J-A16034-14

2014 PA Super 285

K.A.R. FORMERLY K.A.L. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. T.G.L. Appellee No. 1561 WDA 2013

Appeal from the Order September 6, 2013 In the Court of Common Pleas of Allegheny County Family Court at No(s): FD 00-7928-016
BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J. OPINION BY OTT, J.: FILED DECEMBER 23, 2014 K.A.R., formerly K.A.L. (hereinafter “Wife”), brin gs this appeal 1 from the order entered September 6, 2013, in the Court o f Common Pleas of Allegheny County, dismissing in part her Exceptions to the Report and Recommendation of the Master, and granting the Exce ptions filed by T.G.L. (hereinafter “Husband”), in this action brought by Wife to enforce the parties’ equitable distribution agreement. Wife cl aims the trial court erred in ruling (1) that Husband’s statute of limitations de fense barred Wife’s action to enforce the parties’ equitable distribution agre ement, and (2) that

____________________________________________ 1 Because a consent order to seal the record was ent ered by the trial judge, the parties’ names have been replaced with initials , and other identifying proper names have been replaced with generic labels

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Husband’s laches defense barred Wife’s action to en force the parties’ equitable distribution agreement. Based upon the f ollowing, we affirm. The trial court has aptly stated the factual and p rocedural history, which we restate, in part: Husband and Wife married on June 17, 1988. Two chil dren were born of the marriage [who] are both emancipated. Wi fe filed a Complaint in Divorce on January 29, 2000, and a dec ree in divorce was entered August 5, 2003. The parties par ticipated in an Equitable Distribution hearing before Master Gar y Gilman on August 21 and August 22, 2003. On the second day of the hearing counsel for the parties read an Equitable D istribution Agreement into the record. One marital asset the pa rties discussed in the Agreement was Husband’s interest i n his startup venture, [Business-1] (hereinafter referred to as “ [Business-1] ”). Counsel for Husband stated, With regard to [Business-1] stock, Husband would agree – or the parties I believe agree that in this contemplated agreement that of the first net after taxes of a million dollars [H]usband received from the sale of [Business-1] stock, if and when it would be sold, and/or of the sale of any warrants which Husband has in [Business-1] stock or any other benefits he derives from the disposition of his interest in [Business-1] as it stands right now, as to the first million dollars of that net, after taxes, Wife would receive 50 percent – I’m sorry – Wife would receive 45 percent, Husband would receive 45 percent and 10 percent would be invested in a vehicle for the Children ... And with regard to any amount over that first million net, again, defining the proceeds broadly to include remuneration of any kind other than his salary or wages which he would receive from the disposition of what currently exists as of today, it would be split 75 percent to Husband, 15 percent to Wife, 10 percent to the Children. (8/22/2003 H.T., at 72–3).J-A16034-14

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Wife served Husband a Petition to Enforce the Equit able Distribution Agreement and for Sanctions on March 2 1, 2011 (hereinafter referred to as the “Petition to Enforc e”). The Petition to Enforce asserted, inter alia , that Husband sold a portion of his [Business-1] stock in January 2004[, that the total sale was completed] for approximately $22 million[, and that Wife believes Husband received initial proceeds in exces s of $2.5 million.] Wife also stated that Husband retained t he advertising component of [Business-1] as part of the initial tr ansaction, which was renamed [Business-2]. She claimed that [B usiness 2] subsequently became [Business-2A], and Husband then sold his interest in [Business-2A]. Wife alleged that Husban d retained all the funds from the transaction. Wife averred that H usband made a payment to her of $300,000 on April 9, 2004 and a second payment of $150,000 to her on September 15, 2005. W ife further alleged that Husband failed to include any interest component for the delayed payments. [Wife averred t hat based upon the limited information provided by Husband, s he believed she was owed over $300,000 for her share of the sal e proceeds from Business-1 and Business-2/Business-2A.] Wife asked the Court, inter alia , to schedule a hearing to address Wife’s claim for enforcement of the Equitable Distribution Agree ment. On March 30, 2011 Husband served Wife an Answer to the Petition to Enforce, New Matter and Counter Petitio n. Husband stated that Wife’s interests in [Business-1] were l imited to Husband’s ownership rights as they existed on Augus t 22, 2003, 1 and Wife was not entitled to any future considerati on given to Husband for the future commitments he made as part of the [Business-1] transaction. Husband stated that Wife’ s interests were limited to the after-tax proceeds that he woul d have received if his stock were treated the same as all common shares because he only held common stock in [Busine ss-1] on August 22, 2003. Husband further stated that he ret ained no ownership interest in [Business-1] after the Januar y 2004 sale and that [Business-2A] was completely distinct from [Business1]. Husband averred that he overpaid Wife $152,887. 28 for her share of what he received for the [Business-1] stoc k and asked that Wife repay this amount to him along with inter est. 2

