J-E03001-15

                                2016 PA Super 24



AMY HUSS,                                      IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellant

                      v.

JAMES P. WEAVER,

                           Appellee                No. 1703 WDA 2013


            Appeal from the Order Entered September 25, 2013
            In the Court of Common Pleas of Washington County
                     Civil Division at No(s): 2013-1209


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
        SHOGAN, J., LAZARUS, J., OTT, J., STABILE, J., and JENKINS, J.

OPINION BY BENDER, P.J.E.:                     FILED FEBRUARY 05, 2016

     Amy Huss (“Huss”) appeals from the September 25, 2013 order

sustaining preliminary objections filed by James P. Weaver (“Weaver”) in

response to Huss’ contract action against Weaver.     For the reasons that

follow, we reverse.

     In October 2008, Huss and Weaver, who were involved in a romantic

relationship, entered into a contract (“Agreement”) in which they agreed

that if their relationship resulted in the birth of a child, Huss would have

primary physical custody and Weaver would have specified visitation rights,

and that if Weaver sought court modification of these terms he would pay

Huss $10,000 for each such attempt.      The parties had a son in November

2010 and Weaver filed a complaint for custody in December 2010.        Huss
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then filed a complaint alleging that Weaver had failed to abide by his

contractual promise to make the required $10,000 payments.

      Specifically, Huss filed her initial complaint on March 7, 2013, alleging

a single count for breach of contract.         In response to the preliminary

objections filed by Weaver, on April 19, 2013, Huss filed an amended

complaint, adding causes of action for negligent misrepresentation and

fraud. On May 7, 2013, Weaver filed preliminary objections in the nature of

demurrers    to   the   amended   complaint,    asserting   that   the   $10,000

modification provision of the Agreement violated public policy and that the

negligent misrepresentation and fraud causes of action were barred by the

economic loss doctrine. On September 25, 2013, the trial court entered the

order now on appeal and an accompanying opinion, sustaining Weaver’s

preliminary objections and dismissing Huss’ amended complaint with

prejudice.

      In her amended complaint, Huss alleged that the parties entered into

the Agreement on October 17, 2008, that at that time Weaver was a

practicing attorney with the law firm of Buchanan Ingersoll & Rooney in

Pittsburgh, and that he had provided Huss with “legal representation in

various legal matters.”    Amended Complaint, 4/19/13, at ¶¶ 3-6.          Huss

further alleged that Weaver, along with a colleague at the Buchanan

Ingersoll & Rooney law firm, drafted the Agreement.          Id. at ¶ 5.    The

relevant provisions of the Agreement state as follows:




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     WHEREAS, currently [Huss] is a real estate agent capable of
     earning large commissions if she works excessive hours and
     [Weaver] is an attorney capable of earning a large salary; and

     WHEREAS, in the event that [Huss] has a child or children of
     [Weaver] and the parties’ relationship is ended by either party,
     whether or not the parties are married at the time of the
     termination of the relationship, the parties desire to set forth
     their agreement as to the custody of such child or children.

     NOW THEREFORE the parties for and in consideration of the
     covenants contained in the Agreement, and intending to be
     legally bound thereby, agree as follows:

     1. Custody. In the event that either [Weaver] or [Huss]
     terminates the relationship with the other, whether or not they
     are married at the time of such termination, the legal custody of
     any child by this Agreement shall be shared by [Weaver] and
     [Huss] shall have primary physical custody of such children. In
     the event such termination of the relationship occurs, [Weaver]
     agrees that he will not pursue full physical custody of any child
     by this agreement and further agrees that he will not attempt to
     use the fact that [Huss] must work excessive hours selling real
     estate in order to earn large commissions to pursue custody of
     such child or children.

     2. Visitation. In the event that either [Weaver] or [Huss]
     terminates the relationship with the other, whether they are
     married at the time of such termination, [Weaver] shall be
     entitled to unsupervised visitation with any child by this
     Agreement as follows:

          a. So long as the parties reside within 50 miles of one
          another, [Weaver] shall be entitled to every other weekend
          beginning a 7 p.m. Friday evening and ending 4 p.m.
          Sunday evening. [Weaver] agrees to be responsible for
          transportation.

          b. In the event that the parties reside more than 50 miles
          from one another, [Weaver] shall be entitled to one month
          during the summer as agreed to by the parties.

          c. [Huss] has the right to relocate out of state if she
          desires.

