J-A27025-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CRISTY CAUCHON LAKHMNA

v.

GAGANDEEP S. LAKHMNA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 984 EDA 2018

Appeal from the Order Entered March 19, 2018

In the Court of Common Pleas of Philadelphia County Family Court at 

No(s): 8517 September Term, 2012

BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

DISSENTING MEMORANDUM BY BOWES, J.: FILED APRIL 24, 2019

I believe the parties’ postnuptial agreement unambiguously 

contemplates that Wife will sell her unit in Husband’s building as soon as 

reasonably possible to effectuate the division of the parties’ assets. Further, 

I view Wife’s chosen course of action as contrary to her duty of good faith and 

fair dealing in the performance of her contractual duties. Therefore, I 

respectfully dissent. 

The Majority correctly states that our standard of review is de novo on 

issues of contract interpretation, and that our goal is to effectuate the intent 

of the parties. Majority Memorandum at 5. The Majority properly reiterates 

that, when the writing is unambiguous, we must ascertain the parties’ intent 

from the language of the contract alone, viewing the contract as a whole to 

give effect to all of its provisions. Id. at 5-6. However, in my view, the 
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Majority’s interpretation of the contract at issue is not consistent with the 

intent of the parties as evidenced from the contract as a whole. 

As our Supreme Court has stated, “in determining intent, we are mindful 

to examine the entire contract, taking into consideration the surrounding 

circumstances, the situation of the parties when the contract was made and 

the objects they apparently had in view and the nature of the subject matter.” 

Commonwealth by Shapiro v. UPMC, 188 A.3d 1122, 1131 (Pa. 2018) 

(cleaned up). Additionally, “every contract imposes upon each party a duty 

of good faith and fair dealing in its performance and its enforcement.” 

Stamerro v. Stamerro, 889 A.2d 1251, 1259 (Pa.Super. 2005) (cleaned up). 

A lack of requisite good faith is demonstrated by, inter alia, “evasion of the 

spirit of the bargain, lack of diligence and slacking off, willful rendering of 

imperfect performance, abuse of a power to specify terms, and interference 

with or failure to cooperate in the other party’s performance.” Id. (citation 

and internal quotation marks omitted). 

Moreover, “[i]n the absence of an express term, the doctrine of 

necessary implication may act to imply a requirement necessitated by reason 

and justice without which the intent of the parties is frustrated.” Id. (citation 

and internal quotation marks omitted). Pursuant to this doctrine,

the law will imply an agreement by the parties to a contract to do 

and perform those things that according to reason and justice they 

should do in order to carry out the purpose for which the contract 

was made and to refrain from doing anything that would destroy 

or injure the other party’s right to receive the fruits of the 

contract.
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Id. (citation and internal quotation marks omitted). Although implied duties 

cannot defeat the express language of a contract, “[b]oth the implied 

covenant of good faith and the doctrine of necessary implication are principles 

for courts to harmonize the reasonable expectations of the parties with the 

intent of the contractors and the terms in their contract.” Id. (citation and 

internal quotation marks omitted). 

For example, in Stamerro, supra, the parties’ comprehensive marital 

settlement agreement provided, inter alia, that the husband would pay the 

wife $1,200 per week for ten years, and that the amount was nonmodifiable 

so long as his annual income was between $200,000 and $600,000. In the 

five years prior to execution of the agreement, husband had been earning 

between $350,000 and $400,000 per year. The next year, husband 

voluntarily left his employment and took a job with a company owned by his 

new wife and began earning $83,000 per year. Husband moved for reduction 

in the alimony payments, the trial court denied the request, husband 

appealed, and this Court affirmed. This Court applied the above principles to 

the facts of that case as follows.

the parties’ contract imposed a duty of good faith to perform 

contractual obligations diligently and honestly. Husband 

consented to pay [w]ife $1200.00 per week in alimony as long as 

his gross income did not go below $200,000.00. Husband 

conceded he was not fired from his lucrative employment . . . . 

Moreover, [h]usband presented no evidence of a companyimposed salary reduction to support his claim that his job was in 

jeopardy, due to lower sales volume and changes in the business 

environment. Husband should not be allowed to evade the spirit 
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or abuse the terms of the agreement by unilaterally and 

voluntarily reducing his income. To do so would destroy [w]ife’s 

right to receive the fruits of her bargained-for agreement. 

Similarly, the doctrine of necessary implication serves to 

prohibit [h]usband from voluntarily reducing his income. 

Although the agreement did not expressly state that [h]usband 

could seek a reduced alimony payment only upon an involuntary 

salary reduction, to infer otherwise would give [h]usband the 

power to unilaterally defeat the purpose for which the alimony 

agreement was made, and to destroy [w]ife’s right to receive the 

benefit of the support for which she bargained. To prevent this 

injustice, the trial court properly imputed this requirement into the 

contract.