___________________________________________________ ____________________J-A16034-14

- 4 - 1 This is the date that the Equitable Distribution Agreement was read into the record.

2 Husband stated that he would have received a pre-ta x payment of $846,475 as a result of the [Business-1] transaction if his shares were treated as common sh ares. Under Husband’s calculations this would have yielde d after-tax proceeds of $660,000, which would entitle Wife to $297,112.73. Husband stated that he had paid Wi fe $450,000 with respect to [Business-1], which is an overpayment in the amount of $152,887.28

______________________________________________ **** The four (4) day hearing to address Wife’s Petition to Enforce took place before Master [Patricia] Miller [on Marc h 20, 2012, May 29, 2012, May 31, 2012, and August 30, 2012]. M aster Miller entered her Report and Recommendation on Sep tember 28, 2012. In this Report the Master determined that no agreement was formed between the parties on August 22, 2003. The Master found that Wife’s decision to discharge her attorney after the parties’ counsel discussed the dispositio n of the [Business-1] stock on the record, to sue him for ma lpractice, and to state in verified pleadings that there was no va lid agreement was sufficient evidence that an agreement never exi sted. The Master also concluded that it was not clear if even Husband believed there was an agreement that he was to pay Wife 45% of the first $1,000,000 he received for the sale ofhis [Business1] stock. The Master stated that either party could praecipe for an equitable distribution hearing to determine the marital property component of the [Business-1] stock and th e percentage distribution to each party. Husband and Wife filed Exceptions to the Report and Recommendation of Master Miller on October 18, 2012

. ...   After the parties argued Exceptions on August 29, 2 013, the Court entered its September 6, 2013 Order that gran ted in partJ-A16034-14

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Wife’s Exceptions to the Report and Recommendation of Master Miller. The Court found that the Master ruled on an issue that was not before her [namely, the validity of the agr eement], that the Master failed to rule on the issues referred to her by the August 19, 2011 Order of Court [namely, Husband’s a ffirmative defenses of statute of limitations and/or laches], that a valid equitable distribution agreement exists between Hus band and Wife, and that an equitable distribution hearing wa s not to be scheduled. The Order dismissed Wife’s remaining Exc eptions. The Order also granted Husband’s Exceptions to the Report and Recommendation of Master Miller [that asserted Wife ’s claims were time barred by the statute of limitations and the doctrine of laches]. The Court found that Husband’s defenses of statute of limitations and laches bar enforcement of the Equit able Distribution Agreement. The Order also resolved all remaining economic issues between Husband and Wife. Wife filed her Notice of Appeal to the September 6, 2013 Order of Court on September 30, 2013, and she thereafter filed her Concise Statement of Matters Complained of on Appea l on October 1, 2013. Trial Court Opinion, 12/2/2013, at 1–6 (emphasis su pplied). Preliminarily, we note that “[a] question regardin g the application of the statute of limitations is a question of law.” Commonwealth v. Riding , 68 A.3d 990, 993 (Pa. Super. 2013). Furthermore, “ the question of whether laches applies is a question of law.” United National Insurance Co. v. J.H. France Refractories Co. , 668 A.2d 120, 124 n.4 (Pa. 1995). “Our standard of review over questions of law is de novo and to the extent necessary, the scope of our review is plenary as [t he appellate] court may review the entire record in making its decision.” Stamerro v. Stamerro , 889 A.2d 1251, 1257 (Pa. Super. 2005) (quotations a nd citation omitted).J-A16034-14

