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argued: July 12, 1984.


No. 00373 Philadelphia 1983, Appeal from the Order of the Court of Common Pleas, Civil Division, of Montgomery County at No. D-2020-81.


Harry C. Barbin, Rockledge, for appellant.

Joseph Feldman, Philadelphia, for appellee.

Wieand, Olszewski and Popovich, JJ.

Author: Popovich

[ 335 Pa. Super. Page 260]

This is an appeal from an order of the Court of Common Pleas of Montgomery County sustaining appellee's exceptions. On September 16, 1981, appellant, Kathrina Anne DeWitt, filed a complaint for support against her former husband, John P. Kaiser, appellee, averring that appellee had failed to pay her the entire amount due under a separation agreement entered into by the parties on November 16, 1979, and, further, that appellee had failed to provide her with a proper accounting of his income for the year 1980. On February 1, 1982, the parties filed a stipulation that the issue be reduced to an interpretation of the aforementioned separation agreement.

A hearing before a master was held on April 20, 1982, and the master filed findings of fact and conclusions of law and a recommended order on May 11, 1982, in appellant's favor. On the same day, the lower court entered an order approving the recommendations of the master and providing that the parties had 10 days to demand a hearing. Appellee thereupon filed exceptions to the order, and the Court ordered a hearing to be held de novo. A formal hearing was not held. On November 3, 1982, the parties appeared before the lower court judge who called for argument in chambers. After this meeting on January 6, 1983, the lower court judge sustained appellee's exceptions. This appeal followed, and we reverse.

The sole issue in this appeal*fn1 concerns the interpretation of one term of the agreement. According to appellant, "income", as used and defined in the agreement, includes all dividends and interest received by appellee whether outright or through the conduit of a trust. Appellee, however, urges that trust income is excluded when computing

[ 335 Pa. Super. Page 261]

    his "income".*fn2 If "income" includes receipts from trusts, the amount of support due appellant under the agreement would increase for the year 1980 and, possibly, for subsequent years.

The pertinent language of the separation agreement is as follows:

(ii) For purposes of this Paragraph C, the term "income " means cash receipts consisting of salary, dividends, and taxable and non-taxable interest, not reduced by depreciation or depletion, or losses from any trade or business. The term "income" also shall not include or be reduced by, as the case may be, capital gains or losses, the principal of gifts and inheritances, the separate income of a spouse in the event of Husband's remarriage, or various types of taxable income, including but not limited to income relating to grant of stock options, and/or stock purchase plans maintained by Husband's employer. Further, the term "income" shall not include the cost of goods sold and expenses associated with the production of income or similar items which enter into the computation of gross profit from any trade or business enterprise undertaken by Husband in any capacity.*fn3

Appellant attempts to elucidate the intent of the parties through the introduction of parol evidence, in particular, correspondence between the parties' attorneys during the period of negotiations prior to execution of the contract.

Therefore, the threshold inquiry is whether such evidence is admissible for the purpose of clarifying the term "income" as employed in the Separation Agreement. The lower court judge held that since the term income was unambiguous, such evidence was inadmissible or at least unnecessary. A property settlement agreement between

[ 335 Pa. Super. Page 262]

    husband and wife will be enforced by the courts in accordance with the same rules of law applying to determining the validity of contracts generally. Kleintop v. Kleintop, 291 Pa. Super. 491, 436 A.2d 223 (1981).

Where a term is defined in a contract and is, therefore, presumably unambiguous, no further interpretation is justified since if the meaning is clear from the express language of the agreement, judicial construction is unnecessary. Eannarino v. Eannarino, 294 Pa. Super. 81, 439 A.2d 760 (1982). In such a case, the parties' intent is to be gleaned from the face of the agreement.

We have said

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, 289 Pa. Super. 405, 433 A.2d 514, 515 (1981).*fn4

Concomitantly, 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. Castellucci v. Columbia Gas of Pennsylvania, Inc., 226 Pa. Super. 288, 310 A.2d 331 (1973). This is especially true in a case ...

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