J. A18004/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

SHELLEY A. TUZZATO                         :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                    v.                     :
                                           :
JOSEPH TUZZATO,                            :         No. 1698 MDA 2014
                                           :
                           Appellant       :


               Appeal from the Order Entered September 8, 2014,
                in the Court of Common Pleas of Dauphin County
                        Civil Division at No. 2002 CV 441


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED SEPTEMBER 16, 2015

      Joseph     Tuzzato     (“Husband”)   appeals   from   the   order   entered

September 8, 2014, in the Court of Common Pleas of Dauphin County that

granted Shelley Tuzzato’s (“Wife”) petition to enforce a provision in the

parties’ Marital Settlement Agreement (“MSA”) under which both parties

agreed to pay one-half of their children’s college expenses if they attended a

“state institution.” We affirm.

      On appeal, Husband raises three issues for our consideration:

            1.     WHETHER THE TRIAL COURT COMMITTED A
                   FUNDAMENTAL ERROR OF LAW IN FAILING TO
                   CONCLUDE THAT PARAGRAPH 25 OF THE
                   PARTIES’    SETTLEMENT     AGREEMENT
                   COMPRISED A CLEAR AND UNAMBIGUOUS
                   CONTRACT WHICH THE COURT SHOULD HAVE
                   ENFORCED AS WRITTEN?
J. A18004/15


            2.    WHETHER THE TRIAL COURT COMMITTED A
                  FUNDAMENTAL ERROR OF LAW BY REQUIRING
                  JOSEPH   TO  REIMBURSE    SHELLEY  FOR
                  EXPENSES SHE DID NOT PAY, BUT RATHER
                  WERE PAID FOR ENTIRELY BY THE PROCEEDS
                  OF FUNDS BORROWED BY THE CHILDREN?

            3.    WHETHER THE TRIAL COURT COMMITTED A
                  FUNDAMENTAL ERROR OF LAW BY NOT
                  INTERPRETING PARAGRAPH 25 OF THE
                  PARTIES’ MARITAL SETTLEMENT AGREEMENT
                  TO REQUIRE THE PARENTS TO EACH PAY FIFTY
                  (50) PERCENT OF ANY REMAINING ACCOUNT
                  BALANCE FOR EDUCATIONAL EXPENSES AFTER
                  APPLICATION OF GRANTS, SCHOLARSHIPS,
                  AND LOANS GRANTED TO THE CHILDREN?

Husband’s brief at 4.

      We review an order interpreting an MSA to determine whether the trial

court committed an error of law or abuse of discretion. Tuthill v. Tuthill,

763 A.2d 417, 419 (Pa.Super. 2000) (en banc), appeal denied, 775 A.2d

808 (Pa. 2001).

            We do not usurp the trial court’s fact-finding
            function.    In interpreting a marital settlement
            agreement, contract principles apply.  Thus, the
            following principles are relevant:

                  The    paramount     goal   of    contract
                  interpretation is to ascertain and give
                  effect to the parties’ intent.          To
                  accomplish this goal, each and every
                  part of the contract must be taken into
                  consideration and given effect, if
                  possible, and the intention of the parties
                  must be ascertained from the entire
                  instrument.

            [Laudig v. Laudig, 624 A.2d 651, 653 (Pa.Super.
            1993)].


                                    -2-
J. A18004/15



Id. (some internal citations and quotation marks omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Jeannine

Turgeon, we determine there is no merit to the issues Husband raises on

appeal.   The trial court opinion comprehensively discusses and properly

disposes of the issues presented. (See trial court opinion, 12/18/14 at 4-6.)

Accordingly, we affirm on the basis of that opinion.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/16/2015




                                     -3-
                      Circulated 08/19/2015 01:13 PM




         APPENDIX A
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I
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                  (                                    Circulated 08/19/2015 01:13 PM




SHELLEY TUZZATO                     IN THE COURT OF COMMON PLEAS.,
   . v.                                                                            =
JOSEPH TUZZATO
                                    DAUPHIN COUNTY, PENNSYLVANIA-=-
                                                           c:   rq
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                                    NO. 2002 CV 441 ·    -o ::J -o
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                                                                                   w
                                                                                                ·t··.




