J-A16031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DONNA JOHNSTONE IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

ROBERT JOHNSTONE

Appellee No. 3186 EDA 2014

Appeal from the Order Entered October 14, 2014

In the Court of Common Pleas of Delaware County

Civil Division at No(s): 29110009184

BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 16, 2015

Donna Johnstone (Wife) appeals from the following orders of the Court 

of Common Pleas of Delaware County: (1) the January 13, 2013 order, 

granting the motion for summary judgment filed by Robert Johnstone 

(Husband) and dismissing with prejudice Wife’s second amended complaint; 

(2) the July 28, 2014 order granting Husband’s motion for summary 

judgment on his counterclaim and entering judgment in favor of Husband; 

(3) the July 28, 2014 order denying Wife’s motion for summary judgment on 

Husband’s counterclaim; and (4) the October 14, 2014 order awarding 

reasonable counsel fees, costs and expenses to Husband in the amount of 

$189,699.58 because of Wife’s breach of the parties’ property settlement 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A16031-15

- 2 -

agreements (PSAs). After careful review, we affirm each of the trial court’s 

orders.

The parties were married in 1994, and separated in 2006. On March 

20, 2009, they signed a PSA, which contains the following relevant 

provisions: 

10. Warranty of Disclosure

If a party has failed to disclose any asset, the fair market value 

of which exceeds twenty five thousand dollars ($25,000.00) as 

of the date of the execution of this Agreement by both parties, 

then, at the other party’s sole discretion, the undisclosed asset 

shall become the sole property of the other party or a cash 

payment equal to the fair market value as of the date of 

execution of this Agreement by both parties or as of the date of 

the discovery of the non-disclosure, whichever is greater, shall 

be made to the other party by the non-disclosing party.

16. Fees in the Event of Breach of Agreement

In the event that either party breaches any provision of this 

Agreement and the other party retains counsel to assist in 

enforcing the terms thereof, the parties hereby agree that the 

breaching party will pay all attorneys fees, court costs and 

expenses which are incurred by the other party in enforcing the 

Agreement, whether enforcement is ultimately achieved by 

litigation or by amicable resolution. It is the specific agreement 

and intent of the parties that a breaching or wrongdoing party 

shall bear the obligation of any and all attorneys fees, court 

costs and expenses incurred by the other in protecting and 

enforcing his or her rights under this Agreement.

PSA, 3/20/09, at 28, 31.

Shortly thereafter, on April 23, 2009, the parties signed a stipulation 

setting forth conditions under which Wife agreed to sign joint tax returns for 

2008. Within weeks of executing the PSA, Wife became concerned that 

Husband had failed to disclose certain assets. As a result, the parties 
J-A16031-15

- 3 -

entered into a supplemental PSA, which they signed on November 23, 2009. 

Under the supplemental PSA, Wife received an additional $200,000 and 

increased alimony for one year totaling approximately $99,000.

The supplemental PSA contains the following relevant provisions:

1. Reaffirmation of the Agreement

The parties hereby reaffirm the validity and enforceability of the 

Settlement Documents with the modifications hereinafter set 

forth.

2. Advice of Counsel and other Professionals

Wife represents and warrants that she had adequate time to 

consult with her counsel as well as her other advisors with 

regard to her rights and obligations related to the Divorce 

Action, the Settlement Documents and this Supplemental 

Property Settlement Agreement. Wife further represents and 

warrants that she is satisfied with the representation and advice 

from her counsel as well as her other advisors.

. . .

Wife confirms that she is entering into this Supplemental 

Property Settlement Agreement freely and voluntarily. Wife 

confirms that her execution of this Supplemental Property 

Settlement Agreement is not the result of any duress, undue 

influence, collusion or improper or illegal agreement or 

agreements. Finally, Wife confirms that she has had adequate 

time to fully consider her rights and obligations under this 

Supplemental Property Settlement Agreement before executing 

it.