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      3.Support. [Weaver] agrees that, regardless of any custody
      arrangement between the parties, [Weaver] waives any rights to
      pursue [Huss] for child support for any child. [Weaver] further
      agrees to pay [Huss] child support for any child or children to be
      agreed upon by the parties or determined by Domestic Relations.

      4. Modification of Agreement. This Agreement may only be
      modified or amended by the parties by a written instrument
      signed by both [Weaver] and [Huss]. The parties acknowledge
      that this Agreement may be modified or superseded by a court
      of competent jurisdiction. In the event that [Weaver] files a
      complaint, motion, petition or similar pleading seeking the
      modification or amendment of the custody and/or
      visitation provisions set forth herein, [Weaver] agrees to
      pay [Huss] $10,000 for each modification or amendment
      sought.

      5. Voluntary Agreement. Each party understands that in the
      absence of this Agreement, as a matter of law, that he or she
      might be entitled to a greater level of custody or more visitation
      than is provided herein. Both parties acknowledge that they
      have read this Agreement carefully and thoroughly, and each
      considers the provisions of this Agreement to be fair, just and
      reasonable, and that they fully understand each of its provisions
      and are executing the same freely and voluntarily, without
      coercion or other compulsion.

Id. at ¶ 3 (Exhibit A) (emphasis added).

      Huss also alleged in her amended complaint that Weaver had breached

the highlighted portion of paragraph 4 of the Agreement.     She noted that,

since the birth of their son, the parties have been “embroiled in litigation”

regarding custody and visitation issues, that Weaver filed numerous

“complaints, motions, petitions, and/or similar pleadings,” and that he failed

and refused to pay her $10,000 for each such filing. Id. at ¶¶ 9-12. Finally,

Huss contended that Weaver, as her legal advisor, either negligently or


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intentionally   misrepresented    to   her   that   she   should   enter   into   the

Agreement, which “she in fact did not wish to enter,” and that he never

indicated to her that he believed any of its provisions to be against public

policy. Id. at ¶¶ 14-19, 28-32.

      The trial court dismissed Huss’ complaint, ruling that the provision for

the $10,000 payments was void as against public policy.              In its written

opinion in support of its sustaining of Weaver’s preliminary objections, the

trial court first cited cases holding that parents may not bargain away their

child’s right to receive child support.      Trial Court Opinion, 9/25/13, at 2

(citing Knorr v. Knorr, 588 A.2d 503, 505 (Pa. 1991)). The trial court then

noted that custody agreements between parents are subject to court

modification in the best interests of the child.          Id. (citing Mumma v.

Mumma, 550 A.2d 1341, 1343 (Pa. Super. 1988)). Based on these tenets,

the trial court reasoned as follows:

            Imposing a fee upon [Weaver] to pay $10,000 if he
            decides to file a modification of child custody is
            against the public policy of assuring continuing
            contact between child and parent. It substantially
            impairs the Court’s power and the Commonwealth’s
            duty to determine what is in a child’s best interest.
            “Our paramount concern in child custody matters is
            the best interests of the children.” Yates v. Yates,
            963 A.2d 535, 539 (Pa. Super. 2008). It is against
            public policy to impose a fee on one party in order to
            determine the best interests of the child.




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Id. at 2-3.1

       Huss filed a notice of appeal and the case was assigned to a three-

judge panel of this Court. Following the panel’s review, it determined that

the trial court’s ruling with respect to the $10,000 clause was in error, i.e.,

the Agreement was not unenforceable as against public policy.       Thus, the

trial court’s sustaining of Weaver’s preliminary objections was overturned.

See Huss v. Weaver, 2014 PA Super 238 (Pa. Super. filed October 21,

2014).    Weaver then filed a timely application for reargument before the

court en banc, which was granted by per curiam order, dated December 12,

2014. Thus, the panel decision was withdrawn on December 12, 2014.

       Following the submission of briefs for the en banc argument, Huss filed

an application to strike Weaver’s substituted brief, averring that it violated

various rules of appellate procedure, because it included a recitation of

numerous facts that were not a part of the record on appeal.               The

application to strike was deferred to this en banc merits panel for resolution.

