J-S04027-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARY ANN FERRIS, NOW MARY ANN 

PETRI,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

RALPH A. FERRIS,

Appellee No. 514 WDA 2015

Appeal from the Order Entered March 2, 2015

In the Court of Common Pleas of Erie County

Civil Division at No(s): 12741-2004

BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.: FILED MARCH 1, 2016

Appellant, Mary Ann Ferris (now Mary Ann Petri), appeals from an 

order entered on March 2, 2015 that denied her motion to declare and 

impose a constructive trust on undisclosed assets of Ralph A. Ferris 

(Husband). We vacate and remand.

The trial court summarized the facts of this case as follows:

The parties were married on June 18, 1994 and divorced on 

December 30, 2004. The [d]ivorce [d]ecree incorporated a 

[m]arriage [s]ettlement [a]greement dated December 17, 2004 

which provided for, among other things, distribution of marital 

property in the form of retirement accounts. Marriage 

Settlement Agreement, Article VII, paragraph D, Retirement 

Funds.

Before the parties married, and for a period of time during the 

marriage, Husband worked at Van Air Systems, Inc. Motion 

Hearing Transcript, 3/2/15, at 15. He was eligible for a pension 

by virtue of that employment. Sometime in 2012, well after the 

[parties’] divorce was final, Husband collected a lump sum 
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distribution of the pension in the amount of $16,000.00. Motion 

Hearing Transcript, 3/2/15, at 12.

It is undisputed the existence of the pension was not listed in the 

[m]arital [p]roperty [s]ettlement [a]greement, nor did Husband 

file an inventory or any other document with the [Erie C]ounty 

[p]rothonotary listing the pension as an asset subject to 

equitable distribution.

There was also evidence [Appellant] had a pension or a 401k 

retirement plan while she worked during the marriage as a nurse 

at St. Vincent’s Hospital. Motion Hearing Transcript, 3/2/15, at 

9. This asset was not specifically identified in the [m]arital 

[s]ettlement [a]greement. It is therefore unclear whether 

references made to [Appellant’s] brokerage or mutual fund 

accounts in the agreement refer in fact to the 401k plan from 

the hospital.

In support of her request for imposition of a constructive trust, 

[Appellant] testified at the motion hearing she was not aware of 

Husband’s Van Air Systems pension until she learned of it from 

her sister-in-law, Darlene Nelson, in a [telephone] conversation 

sometime in November, 2012. Nelson did not testify at the 

hearing so there is nothing in the record to show how she knew 

[of Husband’s pension], what motivated Nelson to do so, or if 

the conversation even took place.

[Appellant] further testified she hired an attorney once she [] 

learned of the existence of the asset. Her attorney filed a 

motion on January 30, 2013 requesting relief similar to the relief 

requested in the motion at issue in this case. Husband filed a 

response to the 2013 motion.

Shortly after receiving the response, the attorney for 

[Appellant], with [Appellant’s] consent, withdrew her motion 

before a hearing could be could be held on the merits. Of note is 

that around the same time, the parties were engaged in a 

custody dispute over their three minor children. See [Trial 

Court] Docket Entries dated 11/21/12 [through] 8/27/13.

Husband’s testimony contradicted [Appellant’s] position. He said 

the parties’ finances were not kept separate and apart during the 

marriage. He also said during the marriage he received yearly 

statements concerning the pension. He did not hide the 
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existence of the pension or hide the statements from 

[Appellant]. He recalled the statements, when received in the 

mail, were available to [Appellant] and he had no reason to hide 

their existence “from her during the marriage.” Motion Hearing 

Transcript, 3/2/15, at [15-16 and 18].

In response to the court’s inquiries concerning his knowledge of 

[Appellant’s] pension or 401k[, Husband] did not know the 

specifics of it and did not pay attention to the type of investment 

it was. He did know, however, there were several times during 

the marriage she cashed in part of it to buy “a piano and things 

like that.” Motion Hearing Transcript, 3/2/15, at 18-19.

Finally, Husband testified about the existence of an oral 

agreement made between he and [Appellant] that was not 

included in the [m]arital [s]ettlement [a]greement:

[Husband]: She had something from one of her employers, 

I had the Van Air, neither one did we have a specific value 

on, so we just agreed we’d each keep our own and then 

move on.

* * *

[Counsel]: And it’s your testimony that there was an 

agreement reached. ... That she would walk with whatever

retirement funds she had and you would walk with yours?

[Husband]: Right. That’s correct.

Motion Hearing Transcript, 3/2/15, at 14, 16.

Trial Court Opinion, 5/19/15, at 2-4.

At the conclusion of the hearing, the trial court entered an order 

denying Appellant’s request for imposition of a constructive trust over 

Husband’s pension assets. Appellant filed a timely notice of appeal on March 

25, 2015 and, pursuant to court order, a concise statement of errors 
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complained of on appeal followed on April 16, 2015. See Pa.R.A.P. 1925(b). 

The trial court issued its Rule 1925(a) opinion on May 19, 2015. 

