) if the husband filed a petition to decrease his court-

ordered child support obligation, he would pay the wife $22,500 within 30

days of his filing the petition. Crispo, 909 A.2d at 309. Sometime in the fall

of 1996, the husband filed a petition to modify the child support order, but did

not pay wife the $22,500 as required by their agreement; he also did not pay

the credit card balances that were allocated to him. Id. at 310. In 2004, the

wife filed a petition for special relief, arguing that the husband failed to comply

with the agreement. Id. at 309. The husband responded that her claims were

barred by the statute of limitations, but the trial court disagreed. Id. at 310.

      On appeal, this Court affirmed, concluding that the agreement was a

continuing contract, and thus the statute of limitations did not apply. Crispo,

909 A.2d at 312-314. We observed that “both parties agreed to assume the

payment of certain credit card balances and included no specific deadline by

which those debts would be paid,” and the agreement’s provision that the

husband would pay the wife $22,500 for her interest in his business did “not


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provide a specific start date for the first installment.” Id. at 313. We further

noted: “[I]n the case of continuing contracts, such as postnuptial agreements,

where the duties of the parties are ongoing, the statute of limitations generally

does not run.” Id. at 315.

       We next consider the decision in K.A.R., 107 A.3d 770, upon which the

trial court in this case relied. In that case, the husband and wife’s equitable

distribution agreement provided, generally, that “if and when” the husband

sold stocks in his business, the wife would receive 45% of the net proceeds.6

K.A.R., 107 A.3d at 773. Subsequently, the wife filed a petition to enforce

the agreement, claiming that the husband sold a portion of his stocks, but

failed to pay her proceeds. Id. at 773-774. The trial court denied relief on

the basis that the wife’s claims were time-barred by the statute of limitations.

Id. at 775.

       On appeal, this Court agreed, and rejected the wife’s contention that

the parties’ agreement was a continuing contract. K.A.R., 107 A.3d at 775-

776. The K.A.R. Court considered, but distinguished, Crispo, emphasizing

that the phrase “if and when [the stock] would be sold” “clearly set[ ] a

‘definitive time fixed for payment’: Wife’s right to receive a percentage of

Husband’s remuneration from the sale of the . . . stock arose when Husband



____________________________________________


6 The facts in K.A.R. are more complex, but because the complexities are not
relevant to our disposition of Son’s claim, we omit them. See K.A.R., 107
A.3d at 773-774.

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disposed of this stock.” Id. at 776-777. We further held that the agreement

identified the amount owed to the wife — 45% of the net proceeds. Id. at

778.

       Instantly, the trial court applied K.A.R. to conclude that “by implication,

[Father’s] obligations under [P]aragraph 18 of the Agreement would arise

simultaneously if and when a child (having the aptitude and desire) attended

an undergraduate college or undertook another type of post-secondary

education.”   Memorandum & Order, 7/5/18, at 7          After careful review, we

disagree that the “if and when” language in the K.A.R. agreement — which

pertained to the single, isolated action of the husband’s selling stocks — can

be read into the Agreement in this case. Instead, the Agreement required the

parties to share their children’s college or undergraduate expenses, which

presumably would span several years. Thus, the Agreement was a continuing

contract. See Crispo, 909 A.2d at 315.

       We agree, however, with the trial court’s analysis that the agreement to

share the children’s college or undergraduate expenses was nevertheless

subject to the statute of limitations. See Memorandum & Order, 7/5/18, at 7

(“Even if we were to conclude that the provision regarding the children’s post-

secondary education created a continuing contract, this does not mean that

the statute of limitations could never become operative.”).         As stated in

Crispo: “When a contract is continuing, the statute of limitations will run

either from the time when the breach occurs or when the contract is in some


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way terminated.” Crispo, 909 A.2d at 313. As discussed above, any breach

of Paragraph 18 would have occurred, at the latest, “in 2011 when [Son]

completed his studies at FSU,” see Memorandum & Order, 7/5/18, at 9, and

the four-year statute of limitations began to run at that time.      See 42

Pa.C.S.A. § 5525(a)(8); Memorandum & Order, 7/5/18, at 9. Son’s petition

for special relief, filed in 2016, was thus out of time.

      For the above reasons, we affirm the order granting Father’s motion for

summary judgment and dismissing Son’s petition for relief.

      Order affirmed.

      P.J.E. Gantman joins the opinion.

      Judge Shogan files a concurring dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2019




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