See Superior Court Orders, 2/4/15, 8/24/15. Although we recognize, and
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1
   The trial court also indicated that the provision in paragraph 3 of the
Agreement preventing Weaver from filing for child support from Huss if he is
ever awarded custody violates public policy. Id. at 2. In her present action,
however, Huss is not attempting to enforce this provision and thus its
enforceability is not at issue here. Moreover, its enforceability should have
no effect on the issues currently ripe for resolution, since the Agreement
contains a severability clause providing that if any of its provisions are
determined to conflict with Pennsylvania law, “the remaining terms of this
Agreement shall remain in full force and effect.” Amended Complaint,
4/19/13, at ¶ 3 (Exhibit A, ¶ 7).



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Weaver acknowledges, that some of the facts he references in his brief are

not of record, we will not strike his brief. Rather, because our standard of

review limits what we may consider in reaching our decision here, we are

able to address Huss’ issues without consideration of any facts not contained

in the complaint and the attached Agreement. See Martin v. Rite Aid of

Pennsylvania, 80 A.3d 813 (Pa. Super. 2013).

      Huss raises the following issues for our review:

      1.  Did the lower court err in concluding that the parties’
      Agreement was not enforceable as a matter of public policy?

      2. Whether [Weaver, an attorney] who drafted a contract should
      be estopped from asserting the contract is unenforceable when
      he advised [Huss] the contract was legal and enforceable?

Huss’ Brief at 3.

      Before addressing Huss’ issues, we note that we are guided by the

following:

      In reviewing a trial court’s grant of preliminary objections, the
      standard of review is de novo and the scope of review is plenary.
      The salient facts are derived solely from the complaint and
      pursuant to that standard of review, the court accepts all well-
      pleaded material facts in the complaint, and all inferences
      reasonably deduced therefrom must be accepted as true.

Martin, 80 A.3d at 814 (quoting Keller v. Scranton City Treasurer, 29

A.3d 436, 443 n.12 (Pa. Cmwlth. 2011) (internal citations omitted)).

      Huss’ first issue on appeal requires us to determine whether the above

highlighted “$10,000 clause” is unenforceable as against public policy.   In

Ferguson v. McKiernan, 940 A.2d 1236 (Pa. 2007), our Supreme Court


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instructed us on the proper legal standards to apply when deciding such

issues:

     In assessing whether a contractual agreement violates public
     policy

          this Court is mindful that public policy is more than a
          vague goal which may be used to circumvent the plain
          meaning of the contract. Hall v. Amica Mut. Ins. Co.,
          538 Pa. 337, 347, 648 A.2d 755, 760 (1994) [....]

              Public policy is to be ascertained by reference
              to the laws and legal precedents and not from
              general considerations of supposed public
              interest. As the term ‘public policy’ is vague,
              there must be found definite indications in the
              law of the sovereignty to justify the
              invalidation of a contract as contrary to that
              policy.... Only dominant public policy would
              justify such action. In the absence of a plain
              indication of that policy through long
              governmental        practice    or     statutory
              enactments, or of violations of obvious ethical
              or moral standards, the Court should not
              assume to declare contracts ... contrary to
              public policy. The courts must be content to
              await legislative action.

          Id. at 347–48, 648 A.2d at 760 (citations omitted). This
          Court has further elaborated that:

              It is only when a given policy is so obviously
              for or against the public health, safety, morals
              or welfare that there is a virtual unanimity of
              opinion in regard to it, that a court may
              constitute itself the voice of the community in
              so declaring [that the contract is against public
              policy].

          Mamlin v. Genoe, 340 Pa. 320, 325, 17 A.2d 407, 409
          (1941).

Ferguson, 940 A.2d at 1245 n.16 (quoting Eichelman v. N'wide Ins. Co.,

711 A.2d 1006, 1008 (Pa. 1998)).

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      Contrary to the decision reached by the trial court, we have not

identified any “dominant public policy” grounded in governmental practice,

statutory enactments, or violations of obvious ethical or moral standards,

which provides a basis for declaring the “$10,000 clause” in the Agreement

to be unenforceable as against public policy.    The trial court grounded its

analysis on Knorr, in which our Supreme Court held that parents have no

power to “bargain away the rights of their children,” and that if an

agreement between parents for child support provides “less than required or

less than can be given,” courts may ignore the agreement and require a

satisfactory level of support.   Knorr, 588 A.2d at 505.       Subsequent to

Knorr, this Court has routinely held that a child’s right to adequate support

payments cannot be bargained away and that any release or compromise on

child support obligations is invalid if it prejudices the child’s welfare. See,

e.g., Sams v. Sams, 808 A.2d 206, 211 (Pa. Super. 2002); Ruth F. v.