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However, we are bound by the trial court’s credibil ity determinations. Id. at 1257–1258. Wife first contends that the trial court erred in r uling the statute of limitations barred the present action to enforce th e parties’ agreement. Wife argues that the parties’ agreement is a “continuing contract.” The statute of limitations for contracts is four y ears. 42 Pa.C.S. § 5525(a)(8). “[T]he statute of limitations begins t o run as soon as the right to institute and maintain a suit arises.” Fine v. Checcio , 870 A.2d 850, 857 (Pa. 2005) (citation omitted). However, “[w]hen a contract is continuing, the statute of limitations will run either from the time the breach occurs or when the contract is terminated.” Crispo v. Crispo , 909 A.2d 308, 313 (Pa. Super. 2006) ( citing S.T. Hudson Eng'rs, Inc. v. Camden Hotel Dev.
Assocs. , 747 A.2d 931, 934 (Pa. Super. 2000)). “The test of continuity, so as to take the case out of the operation of the sta tute of limitations, is to be determined by the answer to the question whether th e services were performed under one continuous contract, whether ex press or implied, with no definite time fixed for payment, or were rendere d under several separate contracts.” Thorpe v. Schoenbrun , 195 A.2d 870, 872 (Pa. Super. 1963). Wife argues that the parties’ equitable distributi on agreement is a continuing contract because, as part of the January , 2004 Business-1 sale, Husband acquired an interest in Business-2A, which was part of 2006 andJ-A16034-14

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2009 transactions that netted Husband additional pr oceeds to which Wife is entitled to under the parties’ agreement. See Wife’s Brief at 23. Wife points to the language in the parties’ agreement st ating, “Wife was to receive 45% of the initial million dollars, net aft er taxes, from the sale of [Business-1] stock, if and when it would be sold, a nd/or of the sale of any other warrants which Husband had in [Business-1] st ock or any other benefits [Husband] derived from the disposition of his interest in [Business1] .” Wife’s Brief at 23 (italics in brief). Wife co ntends Husband had a continuing obligation extending through the 2009 [B usiness-2A] transaction, which was less than four years prior to the date sh e filed her petition to enforce. See id. at 25. In support of her argument that the equita ble distribution agreement was a continuing contract, W ife cites Miller v. Miller , 983 A.2d 736 (Pa. Super. 2009), appeal denied , 998 A.2d 961 (Pa. 2010) and Crispo v. Crispo, supra

. In Miller

, supra , the defendant/husband was obligated by the partie s’ post nuptial separation agreement to pay the mortga ge, taxes and insurance on the marital residence. Id. at 738. After the husband stopped making payments based upon a 1996 interim order of child s upport that directed plaintiff/wife to pay the mortgage from husband’s c hild support payments, wife filed a petition for enforcement of the partie s’ agreement in 2005. Id. at 738–739. Husband argued that the applicable fou r-year statute ofJ-A16034-14

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limitations barred wife’s claim for reimbursement o f payments she made before November 15, 2001 ( i.e., four years prior to when she filed her petition for enforcement on November 15, 2005). Id. at 743. This Court rejected husband’s argument, determining that the p arties’ agreement was a continuing contract. The Court found that husband continued to owe payments on the marital residence, and noted that t he agreement did not set a specific deadline by which to make the paymen ts and did not identify specific amounts owed. Id.
In Crispo, supra , 909 A.2d 308 (Pa. Super. 2006), the parties entered into a property settlement agreement that d etailed various payments and debts each party would pay. Id . at 309–10. After husband failed to make payments, wife filed a petition for contempt and/or enforcement of the property settlement agreement. Id . at 309. The trial court found husband in contempt and ordered him to fulfill the terms of the settlement agreement. Id . at 311. Husband appealed, claiming the four-year statute of limitations for contracts and marriage s ettlement agreements applied to wife’s claims. Id . This Court disagreed, concluding that the parties’ agreement was a continuing contract and th e statute of limitations defense was inapplicable. Id . at 315. In this regard, the Court noted that their agreement did not contain a specific deadline by which the debts were to be paid, and that wife continued to make payment s to satisfy the debtsJ-A16034-14