                         ORDER OF COURT


           AND NOW, this 8th day of September, 2014, the
Petition for Enforcement of Marital Settlement Agreement is
granted.   Based upon Section 25 of the parties' Marriage
Settlement Agreement, Defendant/Respondent shall reimburse
Plaintiff/Petitioner and shall pay in the future directly to
Plaintiff/Petitioner upon receipt of valid invoices 50
percent of their children's post secondary education
expenses at a college or university at a state institution
or what I believe is also considered in.that state related
universities including Pitt, Lincoln, Temple, and Penn State
for the children's tuition, room and board, books, student
fees and activity fees less any non-reimbursable grants they
may receive and less the 75 percent tuition_
discount/educational   privilege provided by
Plaintiff/Petitioner pursuant to her employment at Penn
State Milton Hershey M~di-cal Center.
           Attorney's fees .are not awarded to
Plaintiff/Petitioner based upon the argument which I find
was a valid issue to be presented to the Court as to the
definition of state institution.
           Rei mburseme.nt shall be in an amount as agreed to
by the parties, following a post hearing conference today
                     (                                                           (                                  Circulated 08/19/2015 01:13 PM




                                                ..
and.submission       to Respondent/Defendant               of the children's
additional       expenses including      books and activity                                           fees which.
may or may not be on the exhibits            presented                           to the Court
today.
                                      BY THE COURT:




                                                                             I       JUDGE


Distribution:
Susan Kadel ,i.. Esq., PO Box 650, Hershey · PA .17033
Douglas P. r rance , Esq .. , 2675 Eastern Blvd, York,                                                    PA 17 402




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APPENDIX B .·
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                  201~ DEC 18 PH 2: 5i.
SHELLEY TUZZAEreUPHIH COUNTY                                               : TN THE COURT OF COMMON PLEAS
         .   Plai~tf£f HNA                                                 : DAUPHIN COUNTY, PENNSYLVANIA

             v.                                                            : NO. 2002 CV 441 DV

JOSEPH TUZZATO,                                                            : DIVORCE - Petition to Enforce
             Defendant                                                     : Marital Settlement Agreement (Appeal)


                                                                        OPINION

        Before the Court is Defendant Joseph Tuzzatc's appeal from this Court's Order of
September 8, 2014, which granted Plaintiff Shelley Tuzzato's petition to enforce a provision in
the parties' Marital Settlement Agreement under which both parties agreed to pay one-half of
their children's college expenses if they attended "a state institution." This opinion is written in
support of the order, pursuant to Pa.R.A.P. 1925(a).


                                                                        Background
        The parties were married in 1992 and divorced in May 2003. They have three children,
currently ages 21, 18 and 16. On February 11, 2003, they entered into a Marital Settlement
Agreement (MSA). Paragraph 25 of the MSA requires that each party equally share the cost of
the children's college expenses, as follows:


                                                    , 25 POST-SECONDARY EXPENSES
             Each party shall pay fifty percent (50%) of the children's post-secondary
          education expense. "Post-secondary education" is defined as a trade school or a
          four-year college program ending in receipt of a baccalaureate degree at a state
          institution, such as Shippensburg, and not a private school. "Educational expenses"
          is defined as: tuition; room; board; student fees; and activity fees.1

(Plaintiffs Exbt. 1)




I
  Parents are not legally required to provide postsecondary education support to their adult children.
Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995). However, parents may nevertheless voluntarily enter
into a contractual arrangement to provide such support.
                                                                                       Circulated 08/19/2015 01:13 PM




            On June 26, 2014, Plaintiff filed a petition to enforce the terms of this provision arguing
    that Defendant was in breach thereof whereby he had failed to pay one-half of the educational
    expenses for the two oldest children. As of the Fall 2014 semester, both children were enrolled at
    Penn State University's main campus in State College. Plaintiff, at all relevant times, has been
    employed by Penn State Hershey Medical Center and as such, her children are entitled to a 75%
    discount on their Penn State tuition.