Robert B., 690 A.2d 1171, 1172 (Pa. Super. 1997); Hyde v. Hyde, 618

A.2d 406, 408 (Pa. Super. 1992).

      However, no similar appellate authority exists with respect to

agreements between parents regarding custody and visitation.             While

custody and visitation agreements are always subject to modification by the

courts in the best interests of the child, Mumma, 550 A.2d at 1343, we are

unaware of any cases in which Pennsylvania courts have declared such

contracts to be unenforceable as against public policy. The reason for this


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distinction would appear to be obvious, since the right to child support

belongs to the child, and thus cannot be “bargained away” by the parents.

See Kesler v. Weniger, 744 A.2d 794, 796 (Pa. Super. 2000) (“[T]he right

to support is a right of the child, not the mother or father….”). Accordingly,

when the parents agree among themselves to provide an inadequate level of

child support, the child’s rights have been violated and thus the agreement

may be declared void as against public policy. See, e.g., Sams, 808 A.2d

at 213 (“[T]he agreement [is] invalid on public policy grounds, because

Mother had no power to bargain away her children’s right to support by

reducing       Father’s   obligation    from    $3,400/month    support    to

$1,000/month.”).

      Rights to custody and visitation, on the other hand, belong to the

parents (or guardians). 23 Pa.C.S. § 5322; Pa.R.C.P. 1915.1(b). Because

children are not mere chattel, agreements regarding custody and visitation

are always subject to court review and adjustment in the best interests of

the child.     Mumma, 550 A.2d at 1343; Com. ex rel. Veihdeffer v.

Veihdeffer, 344 A.2d 613, 614 (Pa. Super. 1975) (“A child cannot be made

the subject of a contract with the same force and effect as if it were a mere

chattel….”).    In no way, however, do custody and visitation agreements

involve the bargaining away of the rights of the children, and accordingly

they are not unenforceable as against public policy on the same basis as are

agreements regarding child support.        See generally Lee v. Child Care


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Service Delaware County, 337 A.2d 586, 590 (Pa. 1975) (“Pennsylvania

precedents merely provide that contracts for custody of children will not

foreclose a court from making a contrary disposition in the best interests of

the child. This doctrine does not support appellants’ claim that ‘placement

agreements’ are void as against public policy.”).

      The trial court nevertheless concluded that the “$10,000 clause” is

unenforceable as against public policy because it “substantially impairs the

Court’s power and the Commonwealth’s duty to determine what is in a

child’s best interests.” Trial Court Opinion, 9/25/13, at 2-3. To this end, in

its written opinion, the trial court refers to the “10,000 clause” as a “fee,” an

“impediment,” an “impairment,” and would have a “chilling effect” on the

filing of custody complaints or modification petitions. Id. at 2-5. In support

of this position, in his appellate brief Weaver cites this Court’s decision in

Kraisinger v. Kraisinger, 928 A.2d 333 (Pa. Super. 2007), a case in which

we struck down as invalid a provision in a child support agreement requiring

the mother to pay the father’s legal fees if she challenged the amount of

child support set forth in their agreement.         Id. at 345.        The parties’

agreement specifically provided that the attorneys’ fees provision was

included to “discourage frivolous filings.”    Id. at 337.    In accord with the

rationale   employed   in   the   above-discussed   child    support    cases,   we

concluded that “[w]e cannot tolerate a provision which penalizes a parent for

pursuing her children’s rights.” Id. at 345.