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that were husband’s obligation. The Court also not ed that there was no specific start date in the agreement for husband’s installment payments to wife for the $22,500 amount he had agreed to pay he r as her fair share of the interest in his business. Id. at 313–314. Here, however, as the trial court aptly explained, the present case is distinguishable from Miller and Crispo : Wife argues in her Brief in Support of Exceptions t hat “the parties’ agreement is a continuing contract because Husband was not fully compensated for the sale of [Business -1] in a lump sum, and he had a continuing obligation to pay Wife her share of further monies received as a result of the sale.” ( Wife’s Brief in Support of Exceptions, p. 17). This is an inaccurat e conclusion in light of the terms of the Equitable Distribution Ag reement and the evidence before the Court. The Equitable Distri bution Agreement states, in relevant part, that, ... of the first net after taxes of a million dolla rs husband received from the sale of [Business-1] stock, if and when it would be sold , and of the sale of any other warrants which Husband has in [Business-1] stock or any othe r benefits he derives from the disposition of his int erest in [Business-1] as it stands right now ... Wife would receive 45 percent, Husband would receive 45 percent, and 1 0 percent would be invested in a vehicle for the Chil dren ... And with regard to any amount over that first milli on net, again, defining the proceeds broadly to include remuneration of any kind other than his salary or w ages which he would receive from the disposition of what currently exists as of today , it would be split 75 percent to Husband, 15 percent to Wife, 10 percent to the Children. (8/22/03 H.T. pp. 72- 3) (emphasis added ). First, the “if and when” language in the Equitable Distribution Agreement clearly sets a “definitive t ime fixed for payment”: Wife’s right to receive a percentage of H usband’s remuneration from the sale of the [Business-1] stoc k arose whenJ-A16034-14

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Husband disposed of this stock. Since Husband sold all of his [Business-1] stock in the January 22, 2004 [] merge r, January 22, 2004 is the date that Wife became entitled to p ayment from Husband. (Husband’s Exhibit 32, §13). ... As of November 4, 2003, Husband owned 2,370,000 shares of voting common stock. (Wife’s Exhibit N). Husband testified at the Petition to Enforce hearing that t he pre-tax market value of this amount of common stock on Janu ary 22, 2004 was worth approximately $850,000. (3/20/12 H.T ., p. 162). Husband further testified that he received a stay bonus as a part of the transaction. Husband was allocated th is bonus by a Corporate Resolution passed by the Shareholders and Directors of [Business-1] on January 15, 2004. (Husband’s Exh ibit 32). Husband testified that this bonus was received beca use of the future commitments he made [], including staying on with [Business-1] as an employee at a reduced compensati on, assigning his future intellectual property rights, signing a longterm noncompete, indemnifying the entire merger, an d initiating and forming an advertising initiative ([Business-2A ]). (3/20/12 H.T., p. 163). Husband contends that these future c ommitments and any monies associated therewith were not availa ble to Wife under the Equitable Distribution Agreement, .... ** ** Wife likens the Equitable Distribution Agreement to the property settlement agreements in Crispo and Miller . She argues that the Equitable Distribution Agreement is a continuing contract that required Husband to pay Wife a percen tage of all proceeds he received from the sale of the [Business -1] assets as those assets were sold. (Wife’s Brief in Support of Exceptions p. 18). Wife further argues that there is no manner in which the Court could determine any specific date on which Hu sband was required to make payments under the parties’ agreem ent and it does not identify specific amounts owed. (Wife’s Br ief in Support of Exceptions p. 18). As discussed supra, the “if and when” language of the Equitable Distribution Agreement sets a specific ti me for payment to Wife: when Husband sold his [Business-1] stock, his duty to compensate Wife arose simultaneously. Since HusbandJ-A16034-14

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disposed of all of his [Business-1] stock on Januar y 22, 2004, payment to Wife became due on this date. The specif ic amounts owed from Husband to Wife are also identified in th e Equitable Distribution Agreement. Under the Agreement Wife wo uld receive 45% of the net proceeds up to the first mil lion dollars that Husband reaped from the sale of his [Business- 1] stock, and Wife would thereafter receive 15% of the net procee ds above the first million dollars. Since the sale of the [B usiness-1] stock had not yet occurred at the time the Equitable Dist ribution Agreement was entered on the record, the Court find s that the identification of percentages owed to each party ar e appropriate proxies for specific dollar amounts. In consideration of the above, the Court holds that the Equitable Distribution Agreement sets a definitive time for payment from Husband to Wife and is distinguishable from the property settlement agreements in Crispo and Miller