           Defendant responded to Plaintiffs petition to enforce arguing he was not required to pay
    any of the children's educational expenses since Penn State was not a "state institution." Instead,
    he claimed that Penn State was a private institution and that the only institutions encompassed
    within the meaning of Paragraph 25 included schools that were members of the Pennsylvania
    State System of Higher Education (PASS HE), like Shippensburg.' I held a hearing September 8,
    2014. Defendant objected at the hearing to the admission of any evidence as to the parties' intent
concerning Paragraph 25, claiming that the language was unambiguous and clearly excluded
Penn State as an institution for which he would be required to pay educational expenses. (N.T.
    12-13) I denied his request and permitted the admission ofparol evidence.


           Atthe conclusion of the hearing, I entered an order holding that Defendant was obligated
to pay one-half of the children's Penn State educational expenses. I found that Penn State, as a
state-related entity, qualified as a "state institution" as intended by the parties under Paragraph
25. With regard to the amount of the obligation, I held that each party owed one-half of all
tuition, room and board, books, student fees, and activity fees after the deduction of grants the
children received as well as a deduction for the 75% tuition discounts to which they were
entitled. I did not deduct from the amount owed by the parties any student loans taken out by the
children. Defendant filed a timely appeal from my decision, currently pending.




2
 There are fourteen schools within the State System of Higher Education are Bloomsburg, California,
Cheyney, Clarion, East Stroudsburg, Edinboro, Indiana, Kutztown, Lock Haven, Mansfield, Millersville,
Shippensburg, Slippery Rock and West Chester. (Defendant's Exbt. 2)
                                                    2
                                                                                     Circulated 08/19/2015 01:13 PM




                                         Legal Discussion

        In his statement of errors complained of on appeal, Defendant raises numerous issues,
distilled to the following: (1) the trial court erred by finding that Penn State was a "state
institution"; (2) the court erred by finding Paragraph 25 to be ambiguous and thereby permitting
Plaintiff to presentparol evidence; and (3) assuming the court properly found that Defendant was
obligated to pay educational expenses under Paragraph 25, the court erred by ordering Defendant
to pay any portion of expenses from which the children's loan monies were not deducted.


        "A [marital] 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) (citation omitted). As a contract, the parties' agreement is subject to the following
principles:


           The paramount goal of contract interpretation is to ascertain and give effect to the
         parties' intent. To accomplish this goal, each and every part of the contract must be
         taken into consideration and given effect, if possible, and the intention of the parties
         must be ascertained from the entire instrument.

Tuthill v. Tuthill, 763 A.2d 417, 419 (2000) (quoting Laudig v. Laudig, 624 A.2d 651, 653 (Pa.
Super. 1993)).

            The intent of the parties to a written contract is contained in the writing itself.
         When the words of a contract are clear and unambiguous, the parties' intent is to be
         found only in the express language of the agreement. The court must construe a
         contract as written and may not modify the plain meaning of the contract under the
         guise of interpretation. Where the contract terms are ambiguous, however, the court
         is free to receive extrinsic [ or parol] evidence to resolve the ambiguity.

           A contract will be found to be ambiguous only if it is fairly susceptible of
         different con'structions and capable of being understood in more than one sense. It is
         the function of the court to decide, as a matter of law, whether the contract terms
         are clear or ambiguous. The fact that the parties have different interpretations of a
         contract does not render the contract ambiguous.

Id. at 420 ( citations omitted).




