Appeal from the Order September 25, 2013, Court of Common Pleas, Washington County, Civil Division at No. 2013-1209
Joseph D. Seletyn, Esq.
BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.
Appellant, Amy Huss ("Huss"), appeals from the trial court's grant of preliminary objections dismissing her action against Appellee, James P. Weaver ("Weaver"). In October 2008, Huss and Weaver entered into a contract (the "Agreement"), in which they agreed that if their relationship resulted in the birth of a child, Huss would have primary physical custody and Weaver would have specified visitation rights, and that if Weaver sought court modification of these terms he would pay Huss $10, 000 for each such attempt. The parties had a son in November 2010 and Weaver filed a complaint for custody in December 2010. Huss then filed a complaint alleging that Weaver has failed to abide by his contractual promise to make the required $10, 000 payments. The trial court dismissed Huss' complaint, ruling that the provision for $10, 000 payments was void as against public policy. For the reasons that follow, we reverse.
Huss filed her initial complaint on March 7, 2013, alleging a single count for breach of contract. In response to preliminary objections filed by Weaver, on April 19, 2013, Huss filed an amended complaint, adding causes of action for negligent misrepresentation and fraud. On May 7, 2013,
Weaver filed preliminary objections in the nature of demurrers to the amended complaint, asserting that the $10, 000 modification provision of the Agreement violates public policy and that the negligent misrepresentation and fraud causes of action are barred by the economic loss doctrine. On September 25, 2013, the trial court entered an order and opinion granting Weaver's preliminary objections and dismissing Huss' amended complaint with prejudice.
In her amended complaint, Huss alleges that the parties entered into the Agreement on October 17, 2008, that at that time Weaver was a practicing attorney with the law firm of Buchanan Ingersoll & Rooney in Pittsburgh, and that he had provided Huss with "legal representation in various legal matters." Amended Complaint, 10/17/2008, at ¶¶ 3-6. Huss further alleges that Weaver, along with a colleague at the Buchanan Ingersoll & Rooney law firm, drafted the Agreement. Id. at 5. For present purposes, the relevant provisions of the Agreement are as follows:
WHEREAS, currently [Huss] is a real estate agent capable of earning large commissions if she works excessive hours and [Weaver] is an attorney capable of earning a large salary; and
WHEREAS, in the event that [Huss] has a child or children of [Weaver] and the parties' relationship is ended by either party, whether or not the parties are married at the time of the termination of the relationship, the parties desire to set forth their agreement as to the custody of such child or children.
NOW THEREFORE the parties for and in consideration of the covenants contained in this Agreement, and intending to be legally bound thereby, agree as follows:
1. Custody. In the event that either [Weaver] or [Huss] terminates the relationship with the other, whether or not they are married at the time of such termination, the legal custody of any child by this Agreement shall be shared by [Weaver] and [Huss] shall have primary physical custody of such children. In the event such termination of the relationship occurs, [Weaver] agrees that he will not pursue full physical custody of any child by this agreement and further agrees that he will not attempt to use the fact that [Huss] must work excessive hours selling real estate in order to earn large commissions to pursue custody of such child or children.
2. Visitation. In the event that either [Weaver] or [Huss] terminates the relationship with the other, whether they are married at the time of such termination, [Weaver] shall be entitled to unsupervised visitation with any child by this Agreement as follows:
a. So long as the parties reside within 50 miles of one another, [Weaver] shall be entitled to every other weekend beginning at 7 p.m. Friday evening and ending 4 p.m. Sunday evening. [Weaver] agrees to be responsible for transportation.
b. In the event that the parties reside more than 50 miles from one another, [Weaver] shall be entitled to one month during the summer as agreed to by the parties.
c. [Huss] has the right to relocate out of state if she desires.
[Weaver] agrees that, regardless of any custody arrangement between the parties, [Weaver] waives any rights to pursue [Huss] for child support for any child. [Weaver] further agrees to pay [Huss] child support for any child or children to be agreed upon [by] the parties or determined by Domestic Relations.
4. Modification of Agreement.
This Agreement may only be modified or amended by the parties by a written instrument signed by both [Weaver] and [Huss]. The parties acknowledge that this Agreement may be modified or superseded by a court of competent jurisdiction. In the event that [Weaver] files a complaint, motion, petition or similar pleading seeking the modification or amendment of the custody and/or visitation provisions set forth herein, [Weaver] agrees to pay [Huss] $10, 000 for each modification or amendment sought.
5. Voluntary Agreement.
Each party understands that in the absence of this Agreement, as a matter of law, that he or she might be entitled to a greater level of custody or more visitation than is provided herein. Both parties acknowledge that they have read this Agreement carefully and thoroughly, and each considers the provisions of this Agreement to be fair, just and reasonable, and that they fully understand each of its provisions and are executing the same freely and voluntarily, without coercion or other compulsion.
Id. at ¶ 3 (Exhibit A) (emphasis added). Huss alleges that Weaver has breached the above-highlighted portion of the Agreement, since the birth of their son the parties have been "embroiled in litigation" regarding custody and visitation issues, that in those proceedings Weaver has filed numerous "complaints, motions, petitions, and/or similar pleadings, " and that he has failed and refused to pay her $10, 000 for each such filing. Id. at 9-12. Finally, Huss contends that Weaver, as her legal advisor, either negligently or intentionally misrepresented to her that she should enter into the Agreement, which "she in fact did not wish to enter, " and that in ...