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.

CONCURRING AND DISSENTING OPINION BY SHOGAN, J.:
FILED APRIL 26, 2019

      I concur with the Majority’s conclusion that the trial court erred in

determining that the settlement agreement in this case was not a continuing

contract.   I respectfully dissent, however, from the conclusion that the

applicable statute of limitations began to run in 2011 and would reverse the

grant of summary judgment.

      The Majority opinion explains the factual and procedural history and

dispute in this case; therefore, I confine my disagreement solely to the

interpretation the Majority advances in favor of affirmance. The Memorandum
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of Agreement (“Agreement”) entered into in 1999 by Mark D. Weber

(“Father”) and Beth Anne F. Weber (“Mother)1 on behalf of Michael Weber

(“Son”) and his sister provided, in pertinent part, as follows:

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

Agreement, 11/10/99, at ¶ 18 (emphasis added). I find myself at odds with

the Majority’s alignment with the trial court that the phrase, “other post-

secondary education,” equates only to Son’s credits while attending Florida

State University (“FSU”).       Majority Opinion at 6 (“Son’s contractual

relationship with Father ended in 2011 when he completed his studies at FSU”)

(citing Memorandum and Order, 7/5/18, at 4–5 n.6).

       The trial court, in reaching its conclusion, acknowledged the possibility

of ambiguity in this provision. See Memorandum and Order, 7/5/18, at 4 n.6

(“Even if the phrase were considered to be ambiguous as to the parents’

intentions, [Paragraph 18] does not include graduate school or professional

level training.”). For support, the trial court cited delCastillo v. delCastillo,

617 A.2d 26, 29 (Pa. Super. 1992). The delCastillo Court, and indeed the

trial court herein, relied upon the statement in Brown v. Brown, 474 A.2d

1168 (Pa. Super. 1984), that the term “college” referred “only to

undergraduate study leading to a bachelor’s degree.” delCastillo, 617 A.2d

at 524 (citing Brown, 474 A.2d at 1170). The trial court reasoned, and based


1   Mother and Father divorced in March of 2000.

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on this, the Majority agrees, that in the instant case the parents’ obligation

under the Agreement therefore ended when Son completed his prerequisites

for his pharmacy major at FSU. Majority Opinion at 6. This matter, however

does not involve the interpretation of the word “college.”        Brown and

delCastillo are distinguishable, in my view.

      Herein, the Majority loses sight of the fact that the instant trial court

was not interpreting the meaning or reach of the term “college,” as was the

court in delCastillo. Rather, in their Agreement, Mother and Father utilized

the phrase “or other post-secondary education,” in the disjunctive, from the

term “college.” The Majority acknowledges that we are bound to give “or” its

normal disjunctive meaning, Majority Opinion at 9, but nevertheless ignores

and modifies the plain meaning of the words under the guise of interpretation.

Because the provision was written in the disjunctive, if Mother and Father

desired to limit the phrase “other post-secondary education” to “college” or

some other undergraduate-limited term, Paragraph 18 of the Agreement could

have been qualified in any number of ways: limiting it to a four-year term,

providing for its expiration upon the children’s attainment of a certain age,

actually inserting the word “undergraduate” after use of the disjunctive “or,”

or any other myriad limitations.      No limitations were placed on this

ambiguous phrase.

      In his answer to interrogatories, Son explained he “did not earn an

undergraduate degree.       At the time that he had earned sufficient


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undergraduate credits for admission to the pharmacy program, Son enrolled

in Palm Beach Atlantic University,” and he “received a Doctor of Pharmacy

from Palm Beach Atlantic University.”         Father’s Motion for Summary

Judgment, Exhibit 11, Answers, Responses and Objections to Interrogatories,

#1, 12. In exhibits attached to an Affidavit that Son filed in the trial court,

the United States Department of Education explains that the degree required

for a pharmacist, Pharm.D., requires at least two years of preparatory “college

work” prior to entering the program and a total of at least six academic years

of “college work” to complete the degree program.” Response and Brief in

Opposition to [Father’s] Motion for Summary Judgment, 5/16/18, at Exhibit

B, “Structure of the U.S. Education System: First-Professional Degrees.” I

cannot agree that Son’s completion of the prerequisites for his pharmacy

degree, and not the years of study for the degree itself, were Mother’s and

Father’s only obligation under Paragraph 18 of the Agreement as it is written.

Indeed, the terms Son used to describe portions of the pharmacy degree as

undergraduate or graduate are irrelevant, in my view, to whether Son’s six-

year pharmacy degree may be classified as “other post-secondary education.”

      The Majority equates Son’s argument that his pharmacy degree should

be considered “post secondary education,” Son’s Brief at 19, with a contention

that the degree should be considered “his undergraduate studies.” Majority

Opinion at 10.   The nuance of the comparison should not be lost in this

manner. Rather, Son contends that the Agreement’s requirement that his


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parents equally share the reasonable costs of “post-secondary education”

includes his expenses in obtaining his pharmacy degree. Son’s Brief at 19.

Merriam-Webster defines “postsecondary” as “of, relating to, or being

education following secondary school.” Merriam-Webster’s online dictionary

(11th ed.), Merriam-Webster, n.d. Web (May 15, 2018). Pennsylvania law, in

the Public School Code of 1949, utilizes secondary school interchangeably with

high school. 24 P.S. § 16-1613(d). Clearly, the plain language meaning of

“post-secondary education,” as utilized in Paragraph 18 of the Agreement, is

expansive, rather than limiting.

