NICHOLAS ANDREWS v. CROSS ATLANTIC CAPITAL PARTNERS INC

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Superior Court of Pennsylvania.

NICHOLAS D. ANDREWS Appellant v. CROSS ATLANTIC CAPITAL PARTNERS, INC.

NICHOLAS D. ANDREWS Appellant v. DONALD R. CALDWELL

NICHOLAS D. ANDREWS v. CROSS ATLANTIC CAPITAL PARTNERS, INC. Appellant

NICHOLAS D. ANDREWS v. DONALD R. CALDWELL Appellant

NICHOLAS D. ANDREWS Appellant v. CROSS ATLANTIC CAPITAL PARTNERS, INC.

NICHOLAS D. ANDREWS Appellant v. DONALD R. CALDWELL

J-E02005-16

Decided: March 21, 2017

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., OTT, J., and DUBOW, J.

I respectfully dissent from the majority's disposition in this matter. I agree with Cross Atlantic Capital Partners, Inc. (“Cross Atlantic”) and Donald Caldwell (collectively “Appellants”) that the statute of limitations had expired when this action was instituted. I would therefore reverse the judgment entered against Appellants and order entry of judgment in favor of Appellants as to all claims raised by Nicholas D. Andrews (“Andrews”).

The relevant facts are as follows. Cross Atlantic is a private equity firm raising money from institutional investors and placing it in investment funds. Each fund purchases equity interests in companies that are viewed as having potential profitability and that are known as portfolio companies. The funds are organized as limited partnerships with Cross Atlantic acting as general partner. As general partner, Cross Atlantic operates as the investment manager, making investment decisions, selecting companies in which to invest, and offering advice to the portfolio companies. The limited partners are the investors who place their money in the fund.

The limited partners receive an ownership interest in each fund in return for their investments and are entitled to most of the profit since they bear the majority of the risk if the fund loses money. Cross Atlantic provides some infusion of capital into each fund, so it is entitled to a smaller percentage of profit than the limited partners and has a lower priority for receipt of any profits generated by a fund.

In 1999, Cross Atlantic formed an investment vehicle called the Technology Fund, L.P., which was designed to provide capital for technological companies. Although XATF Management, L.P. (“XATF”) was the Technology Fund's general partner, Cross Atlantic served as the general partner for XATF Management, L.P., as well as the investment manager of the Technology Fund. There were approximately one hundred limited partners in the Technology Fund, who provided approximately $114 million in funds while XATF invested an additional $6 million.

The plaintiff in this action, Andrews, began to work for Cross Atlantic as a principal on September 1, 1999. Principals research prospective portfolio companies, conduct market research, and meet with the entrepreneurs running a company in which Cross Atlantic is contemplating investing funds under its control. Principals do not have an ownership interest either in Cross Atlantic or in any investment fund managed by Cross Atlantic. Andrews' salary was $125,000, with the potential for a bonus of $75,000 at the end of his first year. While employed there, Andrews researched and recommended GAIN Capital as a portfolio company in which the Technology Fund would invest, and thereafter, he negotiated a $2.5 million investment by Cross Atlantic in GAIN in return for a 22.75% stock ownership interest by Cross Atlantic.

Approximately nine months after he was hired, Andrews was informed that he was not going to be promoted to partner, and he resigned shortly thereafter, on June 1, 2000. Andrews received three months' salary and a $75,000 payment representing the bonus that he would have earned had he stayed at Cross Atlantic until September 1, 2000. Pertinent to this matter is paragraph five of the Separation Agreement (“Agreement”) entered into between Cross Atlantic and Andrews on July 5, 2000. Cross Atlantic agreed therein that Andrews was entitled to a portion of the Technology Fund's carried interest, as follows:

By the end of this Severance Period, you will have vested one year of service towards 1.0% of carried interest in CACP Technology Fund, L.P. and 0.5% carried interest in The Co-Investment 2000 Fund, L.P. Therefore, you will receive 0.2% and 0.1 % carried interest as your earned and vested carry in CACP Technology Fund, L.P. and The Co-Investment 2000 Fund, L.P., respectively. In addition, as special consideration for your effort put forth on GAIN Capital, we will offer you a full 1.0% and 0.5% carried interest on that particular transaction to be earned, paid and distributed at such time that the distribution is made to all other Limited Partners of the funds. Distributions of your participation in these carried interests will be in all cases identical to what you would have received if still employed by the funds.

The contract did not define carried interest.

On September 3, 2003, Andrews read a press release indicating that some GAIN shareholders had sold a portion of their shares. On September 4, 2003, Andrews sent Cross Atlantic's Chief Financial Officer, Brian Adamsky, an email about whether the Technology Fund was one of the shareholders that sold GAIN stock:

I saw the press release for Gain's [deal] with Tudor on VentureWire, and noticed in Mark's quote a reference to ‘liquidity to existing shareholders'. Did XATF sell some or all of its position into the round? If so, the sale would trigger an obligation under my separation agreement, so please advise as to the amount and timing of payment to me.

Plaintiff's Exhibit 6 (emphasis added). Thus, Andrews conveyed his belief that he was entitled to a percentage of the proceeds from any sale of GAIN shares by XATF.