3. Financial Disclosures

Husband and Wife acknowledge and agree that they are aware 

of the nature, extent, and value of all assets, liabilities and 

income of the other party. Wife represents and warrants that 

she has additionally made certain independent investigations 

with regard to Husband’s income, business interests, assets and 

liabilities. Wife acknowledges that she is aware that, but for the 

Settlement Documents and this Supplemental Property 

Settlement Agreement, she would be entitled to additional 
J-A16031-15

- 4 -

formal discovery including, but not limited to, review of 

documents, inspections, appraisals, interrogatories, depositions, 

and other discovery permitted by Rules of Civil Procedure or the 

Court in the Divorce Action. Wife knowingly, voluntarily, 

expressly, and intelligently waived her right (if any) to any 

additional financial disclosure of the property, income or financial 

obligations of Husband beyond the disclosure heretofore 

provided. In addition, Wife specifically and knowingly waives her 

right to contest the validity of the Settlement Documents or this 

Supplemental Property Settlement Agreement on the grounds of 

any lack of a full and fair disclosure. Husband knowingly, 

voluntarily, expressly and intelligently waives his right (if any) to 

contest the validity of the Settlement Documents or this 

Supplemental Property Settlement Agreement on the grounds of 

any lack of a full and fair disclosure.

4. Mutual General Releases

a. Except as herein provided for and except as otherwise 

provided for in the Settlement Documents, Wife hereby 

remises, releases, and forever discharges Husband together 

with his successors and assigns from all claims, causes of 

action, damages, demands, suits, sums of money, accounts, 

costs and expenses of whatever kind and nature, known and 

unknown, whether in contract, tort or otherwise, whether 

statutory or common law, at law or in equity which Wife ever 

had against Husband including but not limited to the claims 

asserted in the Divorce Action.

Supplemental PSA, 11/23/09, at 2-5.

On December 21, 2009, the court entered a divorce decree that 

incorporated the original PSA and the supplemental PSA. In 2010, while 

Wife was reviewing an amended 2008 tax return that Husband requested 

Wife to sign, she noticed there was significant interest income on an 

undisclosed investment account. This led her to engage in internet research 

that revealed Husband had other assets that he failed to disclose.
J-A16031-15

- 5 -

Wife commenced this action by filing a writ of summons on November 

22, 2011. She filed her second amended complaint on March 1, 2012, 

asserting breach of contract and fraud in the inducement. Relying on the 

Warranty of Disclosure provision of the PSA, she asked the court to award 

her “all interests held by [Husband] or the fair market value of said interests 

in [ten enumerated] assets effective March 20, 2009 . . . together with all 

income associated with each of these entities from the aforementioned 

date.” Second Amended Complaint, 3/1/12, at 16. Wife also sought counsel 

fees, costs and expenses. In addition, she sought punitive damages with 

respect to the fraud in the inducement claim. 

On September 4, 2013, Husband filed an answer and new matter 

along with a counterclaim alleging a breach of a confidentiality agreement 

and non-disclosure agreement entered into by the parties on October 16, 

2006.

On February 15, 2013, Husband sought to file an amended answer, 

new matter and counterclaim alleging breach of contract and seeking 

enforcement of the post nuptial agreement. On April 11, 2013, the trial 

court permitted the amendment over Wife’s objection, and, on April 16, 

2013, Husband filed his amended answer, new matter and counterclaim to 

Wife’s second amended complaint. 

Husband filed a motion for summary judgment on November 27, 2013, 

to which Wife filed a response on December 19, 2013. By order dated 
J-A16031-15

- 6 -

January 13, 2014, the court granted Husband’s motion and dismissed Wife’s 

second amended complaint with prejudice.

The court denied reconsideration, and on February 11, 2014, Wife filed 

an appeal, which this Court quashed on April 16, 2014.1

On May 22, 2014, Husband filed a supplement to his motion for 

summary judgment and on June 30, 2014, Wife filed her own motion for 

summary judgment. On July 28, 2014, the court granted summary 

judgment in favor of Husband and against Wife on the counterclaims.2 The 

court also scheduled a hearing on the issue of the counsel fees, costs and 

expenses incurred by Husband in protecting and enforcing his rights under 

the parties’ agreements.3 After holding a hearing on August 14, 2014, the 

court issued an order on October 14, 2014, awarding Husband $189,699.58.

Wife filed a timely notice of appeal on November 12, 2014, and on 

January 14, 2015, the court issued an opinion pursuant to Pa.R.A.P. 

1925(a).

____________________________________________

1 The January 13, 2014 order was not a final order because it did not 

address Husband’s counterclaims, which remained outstanding. See 

Pa.R.A.P. 341.