. .... Trial Court Opinion, supra , at 9–13. We agree with the trial court’s analysis. The “if and when” language of the agreement provided that the date that Husband s old the Business-1 stock — here, January 22, 2004 — was the specific dat e when Husband became obligated to make payment to Wife for the Bu siness-1 sale. Moreover, the parties’ agreement identifies the amo unt owed to Wife, in terms of percentages of net proceeds received by Hu sband. Accordingly, we conclude Wife’s first argument presents no basis to disturb the trial court’s determination that the parties’ agreement is not a continuing contract and that the statute of limitations bars the present ac tion. Alternatively, Wife claims that if the statute of l imitations is applicable, the statute of limitations was tolled by: (1) the w rit of summons filed byJ-A16034-14

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Wife, (2) the discovery rule, (3) Husband’s conceal ment and the parties’ ongoing negotiations, and (4) Husband’s acknowledge ment of his obligation to Wife. We are not persuaded by these arguments. We first address Wife’s argument that the statute o f limitations was tolled by the writ of summons she filed on January 20, 2005, in the Civil Division of the Allegheny County Court of Common Pl eas, against Husband and Husband’s wife with a demand for a jury trial. The record supports the trial court’s finding that Wife’s deposition testim ony, taken during her legal malpractice action against her attorney whom she di scharged after the parties’ agreement was made of record, evidences th at she had filed the writ against Husband and a separate writ against Husband ’s attorney to protect her ability to bring a fraud action in relation to the malpractice action, and not to protect her interests in this enforcement ac tion. 2 See Trial Court Opinion, 12/2/2013, at 24. See also N.T., 8/30/2012, at 259, 267; Husband’s Exhibit 59 § 12. Wife, however, contends that she filed the writ against Husband to preserve all her legal claims against him. In this regard, Wife points to her then counsel’s November 1, 2005 letter to Husband,

____________________________________________ 2 In fact, on January 14, 2005, less than one week b efore Wife filed the writ, Wife sent Husband an email, stating, in part: “‘Th e statute of limitations for fraud in PA is one year, so suit will be filed befo re the anniversary of the [January 22, 2004] sale.’” N.T., 3/20/2012, at 84; Husband’s Exhibit 9.J-A16034-14

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demanding Husband’s payment of additional monies an d stating, if Husband did not agree to payment, Wife would “pursue the fr aud claim and all other legal claims and remedies against you[.]” Wife’s E xhibit II, Letter from Wife’s Attorney to Husband, 11/1/2005. See Wife’s Brief at 29. See also N.T., 5/29/2012, at 245–246. Wife relies on case law that allows a party to file an enforcement action under § 3105 of the Divorce Code 3 and a separate action in the civil division on the property settlement agreement itsel f, and maintains that, because she filed the writ, she can still file a co mplaint in the civil division at any time. 4 Wife, however, cites no authority that supports the application of a writ of summons in a civil action to an enforc ement proceeding under

____________________________________________ 3 Section 3105 of the Divorce Code provides, in pert inent part: (a) Enforcement. --A party to an agreement regarding matters within the jurisdiction of the court under this par t, whether or not the agreement has been merged or incorporated i nto the decree, may utilize a remedy or sanction set forth in this part to 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).

4 See Wife’s Brief at 31–32, citing , inter alia , Nicholson v. Combs , 703 A.2d 407, 417 (Pa. 1997); Peck v. Peck , 707 A.2d 1163, 1164 (Pa. Super. 1998).J-A16034-14

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the Divorce Code. 5 Therefore, we agree with the trial court that “Wi fe’s claims in the current enforcement action could not and cannot be preserved by a Writ of Summons[.]” Trial Court Opinion, 12/2 /2013, at 24. Accordingly, Wife’s reliance on the writ of summons to toll the statute of limitations fails. Next, Wife claims that the discovery rule tolls the statute of limitations. The discovery rule is a judicially created device t hat tolls the running of the applicable statute of limitations un til that point when the plaintiff knows or reasonably should know: (1) that he has been injured; and (2) that his injury has been caused by another party’s conduct. Weik v. Estate of Brown , 794 A.2d 907, 909 (Pa. Super. 2002) (citation omitted), appeal denied , 813 A.2d 844 (Pa. 2002). Whether the statute of limitations has run on a cla im is a question of law for the trial court to determine; b ut the question as to when a party’s injury and its cause were disc overed or discoverable is for the [factfinder]. Fine v. Checcio , supra , 870 A.2d at 859.