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     The issue of whether a provision in a custody/visitation contract that

places a serious impediment on either party’s ability to seek court

modification in the best interests of the child is not presently before this

Court. No language in the Agreement at issue here provides either that the

“$10,000 clause” is intended to discourage Weaver from seeking court

intervention, or evidences that the payment would act as an impediment to

his ability to do so.    Whether the “$10,000 clause” would act as an

impediment would depend, first and foremost, upon Weaver’s financial

ability to pay it. In the Agreement, however, Weaver plainly acknowledged

that he “is an attorney capable of earning a large salary.”        Amended

Complaint, 4/19/13, (Exhibit A). He also straightforwardly recognized that

all of the terms of the Agreement (including the “$10,000 clause” in the

immediately preceding paragraph) are “fair, just and reasonable.” Id. at ¶

5. Finally, Weaver agreed that he fully understood each of the Agreement’s

provisions and executed it “freely and voluntarily, without coercion or other

compulsion.” Id.

     As set forth above, our standard of review in this circumstance

provides that the salient facts must be derived solely from Huss’ amended

complaint (including the attached Agreement), and that we must treat all

well-pleaded material facts in the amended complaint, and all inferences

reasonably deduced therefrom, as true. Martin, 80 A.3d at 814. No facts

of record support a finding that the “$10,000 clause” constituted an


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impediment to Weaver’s ability to seek court modification of any of the

terms of the Agreement.

      Huss contends that the “$10,000 clause” was intended as a “defense

fund” in the event of litigation regarding the Agreement. Huss’ Brief at 12.

While we agree with the trial court that the Agreement contains no specific

language to support this suggestion, we cannot also agree that the parol

evidence rule would bar her from testifying about her understanding of the

parties’ intentions with respect to this payment.     See, e.g., Steuart v.

McChesney, 444 A.2d 659, 663 (Pa. 1982) (explaining that parol evidence

is admissible to explain, clarify, and resolve ambiguities).    Whether the

parties intended to provide Huss with a “defense fund” to assist with the cost

of any future litigation may depend upon the parties’ relative abilities to

afford the expense of any such future litigation.    In this regard, the first

“WHEREAS” clause in the Agreement is ambiguous, as it leaves their relative

financial capabilities unclear. Weaver is described as an attorney “capable of

earning a large salary,” while Huss is a real estate agent “capable of earning

large commissions if she works excessive hours.” Amended Complaint,

4/19/13, (Exhibit A) (emphasis added). Without parol evidence, we cannot

ascertain whether this provision intended to convey that the parties have

approximately the same capabilities to earn large salaries/commissions, or

alternatively if Weaver is best able to earn more money (since he apparently

can do so without working excessive hours, which arguably would be difficult


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for Huss to do after the birth of their child).2 In short, whether the parties

recognized Weaver’s superior ability to finance the cost of future litigation,

and thus provided for a “defense fund” in the Agreement, is not clear.

       For these reasons, we conclude that the trial court erred in ruling that

the “$10,000 clause” in the Agreement is unenforceable as against public

policy.    The record does not reflect that this provision constitutes any

limitation on Weaver’s ability to seek court intervention to modify the

custody and/or visitation provisions in the Agreement between these parties

in the best interests of the child.

       The trial court dismissed Huss’ claims for negligent misrepresentation

and fraud because she “cannot point to any real damages.”            Trial Court

Opinion, 9/25/13, at 5.         However, based upon our ruling here that the

“$10,000 clause” is not unenforceable as against public policy, damages for

Weaver’s breach of this provision may be available to Huss.         As a result,

dismissal of these causes of action on demurrers was also error.3

       Order reversed. Case remanded. Jurisdiction relinquished.

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2
   In her amended complaint, Huss alleges that Weaver drafted the
Agreement. Amended Complaint, 4/19/13, at ¶ 5. Ordinary principles of
contract interpretation provide that ambiguities are to be construed against
the drafter, Insurance Adjustment Bureau, Inc. v. Allstate Ins. Co.,
905 A.2d 462, 468 (Pa. 2006), further strengthening Huss’ contention that
the “$10,000 clause” was intended as a defense fund.
3
  In light of our disposition of Huss’ first issue on appeal, it is not necessary
to address her second issue.



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      President Judge Gantman and Judges Panella, Lazarus, Ott and Stabile

join this opinion.

      Judge Bowes files a concurring opinion in which Judges Shogan,

Lazarus and Stabile join.

      Judge Shogan concurs in the result of the majority opinion

      Judge Jenkins files a dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2016




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