      I also disagree with the Majority’s concurrence with the trial court’s

application of the statute of limitations to bar Son’s contract claim, Majority

Opinion at 2, and the conclusion that “any breach of Paragraph 18 would have

occurred, at the latest, ‘in 2011 when [Son] completed his studies at FSU.’”

Majority Opinion at 15 (citing Memorandum and Order, 7/5/18, at 9). The

trial court determined, and the Majority agrees, that Son’s Petition for Special

Relief to Enforce Marital Settlement Agreement filed April 1, 2016, is barred

by the relevant statute of limitations,2 which was the position advanced by

Father in his Motion for Summary Judgment filed April 26, 2018. My reading

of the applicable law and review of the entire record, instead, compels the

conclusion that the statute of limitations did not begin to run until 2015, when




2 An action upon a contract generally must be commenced within four years.
42 Pa.C.S. § 5525(a)(8).

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J-A05035-19


Son completed his pharmacy degree. Kraisinger v. Kraisinger, 928 A.2d

333, 339 (Pa. Super. 2007) (“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.”) (emphasis added).

      There is no disagreement that the law of contracts governs marital

settlement agreements. Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004);

Kraisinger, 928 A.2d at 339. “Because contract interpretation is a question

of law, this Court is not bound by the trial court’s interpretation.” Kraisinger,

928 A.2d at 339. 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.

      The Majority, while citing and acknowledging Son’s reliance on Crispo

v. Crispo, 909 A.2d 308 (Pa. Super. 2006), and the trial court’s rejection of

it, instead relies upon K.A.R. v. T.G.L., 107 A.3d 770 (Pa. Super. 2014).

Majority Opinion at 15–16.      As the Majority explains, Crispo involved the

parties’ 1995 property settlement agreement that provided, inter alia, that the

wife would defer the husband’s obligation to pay her $22,500 for her interest

in his business, providing the husband did not seek a decrease of the then-

current child support order. If the husband filed a petition to decrease his

court-ordered child support, he would pay the wife $22,500 within thirty days

of his filing of the petition. Crispo, 909 A.2d at 309. In 2004, the wife filed


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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 therefore, the statute of limitations did not

apply. Crispo, 909 A.2d at 312-314 (emphasis added). 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.” Id. at

313. We further determined that the agreement’s provision that the husband

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

specific start date for the first installment.” Id. See also Miller v. Miller,

983 A.2d 736, 743 (Pa. Super. 2006) (The parties’ post nuptial separation

agreement to pay the mortgage, taxes, and insurance on the marital residence

was a continuing contract where the agreement “did not set a specific deadline

by which to make the payments and did not specify specific amounts owed.”).

      Similar to Crispo, where “the parties agreed to assume the payment of

certain credit card balances,” Mother and Father, in this case, agreed to pay

the Children’s “college” or “other post-secondary education.”      Crispo, 909

A.2d at 313; Agreement, 11/10/99, at ¶ 18.            Also, as in Crispo, the

Agreement “included no specific deadline by which those [amounts] would be

paid.” Crispo, 909 A.2d at 313–314.




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      Crispo’s reliance on Fina v. Fina, 737 A.2d 760 (Pa. Super. 1999), is

equally pertinent here. In Fina, the parties entered into a marital settlement

agreement in which the father agreed to be responsible for twenty-five percent

of the cost of the college tuition and expenses of the parties’ minor children

and failed to make those payments for one son. When the mother filed a

petition for special relief nine years later seeking enforcement of the

provision, the trial court found that the father had not breached the agreement

based upon the fact that the mother had not demanded payment of those

expenses. Fina, 737 A.2d at 769. This Court reversed, reasoning that the

fact that the mother had not demanded payment for nine years did not alter

the fact that the husband breached the agreement. Id. at 769. See also

Miller, 983 A.2d 736 (parties’ post-nuptial settlement agreement was a

continuing contract, where the court found that the agreement did not set

a specific deadline by which the husband was to make mortgage payments

and did not identify the specific amounts the husband owed).

      Here, the trial court and the Majority rely upon K.A.R., 107 A.3d 770,

where this Court concluded that the wife’s action to enforce the parties’

equitable distribution agreement was barred by the statute of limitations. We

rejected the claim that the equitable distribution agreement was a continuing

contract where the agreement provided that the wife was to receive “45% of

the initial million dollars . . . from the sale of stock” held by the husband “if

and when it would be sold . . . .” Id. at 776. In the present case, the trial


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court erroneously grafted this “if and when” language onto the instant

Agreement.      Memorandum and Order, 7/5/18, at 7.          Thus, the Majority

correctly concludes that the instant Agreement is a continuing contract, but it

incorrectly applies the statute of limitations. Majority Opinion at 16.

        I conclude that Fina and Crispo, instead, are directly applicable to this

case.    The instant Agreement contains no provision mandating that any

payments from Mother or Father are due at any stated time, and it specifically

lacks any requirement that Mother’s and Father’s obligations are limited to

four years. Paragraph 18 obligates both Mother and Father to pay equally for

their children’s college or other post-secondary education. Here, that includes

the entirety of Son’s Pharm.D. degree.

        For all of these reasons, I dissent and would reverse the grant of

summary judgment in favor of Father.




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