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5 Compare Pa.R.C.P. 1007 (“An action may be commenced by fil ing with the prothonotary (1) a praecipe for writ of summons, or (2) a complaint.”) with Pa.R.C.P. 1920.12 (regarding complaint as to cause of action of divorce or for annulment) and Pa.R.C.P. 1920.43(a)(3) (providi ng procedure for special relief in divorce or annulment actions; “At any tim e after the filing of a complaint, on petition setting forth facts entitlin g the party to relief, the court may, upon such terms and conditions as it dee ms just, including the filing of security, ... grant other appropriate reli ef.”).J-A16034-14

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Pennsylvania’s formulation of the discovery rule re flects a narrow approach “to determining accrual for limitations pu rposes” and places a greater burden upon Pennsylvania plaintiff s vis-à-vis the discovery rule than most other jurisdictions. The c ommencement of the limitations period is grounded on “inquiry n otice” that is tied to “actual or constructive knowledge of at lea st some form of significant harm and of a factual cause linked t o another’s conduct, without the necessity of notice of the ful l extent of the injury, the fact of actual negligence, or precise c ause.” Gleason v. Borough of Moosic , 15 A.3d 479, 485 (Pa. 2011) (citations omitted). Wife claims the statute of limitations could not ha ve begun to run until after Husband provided her with his relevant tax re turns in the summer of 2011 and 2012 pursuant to court order, because only then was she able to verify the correct amounts of the 2004 sale of Busi ness-1 and the 2006 and 2009 Business-2A transactions. See Wife’s Brief at 34–35. The trial court, however, found that after Wife learned of the Janua ry, 2004 Business-1 sale, 6 Husband provided Wife with distribution spreadshee ts explaining the amounts Husband received from the sale, which Wife acknowledged by a notation on the documents in April 2004. Additiona lly, the trial court found that Husband provided Wife with the closing binder of the Business-1

____________________________________________ 6 Wife testified she learned about the Business-1 sa le, and the new company, Business-2A, in April, 2004, when a friend sent her a newspaper article about the sale. See N.T., 3/20/2012, at 45; N.T., 5/29/2012, at 175–178. See also Wife’s Brief at 7–8.J-A16034-14

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transaction in early January of 2005, following whi ch Wife sent Husband an email on January 14, 2005, indicating that she stil l believed Husband owed her money under the parties’ equitable distribution agreement. 7 See Trial Court Opinion, 12/2/2013, at 14–15. These findings are supported by the record. Furthermore, we agree with the trial court that the January 14, 2005 date of Wife’s email to Husband must be consid ered the latest date for application of the discovery rule, as she evidenced her belief at that time that she had suffered harm. Therefore, the statute of limitations expired on January 14, 2009, over two years before Wife filed her petition for enforcement. Accordingly, we conclude the discover y rule does not save Wife’s petition from Husband’s statute of limitatio ns defense. Wife further claims that the statute of limitations was tolled by Husband’s concealment and the parties’ negotiations

. [T]he doctrine of fraudulent concealment serves to toll the running of the statute of limitations. The doctrine is based on a

____________________________________________ 7 The January 14, 2005 email exchange between Wife t o Husband included the following message from Wife to Husband: You obviously received millions of dollars in a cas h deal on January 22, 200[4]. That fact is not subject to in terpretation. I now have information inconsistent with the homemade spreadsheets I received from you in April. Meeting with you gets me nowhere, because it is what it is. I’m not inte rested in reforming the deal. I want a check tonight. Husband’s Exhibit 9; see N.T., 3/20/2012, at 86–87.J-A16034-14

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theory of estoppel, and provides that the defendant may not invoke the statute of limitations, if through fraud or concealment, he causes the plaintiff to relax his v igilance or deviate from his right of inquiry into the facts. T he doctrine does not require fraud in the strictest sense encompassi ng an intent to deceive, but rather, fraud in the broadest sense , which includes an unintentional deception. The plaintiff has the burden of proving fraudulent concealment by clear, precise , and convincing evidence. Fine v. Checcio, supra , 870 A.2d at 860 (citations omitted). Wife asserts that Husband concealed the amount of m onies he received from the Business-1 transaction. Wife con tends that Husband, through counsel, “averred that he received no more than $1,000,000” and “state[d] Wife was overpaid,” 8 and in support of this argument points to a May 7, 2007 letter from Husband’s counsel. However , the letter itself belies Wife’s claim. Counsel’s letter stated that counsel had “no information [related to the sale of Business-1] other than what [Husband] advised me, which is that all of the monies were paid.” Wife’s Exhibit G; N.T., 3/20/2012, at 270. Counsel further stated: “I bel ieve that it is true [Husband] has paid [Wife] all or perhaps in excess of the amount he owed pursuant to the equitable distribution settlement.” Id. Counsel made no representation concerning the amount Husband receiv ed from the Business1 sale. Further, counsel’s statement that Husband had satisfied his

