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THEODORA A. ROSENBERG v. DAVID E. ROSENBERG. (TWO CASES) DAVID E. ROSENBERG V. THEODORA A. ROSENBERG (11/18/83)

filed: November 18, 1983.

THEODORA A. ROSENBERG, APPELLANT,
v.
DAVID E. ROSENBERG. (TWO CASES) DAVID E. ROSENBERG V. THEODORA A. ROSENBERG, APPELLANT. DAVID E. ROSENBERG, APPELLANT, V. THEODORA A. ROSENBERG. THEODORA A. ROSENBERG V. DAVID E. ROSENBERG, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County, Family Division, at No. D-2993 of 1975. Appeal from the Decree of the Court of Common Pleas of Allegheny County, Civil Division, at No. M-226 of 1976. Appeal from the Decree of the Court of Common Pleas of Allegheny County, Civil Division, at No. M-227 of 1976. Appeal from the Decree of the Court of Common Pleas of Allegheny County, Civil Division, at No. M-227 of 1976.Appeal from the Decree of the Court of Common Pleas of Allegheny County, Civil Division, at Nos. M-226 of 1976 and D-2993 of 1975.

COUNSEL

Stanley W. Greenfield, Pittsburgh, for Theodora A. Rosenberg.

Hilary Wedner Braun and Paul J. Leventon, Pittsburgh, for David E. Rosenberg.

Rowley, Popovich and Hoffman, JJ.

Author: Hoffman

[ 322 Pa. Super. Page 296]

This case involves several consolidated appeals from the lower court's determination of various claims arising from the parties' September, 1976 property settlement agreement. Finding no merit in the parties' numerous claims, we affirm the order and decrees of the court below.

On September 8, 1976, contemporaneous with their divorce, the parties, Mr. and Mrs. Rosenberg, entered into a detailed property settlement agreement. Three separate actions resulted. In mid-October Mrs. Rosenberg sought specific performance of the settlement agreement alleging that Mr. Rosenberg had failed to provide her with several items to which he had agreed in the settlement. Mr. Rosenberg counter-claimed averring Mrs. Rosenberg's anticipatory repudiation of the agreement because she had allegedly refused, contrary to the agreement, to vacate the parties' pre-divorce residence. Mr. Rosenberg then sought to enjoin Mrs. Rosenberg from remaining at the house. Finally, Mrs. Rosenberg petitioned for child support. After hearing the three cases together, the lower court found that Mrs. Rosenberg had anticipatorily breached the agreement, enjoined her from living in the residence, completely reinstated the September, 1976 agreement and ordered Mr.

[ 322 Pa. Super. Page 297]

Rosenberg to pay a retroactive amount of child support. Both parties have appealed that order.

Mrs. Rosenberg contends first that the lower court erred in refusing to admit evidence of Mr. Rosenberg's misrepresentations under the fraud exception to the parol evidence rule. We find no merit in this contention. "The parol evidence rule seeks to preserve the integrity of written agreements by refusing to permit the contracting parties to alter the import of their contract through the use of contemporaneous oral declarations." Rose v. Food Fair Stores, Inc., 437 Pa. 117, 120, 262 A.2d 851, 853 (1970). "[I]f the written agreement was intended by the parties to encompass the matter in dispute, then evidence of a contrary nature based upon an oral agreement at the time of the execution of the written agreement [is] barred in the absence of fraud, accident or mistake." Boyd Estate, 394 Pa. 225, 232, 146 A.2d 816, 820 (1958). The contracting parties may introduce evidence of fraudulent misrepresentations "to modify or avoid a written contract if it is averred and proven that they were omitted from the (complete) written contract by fraud, accident or mistake." Bardwell v. The Willis Co., 375 Pa. 503, 507, 100 A.2d 102, 104 (1953) (emphasis in original). Mrs. Rosenberg argues specifically that Mr. Rosenberg represented that in addition to the provisions in the written property agreement, he would provide her with a house (including renovations and furnishings) worth $250,000, vacations, summer camp for the children, a new car annually, and gasoline for the car. The lower court tentatively admitted the testimony but later determined that the alleged misrepresentations failed to embody the fraud necessary for an exception to the parol evidence rule.

Two pertinent portions of the parties' agreement are as follows:

PARAGRAPH ELEVENTH: . . . Further, subsequent to the closing of the purchase by the WIFE of such new residence, the HUSBAND and the WIFE will mutually agree as to ...


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