                                                  3
                                                                                    Circulated 08/19/2015 01:13 PM




        "If left undefined, the words of a contract are to be given their ordinary meaning." Kripp
v. Kripp. 849 A.2d 1159, 1163 (Pa. 2004) (citation omitted). As a general rule, agreements will
be construed against the drafter when the terms are ambiguous. Gallagher v~ Fidelcor, Inc., 657
A.2d 31, 34 (Pa. Super. 1995) (citation omitted). The MSA here was drafted by Defendant's
prior attorney and thus, to the extent it is ambiguous, is construed against Defendant.3 (N. T. 19)

        In his first two issues raised on appeal, Defendant argues that the meaning of "state
institution" is clear and unambiguous · in that it encompasses only those schools within the
PASSHE, excluding non-state institutions like Penn State, and that as such, the court erred by
finding the term ambiguous and allowing presentation of extrinsic, or parol evidence; I-disagreed
that the language in Paragraph 25 could only be interpreted as requiring the parties to pay
educational expenses incurred solely at PASSHE schools. Nothing in the plain language of
Paragraph 25 limits the meaning of "state institutions" solely to PAS SHE schools. Instead, the
language is "fairly susceptible of different constructions and capable of being understood in
more than one sense." Tuthill, supra. "State institution" can be fairly interpreted to include
Pennsylvania's "state-related" institutions, which includes Penn State. (N.T. 33) See, Roy v. The·
Pennsylvania State University, 568 A.2d 751, 752 n. 3 (Pa. Commw. 1990) (noting there are four
state-related schools in Pennsylvania, including Penn State, Pitt, Lincoln and Temple); see also,
Bagwell 'v. Pennsylvania Dep1t of Educ .• 76 A.3d 81, 87 (Pa. Comrnw. 2013) (PSU is both a
state-related institution and an instrumentality of the Commonwealth). This court believes that,
to many if not most Pennsylvanians, a plain and ordinary meaning of the term "state institution"
clearly includes Penn State. Kripp, supra.

       Having determined that Paragraph 25 of the MSA is ambiguous as to the meaning of
"state institution," this court was free to receive extrinsic evidence to resolve the ambiguity.
(N.T. 17) Plaintiff credibly testified that she has always believed that Penn State was a "state
intuition" as used in Paragraph 25. (N.T. 18) Notably, at the time parties executed the MSA in
2003, Plaintiff was an employee of Penn State Hershey Medical Center. One of the employee


3
 Both partieswere representedby counselin executingtheir MaritalSettlement Agreement. (Petitionto
Enforce,r 6)

                                                 4
                                                                                       Circulated 08/19/2015 01:13 PM




benefits available to her then was that her children could attend Penn State at a discounted
tuition. (N.T. 19) She thus assumed that her attorney, Defendant and his attorney, who drafted
                                                                                        -
the MSA, were all aware 'of her work situation and the availability for her children of a tuition
discount and thus, she believed the MSA was written with the understanding that Penn State was
an institution under the state system. (N. T. 20)


         It is- notable as well that Defendant admitted that when the parties' second child was
looking at colleges during the summer of 2013, he took her to visit Penn State; he did not take
her to Shippensburg nor to any of the other thirteen PASSHE schools. (N.T 31-32) Defendant
also testified that when the parties' oldest child commenced his first year of college at Penn State
Harrisburg in 2012, Plaintiff asked Defendant pay his share of the expenses. Defendant admitted
that he told Plaintiff he would not pay any expenses because he did not have enough money
since he was paying for the tuition of the two younger children to attend parochial schools; he
did not cite as the reason for his failure to pay that he did not consider Penn State a "state
institution." (N.T. 29-30)


         Based upon this extrinsic evidence, I held that the parties understood and intended the
term "state institution" under Paragraph 25 to include post-secondary institutions such as Penn
State.   As such, I directed that Defendant pay his equal share for all educational expenses
incurred by the children while attending Penn State including those defined under Paragraph 25:
tuition, room and board, and student and activity fees.4


         Defendant's final argument is that he should not be required to reimburse Plaintiff for the
loans that the children took out to defray educational expenses they incurred. Plaintiff testified
that as of the hearing, the children had taken out loans totaling $14,000 to meet their expenses.
(N.~.8; Plaintiff's Exbt. 4) As recited above, Paragraph 25 states that "[e]ach party shall pay fifty
percent of the children's post-secondary educational expense." "Educational expense" is further
defined as "tuition; room; board; student fees; and activity fees." Under these terms, so long as
the children incur expenses for tuition, room and board, and fees, the parties are each

4
  Ironically, given the steep tuition discounts available to the children at Penn State by attending Penn
State, Defendant may actually owe less   for  their expenses at Penn State than if the children attended
Shippensburg. (See N.T. 5-9, 16; Plaintiff Exbt. 7)                   .