____________________________________________ 8 Wife’s Brief at 37–38.J-A16034-14

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obligation to Wife was not a misrepresentation of t he amount received by Husband for the sale of Business-1. Next, Wife points to “Husband’s testimony herein cl aiming receipt of only $850,000, while his tax return for 2004 shows receipt of $2.6 million and his 2006 and 2009 tax returns show receipt of a dditional funds that are in excess of $1 million.” Wife’s Brief at 38. Hus band’s testimony at the hearings before the master, however, could not have misled Wife. 9 Wife argues that “Husband has taken the position in a letter from counsel, his answer to Wife’s petition to enforce a nd his testimony herein, that he had no further obligation to Wife; this not withstanding that for years Husband has negotiated the further amount due Wife, acknowledging such debt and interest owing for such debt.” Wife’s Bri ef at 39-40. This argument, however, ignores the well settled princip le that settlement negotiations do not toll the statute of limitations

. Nesbitt v. Erie Coach Company , 204 A.2d 473 (Pa. 1964). To the extent that Wife relies on Nesbitt

for the proposition that “if through fraud or conc ealment the defendant causes the plaintiff to relax his vigilan ce or deviate from his right

____________________________________________ 9 The record reflects that Husband testified at the petition to enforce hearing that he received $2.6 million in cash for the Busin ess-1 stock and a stay bonus. He stated the common shares he held in Busin ess-1 on August 22, 2003, had a value of $850,000 on January 22, 2004. See N.T., 3/20/2012, at 293.J-A16034-14

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of inquiry, the defendant is estopped from invoking the bar of limitation of action,” 10 we conclude, based upon our rejection of Wife’s co ncealment arguments, that Nesbitt has no application to the present case. Therefore , we find Wife’s argument that the statute of limitat ions was tolled by Husband’s concealment and settlement negotiations p resents no basis upon which to disturb the trial court’s decision. In addition, Wife asserts that Husband’s acknowledg ement of his obligation to Wife precluded Husband’s statute of l imitation defense. Pursuant to the “acknowledgement doctrine,” a statu te of limitations may be tolled or its bar removed by a p romise to pay the debt. A clear, distinct and unequivocal acknowledgement o f a debt as an existing obligation, such as is consiste nt with a promise to pay, is sufficient to toll the statute. There must, however, be no uncertainty either in the acknowledgement or in the identification of the deb t; and the acknowledgement must be plainly referable to th e very debt upon which the action is based; and also must be consistent with a promise to pay on demand and n ot accompanied by other expressions indicating a mere willingness to pay at a future time. A simple declaration of an intention to discharge an obligation is not the equivalent of a promise to pa y, but is more in the nature of a desire to do so, fro m which there is no implication of a promise. Huntingdon Fin. Corp. v. Newtown Artesian Water Co. , 659 A.2d 1052, 1054 (Pa. Super. 1995) (citations omitted) (emphasi s added).

____________________________________________ 10 Nesbitt, supra , 204 A.2d at 475 (citations omitted).J-A16034-14

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Contrary to Wife’s claim, the record fails to show that Husband acknowledged a debt to Wife. Here, Wife, on Novemb er 20, 2007, sent an email to Husband in which she stated that she would be willing to accept $200,000 to resolve the outstanding equitable distr ibution claims. Husband’s Exhibit 24; N.T., 3/20/2012, at 215–226. Subsequently, Husband emailed Wife on May 27, 2009, stating “I ju st want to verify that the final payment of $200,000 (plus an interest amo unt accruing from last spring which we still need to specify and agree upo n) will complete the payments under our settlement agreement. Please ve rify this so I can give you a check this evening.” Husband’s Exhibit 29; N .T., 3/20/2012, at 230. Husband’s willingness to accept Wife’s proposal was not the acknowledgement of a debt. Husband had maintained that he had overpaid Wife. 11 Nor was there a promise to pay $200,000 on demand . Husband’s