Appellant raises two questions for our review:

Whether the trial court erred in failing to follow the mandates of 

23 Pa.C.S.A. § 3505(d) when [Husband] admitted he failed to 

disclose information required by general rule of the Supreme 

Court, resulting in an asset with a fair market [value] of more 

than $1,000.00 being omitted from the final distribution of 

property[?]

Whether the trial court erred in failing to follow the mandatory 

language of 23 Pa.C.S.A. § 3505(d) which directs a trial court to 

“grant the petition [to impose a constructive trust] upon finding 

a failure to disclose the assets as required by general rule of the 

Supreme Court[?]” [Husband] admitted he did not list the 

pension in pleadings, contrary to the Pennsylvania Rules of Civil 

Procedure.

Appellant’s Brief at 4.

Appellant’s issues are closely related; hence, we shall address them in 

a single discussion. Appellant’s position is that the trial court erred or 

abused its discretion in denying Appellant’s request to impose a constructive 

trust on Husband’s pension assets that he omitted from the parties’ marital 

settlement agreement. She argues that the provisions of 23 Pa.C.S.A. 

§ 3505(d) are mandatory and that Husband’s failure to disclose the 

existence of his pension met all of the statutory criteria for the imposition of 

a constructive trust. She also argues that the trial court erred in denying 

her motion to the extent it weighed certain factors against the imposition of 

a constructive trust. Those factors include the passage of time between the 

entry of the parties’ divorce decree and Appellant’s request for a 
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constructive trust, the trustworthiness of the source of Appellant’s 

information concerning Husband’s pension, and the alleged existence of 

pension assets owned by Appellant.

Appellant’s claims rest on her contention that Husband failed to 

disclose his pension in the marital settlement agreement executed by the 

parties on December 17, 2004, which the court incorporated into the parties’ 

divorce decree issued on December 30, 2004. See Divorce Decree, 

12/30/04. The recital provision of the marital settlement agreement states, 

among other things, that “the parties acknowledge that they have reached a 

satisfactory agreement between themselves and have entered into this 

Agreement freely, with full disclosure of their respective assets[.]” Marital 

Settlement Agreement, 12/30/04, at 2. Article V of the agreement, titled 

“Full Disclosure,” reads as follows:

Each party represents and warrants that he or she has made 

full and complete disclosure in the text of this Agreement

of all the real and personal property of whatsoever kind and 

nature and wheresoever situate belonging in any way to each of 

them, of all debts and encumbrances incurred in any manner 

whatsoever by each of them, of all sources and amounts of 

income received or receivable by each of them, including pension 

benefits, and of such other facts relating to the subject matter of 

this Agreement.

Marital Settlement Agreement, 12/30/04, at 5 (emphasis in original).

The trial court specifically found that Husband failed to disclose his 

pension in the marital settlement agreement. Trial Court Opinion, 5/19/15, 

at 3. The trial court, however, concluded that that it was not required to 
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impose a constructive trust because Appellant knew of Husband’s pension 

when the parties entered into their agreement and because the parties 

agreed to retain their respective retirement assets upon dissolution of their 

marriage. Trial Court Opinion, 5/19/15, at 1. As additional support for 

declining to impose a constructive trust, the trial court also referred to the 

passage of time between the entry of the parties’ divorce decree and 

Appellant’s request for a constructive trust, the unreliability of the source of 

Appellant’s information concerning Husband’s pension, and the alleged 

existence of undisclosed pension assets owned by Appellant.

In a prior case in which we considered both the duty of a party to 

make disclosure under an equitable distribution agreement, as well as the 

consequences of nondisclosure, we stated as follows:

When construing agreements involving clear and unambiguous 

terms, this Court need only examine the writing itself to give 

effect to the parties understanding. McMahon v. McMahon, 

612 A.2d 1360 (1992) (en banc). The court must construe the 

contract only as written and may not modify the plain meaning 

of the words under the guise of interpretation. Trumpp v. 

Trumpp, 505 A.2d 601 (Pa. Super. 1985). When the terms of a 

written contract are clear, this Court will not re-write it or give it 

a construction in conflict with the accepted and plain meaning of 

the language used. Litwack v. Litwack, 433 A.2d 514 (Pa. 

Super. 1981). Conversely, when the language is ambiguous and 

the intention of the parties cannot be reasonably ascertained 

from the language of the writing alone, the parol evidence rule 

does not apply to the admission of oral testimony to show both 

the intent of the parties and the circumstances attending the 

execution of the contract. DeWitt v. Kaiser, 484 A.2d 121 (Pa. 

Super. 1984).

Creeks v. Creeks, 619 A.2d 754, 756 (Pa. Super. 1993).
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The language of the marital settlement agreement, which the court 

incorporated into the parties’ divorce decree, required each party to make 

complete and accurate disclosure of all assets, including retirement benefits. 

The trial court found that Husband breached the clear terms of this duty. 