2 By praecipe filed February 24, 2014, Husband withdrew his counterclaim 

for breach of the parties’ confidentiality agreement. Accordingly, the court 

granted relief on Husband’s counterclaims for breach of contract and 

enforcement of the post-nuptial agreement.

3 On July 28, 2014, the court issued a separate order denying Wife’s motion 

for summary judgment on Husband’s counterclaim.
J-A16031-15

- 7 -

On appeal, Wife raises the following issues for our review:

1. Whether a warranty of disclosure of all assets and liabilities in 

a marital property agreement, together with a penalty 

provision for failure to disclose such assets, is enforceable 

despite language in the same agreement relating to a waiver 

and release of marital claims and, if not, does it create an 

ambiguous agreement.

2. Whether [Husband] is entitled to an award of counsel fees 

because [Wife] attempted to enforce the warranty and 

penalty provisions under the marital property settlement 

agreement.

Appellant’s Brief, at 4.

Appellate courts review property settlement agreements under the law 

of contracts. In re Estate of Hoffman, 54 A.3d 903, 907 (Pa. Super. 

2012). 

Because contract interpretation is a question of law, this Court is 

not bound by the trial court’s interpretation. 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. 

However, we are bound by the trial court’s credibility 

determinations.

Ruby v. Abington Memorial Hosp., 50 A.3d 128, 132 (Pa. Super. 2012) 

(citation omitted).

As the trial court recognized:

“In cases of a written contract, the intent of the parties is the 

writing itself. 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). “When the terms of a contract are clear and 

unambiguous, the intent of the parties is to be ascertained from 

the document itself.” Id. See also: In re Estate of Hoffman, 

54 A.3d 903, 907 (Pa. Super. 2012) (the Pennsylvania Superior 

Court reviews property settlement agreements in divorce actions 
J-A16031-15

- 8 -

“under the law of contracts, and therefore we must ascertain the 

intentions of the parties when interpreting the contractual 

agreement”); Crispo v. Crispo, 909 A.2d 308 (Pa. Super. 2006) 

([w]hen construing agreements involving clear and unambiguous 

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

effect to the parties’ understanding”).

Trial Court Opinion, 1/14/15, at 16-17.

On appeal, Wife asserts that the trial court erred by concluding that 

under the supplemental PSA, she waived her right to sue on the warranty of 

disclosure provision of the PSA.4 We disagree.

Wife draws our attention to the portion of the Supplemental PSA, 

entitled, “Reaffirmation of Agreement,” which states, “[t]he parties hereby 

reaffirm the validity and enforceability of the Settlement Documents with the 

modifications hereinafter set forth.” Supplemental PSA, at 2. Wife argues:

____________________________________________

4 When reviewing an order granting summary judgment:

[t]he standard of review is clear: we will reverse the order of 

the trial court only where the court committed an error of law or 

clearly abused its discretion. Atcovitz v. Gulph Mills Tennis 

Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002). Further, summary 

judgment is appropriate only where the record clearly shows that 

there is no genuine issue of material fact and that the moving 

party is entitled to judgment as a matter of law. Id. at 1221. 

The reviewing court must view the record in the light most 

favorable to the nonmoving party and resolve all doubts as to 

the existence of a genuine issue of material fact against the 

moving party. Id. Only when the facts are so clear that 

reasonable minds cannot differ can a trial court properly enter 

summary judgment. Id. at 1222.

Mountain Village v. Bd. Of Supervisors of Longswamp Tp., 874 A.2d 1, 

5 (Pa. 2005).
J-A16031-15

- 9 -

Nowhere in the Supplemental Agreement was the warranty of 

disclosure or penalty provision removed or in any way amended. 

Accordingly, because the Original Agreement was ratified, it 

remained in full force and effect. The Supplemental Agreement 

also states, “Except as amended or modified by this 

Supplemental Property Settlement Agreement, the Property 

Settlement Agreement shall remain in full force and effect,” 

[Supplemental PSA, at 10] thereby reaffirming the warranty and 

penalty provisions in the Original Agreement.

Appellant’s Brief, at 18. 

Wife asserts that the trial court erred by reading the warranty and 

penalty provisions out of the documents in violation of the rule that “terms 

in one section of a contract . . . should never be interpreted in a manner 

which nullifies other terms in the same agreement.” Trombetta v. 

Raymond James Financial Services, 907 A.2d 550 (Pa. Super. 2006) 

(citation omitted). 