Stamerro, supra at 1261-62 (citations omitted). 

I find this analysis highly instructive in interpreting the postnuptial 

agreement at issue in the case sub judice. The express purpose of the 

agreement was to divide the parties’ assets and debts, rather than have a 

court do so, to effectuate their “wish to live separately and apart from each 

other.” Postnuptial Agreement, 10/13/15, at 1, 3. The terms of the 

agreement evidence this desire to completely separate the parties’ debts and 

interests in various pieces of property. 

Under the agreement, Husband agreed to assume the only joint debt of 

the parties—$76,682.47 owed to American Express. Id. at 5. The three main 

joint assets addressed were the company 1808 Spruce Street, LLC, the real 

estate located at 1808 Spruce Street, and real estate located at 1216 S. 12th 

Street. The 1216 S. 12th Street property, valued at $126,000, was to be 

transferred to Wife following Husband’s satisfaction of an outstanding 

mortgage, after which Wife would forever hold Husband harmless for any 
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expense connected with the property. Id. at 8. Regarding the LLC, a 

company jointly owned by the parties with no designated value, Wife was to 

be removed as a member of the company and as a debtor on the mortgage 

incurred by it, after which Husband would forever hold Wife harmless for any 

expenses connected with the business. Id. at 6.

The remaining joint asset—the three units located at 1808 Spruce 

Street—was to be divided as follows.

7.3.1 1808 Spruce Street, Unit 3, Philadelphia, PA (appraised 

value of $1.3 million) shall be transferred to [Wife] in a 

fashion that minimizes the cost of the transfer. This 

property shall be transferred to [Wife] free and clear of any 

liens, mortgages, or encumbrances, with clear title and with 

a valid Certificate of Occupancy. [Husband] shall be 

responsible to arrange the transfer of title to [Wife] by 

October 26, 2015. Upon signing of this agreement, even 

prior to the transfer, [Wife] shall have exclusive decision 

making authority with regard to the current sale listing of 

this unit.

7.3.2 Upon[ ]a bona fide sale of 1808 Spruce Street, Unit 3, to a 

third party, the parties shall divide the net proceeds 70% to 

[Wife] and 30% to [Husband]. Net proceeds shall be 

defined as customary costs of sale including, but not limited 

to, Realtor fees and transfer taxes. No other expenses or 

mortgages or expenses shall be allowable as deduction to

the sales price. [Wife] shall have sole discretion regarding 

the sale of the property including, but not limited to, choice 

of Realtor and listing or sale price. Should the property not 

be sold until after [Husband]’s death, [Husband]’s share of 

the proceeds shall be placed in a trust for [the parties’ child]. 

This property shall not be sold for less than the [higher] of

the fair market value at the time of sale or $1,450,000.00.

7.3.3 [Husband] shall retain 1808 Spruce Street, Unit 1 

(appraised value [$]2.1 million) and Unit 2 (appraised value 

[$]1.2 million).
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Id. at 7 (emphasis added). 

The Majority concludes that this agreement does not require Wife to 

ever sell Unit 3 of the property. It opines that interpreting the contract to 

impose a duty upon Wife to follow through with the then-existing listing of 

Unit 3 for sale would be inconsistent with, and render null, the provisions 

indicating that Wife held a fee simple absolute in the property. Majority 

Memorandum at 6-7. The Majority cites Wife’s sole discretion in the listing of 

Unit 3, the lack of any provision prohibiting Wife from taking the property off 

the market, and the requirement that the property be sold at no less than 

$150,000 above the indicated appraised value, as indicative of the parties’ 

contemplation of “a possible indefinite delay in the sale[.]” Id. at 7. The 

Majority further finds support for its holding that “the agreement left open the 

possibility that a sale of the property, if it occurred at all, would take place at 

an indefinite time well into the future” in the fact that the contract addresses 

the possibility that the sale might not occur until after Husband’s death. My 

colleagues point to the lack of any indication “that Husband is of advanced 

age or terminally ill, and § 7.3.2 does not purport to apply in the event of 

Husband’s accidental or tragic death before the completion of a sale.” Id. at 

6. 

While there is no doubt that the postnuptial agreement contemplates 

that it may take some time for Wife to sell Unit 3 based upon the minimumsale-price requirement, I cannot agree with the Majority’s interpretation of the 
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contract to impose no duty upon Wife to make reasonable, sustained efforts 

to sell Unit 3, and rather to allow Wife to take the property off the market, 

potentially for the remainder of her life, and instead rent it to a third party. 