                                                    5
                                                                                   Circulated 08/19/2015 01:13 PM




contractually obligated to pay one-half of these expenses. There is no language in Paragraph 25
whatsoever suggesting that the children fund their own education, by loan or otherwise. The
clear intent of Paragraph 25 is that the parties agreed to be entirely responsible for their
children's actual post-secondary educational expenses so long as the children were matriculating
at a state institution. The terms of the MSA in this regard are not ambiguous. Since Defendant
does not dispute the ~ount of loans taken out by the children, or that the amount taken out was
used to pay for educational expenses as defined under Paragraph 25, he is obligated to pay his
one-half share of the expenses for which his children were required to obtain loans to pay.


       Accordingly,   I issued my decision September 8, 2014, from which Defendant has
appealed.




       December 18, 2014
             Date



Distribution:
Douglas France, Esq., 2675 Eastern Blvd., York Pa. 17402 (for Defendant)
Susan Kadel, Esq., P.O.B. 650, Hershey Pa'. 17033 (for Plaintiff)




                                                6
                                                                             Circulated 08/19/2015 01:13 PM




                         IN THE SUPERIORCOURT OF PENNSYLVANIA
                                     MIDDLE DISTRICT

                   SHELLEY A. TUZZATO,
                              Appellee

                                vs.                        No. 1698 M.D.A. 2014

                   JOSEPH TUZZATO,
                             Appellant


                                      PROOF OF SERVICE


             I hereby certify that I am this 2Dfhday of February, 2014, serving the Brief of
      Appellant under the Pennsylvania Rules of Appellate Procedure 121, by first class, U.S.
      Mail, addressed as follows:


                                    Office of the Prothonotary
                                The Superior Court of Pennsylvania
                                   601 Commonwealth Avenue
                                             Suite 1600
                                    Harrisburg, PA 17106-2435

                                               AND

                                       Susan M. Kadel, Esq.
                                        Law Offices JSDC
                                           PO Box 650
                                        Hershey, PA 17033
II·
                                              Respectfully Submitted:




                                               Douglas P. Fr      , squire
                                               Attorney o. P/(4a744
                                               2675 Eastern Blvd .
                                           ..: York, PA 17402-2905
                                               Phone: (717) 757'."4565
                                                                               Circulated 08/19/2015 01:13 PM




                                                                                  R~        In Superfor Court


                        IN THE SUPERIOR COURT OF PENNSYLVANIA                         FEB 2 0 2015
                                  HARRISBURG DISTRICT
                                                                                         MIDDIJ:
· SHELLEY A. TUZZATO,
                                   Appellee

                vs.                                              No. 1698M.D.A.2014

JOSEPH TUZZATO
                                   Appellant


                                                     AVERMENT

COMMONWEALTH OF PENNSYLVANIA
                                                           ss:
COUNTY OF YORK


      Douglas P. France, Esquire, being duly sworn, deposes and says that the
material on the enclosed CD is an accurate and complete representation of the paper
version of the Brief and Reproduction of Records of Appellant, Joseph Tuzzato, filed.in
the above-captioned case.

       SIGNED, SEALED AND DELIVERED this 19th day of February, 2015.                                            . i
                                                                                                                  .




Sworn and subscribed to
before me this 19th day-
of February,2015     ~                       .   .

~A;,L                                Af~
       Notary Public


   COMMONWEALTH       OF PENNSYLVANIA
             NOTARIAL SEAL
      Leona C. Larkin, Notary Public
  Spring~ttsbury Township, York County
  My Commission Expires September 01. 2015