____________________________________________ 11 Following Husband’s May 27, 2007, email, Wife emai led Husband on May 28, 2009, seeking to condition the $200,000 payment upon “authorization if ever needed to review the appropriate documents,” a nd Husband answered, We need to discuss then. You can have access to wh atever information you want and we can then determine what is owed under the Settlement Agreement. As you know, we hav e different perspectives on what that may be. My per spective is that I have paid more than my obligation – your pos ition is that I have paid less. As part of a proposed settlement t o get everything resolved, you and [your attorney] presen ted to me this dollar amount ($200,000) and said let’s call i t complete — (Footnote Continued Next Page)J-A16034-14

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response asking Wife “to verify that the final paym ent of $200,000 ... will complete the payments” was a settlement negotiation – “a simple declaration of an intention to discharge an obligat ion,” 12 which is not the equivalent of a promise to pay. Accordingly, the s tatute of limitations was not tolled where Husband did not acknowledge a debt to Wife. Finally, Wife claims that the trial court erred in ruling that Husband’s laches defense barred Wife’s action to enforce the parties’ equitable distribution agreement. “The doctrine of laches is applicable when two cond itions are satisfied: ‘the complaining party must be guilty of a want of due diligence in failing to assert his rights and the failure must have worked to the prejudice of the party seeking its application.’” In re Estate of Bowman , 797 A.2d 973, 977 (Pa. Super. 2002) (citation omitted)). Wife asserts that the parties’ agreement was a cont inuing contract, and therefore, the doctrine of laches cannot be app lied in this matter.

(Footnote Continued) _______________________ please remember that you and [your attorney] came u p with that number — not me.” Husband’s Exhibit 29; N.T., 3/20/2012, at 230, 232– 233.

12 Huntingdon Fin. Corp. v. Newtown Artesian Water Co., supra , 659 A.2d at 1054.J-A16034-14

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Furthermore, Wife contends that neither condition f or application of the doctrine of laches was met in this case. These arg uments fail. As discussed above, the parties’ equitable distribu tion agreement is not a continuing contract. Moreover, we conclude th at the trial court committed no error in finding that the conditions f or application of the laches defense were met in this case. See In re Estate of Bowman, supra . In this regard, we adopt the discussion of the trial c ourt as dispositive:

The Court finds that Wife’s actions in this matter invoke the doctrine of laches. The evidence shows that Hus band provided Wife in January 2005 the materials that ex plained the [Business-1] transaction. In February 2006 Husband offered to arrange a meeting between the transactional attorne y who helped effectuate the [Business-1] transaction and Wife to discuss the closing documents. (Husband’s Exhibit 9 ; Husband’s Exhibit 22). Wife’s counsel took advantage of this opportunity (although he refused to discuss the documents with either Husband or the transactional attorney) later that m onth. After two examinations of the [Business-1] closing docume nts performed by Wife and/or her agent, followed by Wif e’s consistent assertions that Husband owed her more mo ney under the Equitable Distribution Agreement, the Court fin ds that Wife did not exercise due diligence in the pursuit of he r claim by filing the present action five (5) years after these event s took place. The Court further finds that Husband was prejudiced by Wife’s actions because he made a $150,000 payment t o Wife under the pretenses that this amount would resolve the parties’ equitable distribution issues. Even though Husband believed that he paid Wife the correct amount due to her closely following the [Business-1] sale (a sum of $300,000), Husband paid Wife an additional $150,000 in September 2005 in an attempt to completely settle the matter. Wife, however, contin ued to pursue more funds under the Equitable Distribution Agreeme nt. This clearly prejudiced Husband because he believed that the payment of this amount to Wife would end their disp ute andJ-A16034-14

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quell the possibility of any further court action. If Wife sought to enforce her claims in a timely manner, it is likely that Husband would have withheld any payments to Wife and waited until the Court disposed of the conflict. Since the two prongs of the “doctrine of laches” te st have been met, Wife’s claims are properly barred by the doctrine of laches. Trial Court Opinion, 12/2/2013, at 27–28. Accordingly, we affirm.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/23/2014