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SUSAN L. PICZON LOHMANN v. SEVERINO PICZON (01/30/85)

filed: January 30, 1985.

SUSAN L. PICZON LOHMANN, AS PARENT AND NATURAL GUARDIAN OF CHRISTOPHER PICZON AND ALEXANDER PICZON, MINORS, AND INDIVIDUALLY IN HER OWN RIGHT, APPELLANT,
v.
SEVERINO PICZON



No. 02683 Philadelphia 1983, Appeal from the Judgment entered in the Court of Common Pleas, Civil Division, of Lackawanna County at No. 10 January Term, 1979.

COUNSEL

William R. Lee, Scranton, for appellant.

Paul A. Barrett, Scranton, for appellee.

Wieand, Del Sole and Popovich, JJ.

Author: Popovich

[ 338 Pa. Super. Page 486]

This is an appeal from an order of the Court of Common Pleas of Lackawanna County which dismissed appellant's exceptions and entered a final decree. We affirm in part, reverse in part, and remand.

The instant appeal arises from an action in equity wherein appellant, Susan L. Piczon Lohmann, as parent and natural guardian of Christopher Piczon and Alexander Piczon, minors, and individually in her own right, sought to enforce the terms of a support agreement between appellant, Susan L. Piczon Lohmann, and appellee, Severino Piczon, her former husband, which agreement was entered into on February 4, 1976. After a hearing before a chancellor, appellant filed timely exceptions. This appeal followed the entry of a final order.

[ 338 Pa. Super. Page 487]

Pursuant to the terms of the agreement, appellee was obliged to pay to appellant, for the benefit of the parties' minor children, a sum equal to twenty-five percent of appellee's "net income after taxes". The action in equity centers upon the proper definition of this term. The alleged ambiguity of the phrase does not involve the term "income" but to what extent the modifier "net" reduces it. Appellant argues that the amount upon which the twenty-five percent is to be calculated (hereinafter referred to as "base amount") is exclusive of taxes and those expenses incurred by appellee in realizing his income, i.e. business expenses. Such a definition will result in a substantial underpayment commencing in 1977. Appellee, on the other hand, maintains that the base amount is exclusive of all taxes and deductions statutorily allowable, both business and personal. His calculations admit of underpayments in 1979 and 1980, but overpayments for the years 1976, 1977 and 1978. Therefore, both parties agree that taxes are to be excluded; the conflict centers on which, if any, of appellee's statutorily-allowed deductions will be excluded.

Appellant contends that the chancellor erred when he excluded parol evidence to explain the term "net income after taxes". We agree and would remand the proceedings to the lower court so that parol evidence may be admitted to clarify the term "net income after taxes".

We are mindful that where a term in a written contract is 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 (1981). In the instant case, we must inquire as to whether the intention of the parties can be reasonably ascertained from the language of the writing alone. (See De Witt v. Kaiser, 335 Pa. Super. 258, 484 A.2d 121 (1984)).

In De Witt v. Kaiser, this court held that parol evidence should be permitted where there is an ambiguous term. There, the threshold inquiry was whether such evidence was admissible for the purpose of clarifying the term "income"

[ 338 Pa. Super. Page 488]

    which was defined in the agreement but remained ambiguous. The parties disagreed as to whether the base amount, upon which payments to the wife were calculated, was exclusive of income from trusts. Wife-appellant offered to prove that her understanding at the time of contract formation was that such term included income from trusts of which her former husband was beneficiary.

The court noted:

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. ...


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