However, in the instant matter, there were two successive 

agreements. Trombetta provides that “a contract can be modified with the 

assent of both contracting parties if the modification is supported by 

consideration.” Id. at 558 (citation omitted). Pursuant Sections 3 and 4 of 

the Supplemental PSA, Wife relinquished her right to contest the validity of 

the PSA and Supplemental PSA. In return for Wife’s general release of all 

claims, Husband agreed to pay Wife an additional $299,000. Accordingly, 

there was a valid contract modification supported by consideration. 

Trombetta, supra.

Wife next asserts that the trial court erred in relying on Lugg v. Lugg, 

64 A.3d 1109 (Pa. Super. 2013), in support of its order granting Husband’s 
J-A16031-15

- 10 -

motion for summary judgment. In Lugg, this Court rejected “the assertion 

that economic disclosure cannot be waived because the party waiving 

disclosure does not know the extent of what is being waived.” Id. at 1112. 

Rather, “there is no prohibition against the waiver of economic disclosure.” 

Id. at 1113. 

As the trial court noted:

In the case sub judice, [Wife] attempted to distinguish Lugg [], 

with the contention that she is not attempting to void the 

Settlement documents, but to enforce the “Warranty of 

Disclosure,” a right that clear and express language of the 

Supplemental Property Settlement Agreement, nevertheless, 

unambiguously modified and wavied. [Wife] is currently seeking 

to fault the [c]ourt for employing Lugg as authority against her 

ex post facto. However, an examination of: (a) the wording of 

the Supplemental Property Settlement Agreement and the 

circumstances surrounding its execution; (b) the express 

intentions of the parties to release each other from further such 

claims and to end the divorce litigation between them; and (c) 

the bestowing of an additional $299,000.00, including future 

alimony payments, as consideration for [Wife] entering into that 

Agreement with its express waiver of further and/or future 

discovery into [Husband’s] assets; and (d) her release of future 

claims of failure by [Husband] to disclose its assets, rendered it 

entirely reasonable to conclude that such provisions were 

enforceable even without the guidance afforded by the case 

authority of Lugg[]. 

Trial Court Opinion, 1/14/15, at 17-18.

The trial court’s conclusion that Wife waived economic disclosure and 

relinquished the right to sue for a breach of the warranty of disclosure in the 

original PSA is a correct interpretation of the contract and is supported in the 

record. Accordingly, Wife has failed to establish a right to relief.
J-A16031-15

- 11 -

Recognizing that postnuptial agreements are subject to the rules of 

contract interpretation, Wife argues “the existence of the warranty of 

disclosure and penalty provisions in the Original Agreement as ratified by the 

Supplemental Agreement creates an ambiguity in the Settlement Agreement 

that must be resolved by a jury.” Appellant’s Brief, at 24. We find this issue

is waived because Wife failed to raise it in her statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b).5 

____________________________________________

5 Wife raised the following issues in her Rule 1925(b) statement:

1. On January 13, 2014, the Honorable Court granted 

[Husband’s] motion for summary judgment citing Lugg v. 

Lugg, 64 A.3d 1109 (Pa. Super. 3013) and dismissed [Wife’s] 

Second Amended Complaint with prejudice.

2. The Court erred in its application of Lugg v. Lugg, as that 

case involves an express waiver of disclosure and this case is 

predicated upon a warranty of disclosure.

3. The Court erred if it found that an action filed to enforce an 

Agreement is, without more, a breach of the same agreement 

warranting an assessment of damages including attorneys’ 

fees premised upon breach.

4. Where the Court has overruled preliminary objections and 

held that [Wife] had stated a cause of action and [Husband’s] 

counterclaim is premised upon an appellate case not decided 

until 18 months after the underlying case is brought, the 

[t]rial [c]ourt erred in determining that the counterclaim was 

valid and awarding damages predicated upon the 

counterclaim.

5. The [t]rial [c]ourt erred if it found that [Husband] sustained 

damages in defending an action to enforce an agreement and 

if it intended to rebate to [Husband] all of the consideration 

paid to [Wife] under the terms of the Supplemental 

(Footnote Continued Next Page)
J-A16031-15

- 12 -

Rule 1925(b)(4)(ii) provides, in relevant part, that “[t]he [s]tatement 

shall concisely identify each ruling or error that the appellant intends to 

challenge with sufficient detail to identify all pertinent issues for the judge.” 