First, § 7.3.1 provides that Wife shall have exclusive decision making 

authority regarding the current listing of Unit 3. While “current” is not 

included in § 7.3.2 when Wife’s “sole discretion regarding the sale of the 

property” is again referenced, I do not view this as an indication that the sale 

need not move forward. Rather, because that reiteration is stated in 

connection with provisions excluding realtor fees from the calculation of net 

proceeds, the provision indicates that Wife’s decision to go with a realtor that 

may charge higher fees will not be counted against her in dividing the 

proceeds. The contract nonetheless expressly provides that efforts to sell Unit 

3 take place “current” with its execution.

Second, the fact that the agreement provides for the contingency that 

Husband is no longer living when the sale occurs, without acknowledging a

reason for Husband to expect his life to end in the near future, does not 

suggest that the parties intended for Wife to completely forgo a sale of Unit 

3. It is a sad fact of life that people die unexpectedly without warning. 

Knowing that this loose end of the sale of Unit 3 for at least $1.45 million is 

outside of his control, Husband’s desire to direct that his share be placed in 

trust for his child rather than pass through his estate, in the event that he 

suffered an untimely demise, is a reasonable precaution. It does not express 
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a willingness to allow Wife to willfully deprive Husband of his 30% share of 

$435,000 or more for the remainder of his life through her intentional act of 

making no effort at all to exercise her discretion in choosing a realtor to 

effectuate the sale. 

Third, I fail to read an acquiescence to indefinite delay in the fact that 

the minimum sale price of Unit 3 must be 10% above the appraised value 

stated in the contract. The Majority cites nothing in the record to indicate 

when the appraisal was done. Hence, we do not know if that value was 

indicative of the market value at the time of the agreement as opposed to the 

value as of the date of separation for purposes of equitably distributing the 

parties’ property. In any event, I cannot conclude as the Majority does that 

this difference in values absolves Wife of any obligation to make reasonable 

efforts to complete the expressly-contemplated current sale of Unit 3.

Finally, granting Wife a fee simple absolute in Unit 3, and allowing her 

to take a mortgage on the property pending its sale, is not inconsistent with 

Wife’s agreement to follow through with the sale of her property. The parties 

could not sell Unit 3 without the type of continued interactions that they 

expressly sought to minimize unless the property was placed in one party’s 

name or the other. As the sale of Unit 3 was designed to provide Wife with 

the majority of her share of the distribution of marital assets, it is logical that 

the property was placed in her name to give her control over obtaining and 
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maximizing her 70% share of the net proceeds. What does not logically follow 

is that Wife use her control to deprive Husband of his 30% of Unit 3’s value.

The parties expressed their desire to separate their lives and divide their 

property. They reached an agreement as to the division of marital property 

and debts, with Husband assuming the only enumerated joint debt, and the 

assets divided between them. Husband’s 30% share of Unit 3’s value is a 

significant portion of the assets that Wife agreed would belong to him. 

Therefore, while the agreement does not state a date by which Wife must sell 

Unit 3, nor provide that Wife may not keep it rather than sell it, I would hold 

that §§ 7.3.1 and 7.3.2 unambiguously intend that Wife maintain the thencurrent efforts to sell Unit 3, albeit with any realtor and listing specifics of her 

choosing. 

Further, I would apply the reasoning of Stamerro, supra to interpret 

the contract to require Wife to make good faith efforts to sell Unit 3 within a 

reasonable time.1 Just as the husband in Stamerro could not take advantage 

of the absence of express language forbidding his voluntary reduction in 

income to avoid his agreement to pay alimony, Wife cannot realize her share 

of the value of Unit 3 through a mortgage and rental while unilaterally and 

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1 See, e.g., Francis Gerard Janson, P.C. v. Frost, 618 A.2d 1003, 1006 

(Pa.Super. 1993) (“[I]t is the general rule that where no time is agreed upon 

for the completion of a contract, it must be completed within a reasonable 

time under all the circumstances[.]”). 
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purposefully depriving Husband of the benefit of his bargain. As the Majority’s 

interpretation allows Wife to do so,

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I must respectfully dissent.

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2 To be clear, I would hold Wife is required to keep the Unit 3 on the market 

for sale. Lease of the property is contrary to her contractual obligations only 

to the extent that a lease would interfere with her ability to complete a sale; 

short-term rental, with the lessee’s understanding that the property could be 

shown or sold at any time, would not be impermissible. Likewise, obtaining a 

mortgage on the property that would be satisfied upon the sale of Unit 3 would 

not be in conflict with Wife’s duty to make good-faith efforts to secure a buyer 

and complete the sale.