Because Husband’s disclosure duties are expressly established by the 

parties’ marital settlement agreement, the trial court’s decision to resort to 

parol agreements and circumstances was improper. Husband’s obligation to 

disclose his assets was not conditioned upon Appellant’s knowledge of those 

assets or the parties’ intended distribution scheme. In addition, the court 

should not have looked to the passage of time between entry of the parties’ 

divorce decree and Appellant’s request for a constructive trust, the reliability 

of the source of Appellant’s information concerning Husband’s pension, and 

the alleged existence of undisclosed pension assets owned by Appellant. We 

therefore conclude that Husband's failure to disclose his pension assets 

violated the plain language of the parties’ marital settlement agreement.

Since Husband failed to disclose all of his financial assets, we turn now 

to determine whether Appellant is entitled to raise a constructive trust over 

Husband’s pension account. Appellant sought a constructive trust based on 

section 3505 of the Divorce Code, which provides in relevant part:

§ 3505. Disposition of property to defeat obligations

(d) Constructive trusts for undisclosed assets.—If a party fails to 

disclose information required by general rule of the Supreme 

Court and in consequence thereof an asset or assets with a fair 

market value of $1,000[.00] or more is omitted from the final 
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distribution of property, the party aggrieved by the 

nondisclosure may at any time petition the court granting the 

award to declare the creation of a constructive trust as to all 

undisclosed assets for the benefit of the parties and their minor 

or dependent children, if any. The party in whose name the 

assets are held shall be declared the constructive trustee unless 

the court designates a different trustee, and the trust may 

include any terms and conditions the court may determine. The 

court shall grant the petition upon a finding of a failure to 

disclose the assets as required by general rule of the Supreme 

Court.

23 Pa.C.S. § 3505(d).

“This section mandates the imposition of a constructive trust when a 

party fails to disclose financial assets, and that failure results in the omission 

of an asset with a fair market value of [$1,000.00] or more from the 

equitable distribution scheme.” Creeks, 619 A.2d at 757. We also held, in 

construing this provision, that the circumstances that support imposition of a 

constructive trust “do not include a requirement that the failure to disclose 

an asset be a deliberate or intentional effort to avoid subjecting funds to the 

equitable distribution process.” Id. In fact, “[t]he intent of the party who 

fails to disclose the assets is of no moment.” Id.

It is undisputed that Husband failed to disclose his pension account in 

the parties’ marital settlement agreement. He argues, however, that there 

are three reasons we should affirm the trial court’s refusal to impose a 

constructive trust. First, Husband asserts that the trial court did not abuse 

its discretion in finding that Appellant lacked credibility in denying her 

awareness of Husband’s pension assets and in denying an agreement 
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between the parties to retain their respective retirement assets following 

dissolution of the marriage. Second, Husband asserts that section 3505 

does not apply since neither party filed an inventory or appraisement under 

Pa.R.C.P. 1920.33. Lastly, Husband claims that while there is proof of the 

value of his pension at the time of distribution in 2012, there is no proof of 

its value at the time it was omitted from the parties’ marital settlement 

agreement.

As we stated above, Husband’s duty to disclose his pension was clear 

and was not conditioned upon Appellant’s lack of knowledge of his property 

or the parties’ intended distribution scheme. These parol circumstances are 

irrelevant to the issues at hand. Hence, this factor is not grounds for 

affirming the trial court’s ruling.

We also conclude that the lack of an inventory and appraisement 

under Pa.R.C.P. 1920.33 does not preclude application of section 3505 in 

this case. Here, the parties’ divorce decree incorporated their marital 

settlement agreement, which made no mention of Husband’s pension 

account despite a clear disclosure requirement. In a prior case, we said that 

“the parties’ failure to submit an [i]nventory and [a]ppraisement or include 

a disclosure clause in the [marital settlement a]greement undermines the 

appellee’s reliance upon 23 Pa.C.S.A. § 3505.” Hassick v. Hassick, 695 

A.2d 851 (Pa. Super. 1997) (emphasis added). Hassick suggests that a 

financial omission in either an inventory and appraisement or a marital 
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settlement agreement triggers the remedy found in 23 Pa.C.S.A. § 3505. 

Hence, Husband’s second argument in support of the trial court’s order fails.

Finally, Husband argues that Appellant failed to establish the value of 

his pension at the time the parties executed their marital settlement 

agreement to confirm that it met the $1,000.00 threshold required under 

section 3505(d). We agree that the record does not clearly establish the 

value of Husband’s pension at the time it was omitted from the parties’ 

marital settlement agreement. Accordingly, we vacate the trial court’s order 

and remand for further proceedings to ascertain the value of Husband’s Van 

Air Systems pension as of the date it was excluded from the parties’ marital 

settlement agreement.1

Order vacated. Case remanded for further proceedings. Jurisdiction 

relinquished.

Judge Bowes joins this Memorandum.

Judge Strassburger files a Concurring Statement.

____________________________________________

1 We allow Appellant this opportunity to develop the record as it pertains to 

the value of Husband’s pension in December 2004 since section 3505 affords 

a remedy for the omission of assets “at any time.” 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/1/2016