Failure to raise an issue in a Rule 1925(b) statement will result in waiver.” 

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (quoting 

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).

Accordingly, the issue is waived, and we are precluded from engaging 

in appellate review of Wife’s claim regarding ambiguity.

(Footnote Continued) _______________________

Agreement between the parties where no actual damages 

were pled or proved.

6. To the extent that the [t]rial [c]ourt entered judgment on 

Counts II and III of the Counterclaim premised upon a failure 

to answer amendments to the Motion for Summary Judgment, 

the Court erred in (a) permitting [Husband] to file multiple 

amended motions for summary judgment without leave of 

Court; (b) failing to strictly comply with Delaware County Rule 

1028 and (c) granting summary judgment on the bare 

allegation that in bringing a cause of action, [W]ife breached 

a contract her own action was intended to enforce.

7. The Trial Court erred in awarding attorneys’ fees and costs 

where [Wife’s] claim was to enforce express warranties set 

forth in the agreements between the parties and the 

agreements do not contain provision stating that an action to 

enforce the agreements is, itself, a breach of the agreements.

8. The grant of summary judgment in this case does not 

conform to the requirements of Pa.R.C.P. 1035.2 [“After the 

relevant pleadings are closed, but within such time as not to 

unreasonably delay trial, any party may move for summary 

judgment in whole or in part as a matter of law.”].

Concise Statement of [Errors] Complained of on Appeal, 12/8/14. 
J-A16031-15

- 13 -

Wife’s final claim is that the trial court erred by concluding that 

Husband was entitled to counsel fees. We review an award of counsel fees 

and costs only for an abuse of discretion. See Busse v. Busse, 921 A.2d 

1248, 1258 (Pa. Super. 2007). As previously noted, the PSA contains the 

following provision entitled “Fees in the Event of Breach of Agreement”:

It is the specific agreement and intent of the parties that a 

breaching or wrongdoing party shall bear the obligation of any 

and all attorneys fees, court costs and expenses incurred by the 

other in protecting and enforcing his or her rights under this 

Agreement.

PSA, 3/20/09, at 31.

Read in conjunction with the “Mutual General Releases” provision of 

the PSA, which provides in relevant part that “Wife discharges Husband . . . 

from all claims . . . known and unknown,” the Court reasonably concluded 

that “Wife had failed to comply with the terms of the Supplemental [PSA] by 

suing [Husband] over a claim of undisclosed assets after she had expressly 

and voluntarily waived her ability to do so in the future.” Trial Court 

Opinion, 1/14/15, at 25.

The trial court also awarded counsel fees and costs based on the 

Divorce Code, 23 Pa.C.S. §§ 3101-3904 (the Code). Section 3105(a) of the 

Code provides:

§ 3105. Effect of agreement between parties

(a) Enforcement. – A party to an agreement regarding matters 

within the jurisdiction of the court under this part, whether or 

not the agreement has been merged or incorporated into the 

decree, may utilize a remedy or sanction set forth in this part to 
J-A16031-15

- 14 -

enforce the agreement to the same extent as though the 

agreement had been an order of the court except as provided to 

the contrary in the agreement.

23 Pa.C.S. § 3105(a). 

Section 3502 of the Code provides, in relevant part:

§ 3502. Equitable distribution of marital property

Powers of the court. – If, at any time, a party has failed to 

comply with an order of equitable distribution, as provided for in 

this chapter or with the terms of an agreement as entered into 

between the parties, after hearing, the court may, in addition to 

any other remedy available under this part, in order to effect 

compliance with its order:

. . .

(7) award counsel fees and costs[.]

23 Pa.C.S. § 3502(e)(7).

In Miller v. Miller, 983 A.2d 736 (Pa. Super. 2009), this Court held 

that where a party incurs significant fees to enforce a provision regarding 

the parties’ economic obligations, the court is empowered to award fees.

Accordingly, the trial court did not abuse its discretion in concluding that 

Husband was entitled to fees and costs under the parties’ agreements and 

the Divorce Code.6

Orders affirmed.

____________________________________________

6 We note that on appeal Wife does not challenge the specific amount of the 

costs, fees and expenses awarded by the trial court. Her argument is limited 

to whether the court abused its discretion in permitting the recovery of cost, 

fees and expenses.
J-A16031-15

- 15 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/16/2015