Later that same day, Cross Atlantic's president, Glenn Rieger, expressed Cross Atlantic's position that it disagreed with Andrews' interpretation of the language in the separation agreement:

Nick - It has been a while, I hope all is well! GAIN has made a lot of progress since your resignation from CACP, and continues to be one of our better performing companies. As we were putting this transaction together with Tudor I had in the back of my mind our contractual obligations to you. Believe me if l felt there was an obligation to payout to you, I would be the first to contact you because that would mean a payout to me as well. The $10MM deal with Tudor was a series C round with all but $1MM being used to redeem common A & B stock. Mark is the largest recipient in the group clearing over $6 MM personally. XATF is receiving $1.1 MM to be distributed to its [limited partners] while retaining between 18.8-19.4% ownership based on an EBITDA [1] ratchet that will not be finalized until 12/31/04. The operative sentence of your agreement is the last sentence of paragraph #5 –“Distributions of your participation in these carried interests will be in all cases identical to what you would have received if still employed by the funds.” Since XATF is not into its carry at this time, there is no distribution to the GP under the carry provision of the Partnership Agreement and hence, no distribution to any employees/partners/others from the GP as a result of this transaction. I will keep you posted on the outcome of the fund as it may relate to any carry as those events occur.

Plaintiff's Exhibit 6 (emphasis added). A few days later, on September 9th, Andrews sent Rieger the following email:

I went over to my storage place and dug out the separation agreement and my attendant materials, and in reading the file confirmed that we have a genuine disagreement about the

The relevant facts are as follows. Cross Atlantic is a private equity firm raising money from institutional investors and placing it in investment funds. Each fund purchases equity interests in companies that are viewed as having potential profitability and that are known as portfolio companies. The funds are organized as limited partnerships with Cross Atlantic acting as general partner. As general partner, Cross Atlantic operates as the investment manager, making investment decisions, selecting companies in which to invest, and offering advice to the portfolio companies. The limited partners are the investors who place their money in the fund.

The limited partners receive an ownership interest in each fund in return for their investments and are entitled to most of the profit since they bear the majority of the risk if the fund loses money. Cross Atlantic provides some infusion of capital into each fund, so it is entitled to a smaller percentage of profit than the limited partners and has a lower priority for receipt of any profits generated by a fund.

In 1999, Cross Atlantic formed an investment vehicle called the Technology Fund, L.P., which was designed to provide capital for technological companies. Although XATF Management, L.P. (“XATF”) was the Technology Fund's general partner, Cross Atlantic served as the general partner for XATF Management, L.P., as well as the investment manager of the Technology Fund. There were approximately one hundred limited

Andrews decided not to sue in 2003 for the $11,000 to which he claimed entitlement because the amount was too small. N.T. Trial, 8/26/13, at 130 (“On a cost benefit basis, hiring a attorney to recover $11,000 didn't make sense”). In the ensuing years, Andrews followed GAIN's financial progress, reading press releases and searching the internet. N.T. Trial, 8/27/13, at 86-87. One press release indicated that Cross Atlantic was among shareholders receiving a distribution of funds from GAIN. Id. at 91.

In December 2010, seven years after the email exchange wherein the parties set forth their positions about the meaning of “carried interest” on GAIN distributions in paragraph five, Andrews inquired about the Technology Fund. Mr. Adamsky sent Andrews the available financial data about that Fund, including distributions it received from GAIN. He also stated that Cross Atlantic would let Andrews know if there were any changes in the fund that would trigger an allocation to Andrews. Sales of the Technology Fund's shares in GAIN resulted in six distributions of the following amounts on the following dates:

September 10, 2003: $ 1,090,381 April 4, 2006: $10,000,004 January 14, 2008: $42,433,651 December 21, 2010: $14,993,616 March 15, 2012: $ 3,666,451 February 13, 2013: $ 3,128,423 Aggregate distributions: $75,311,526

N.T. Trial, 8/28/13, at 36-38. The un-contradicted evidence was that all these distributions repaid capital contributions and preferred interest to the Fund's investors. Id. at 44.

Andrews filed this lawsuit in 2011, alleging breach of contract against Cross Atlantic and a violation of the Wage Payment Collection Law (“WPCL”) against Cross Atlantic and Mr. Caldwell, Cross Atlantic's Chief Executive Officer. He claimed, as outlined in his September 2003 email, that the term “carried interest” as to GAIN distributions meant any amount received by GAIN. He averred that he was entitled to one percent of all GAIN distributions, or approximately $750,000.

Appellants countered that the action was barred by the statute of limitations. The trial court agreed as to the September 2003 distribution, but, under a set of special interrogatories, allowed the jury to decide whether Andrews was entitled to one percent of 2006-2013 distributions made to GAIN shareholders. The jury returned a verdict of $742,221.45 against Appellants. The court added prejudgment interest and attorney's fees to the award, and, after Appellants' timely post-trial motion was denied, judgment was entered against them in the amount of $1,216,617.70. On appeal, Appellants maintain that the statute of limitations prevented recovery herein, and I agree.

I first address the majority's position that Appellants' statute of limitations defense is waived. Appellants preserved this defense at every stage of the proceeding. In their answer to Andrews' complaint, they claimed that this action was barred by the applicable statute of limitations in that Andrews knew that he had the right to sue more than four years prior to instituting this lawsuit. Answer With New Matter, 10/14/11, at ¶¶33-34. Appellants then moved for summary judgment. Their first legal position was that Andrews' claims were barred by the applicable statute of limitations. Motion for Summary Judgment, 12/14/12, at 16. They argued that the claims raised herein arose “no later than 2003, when distributions had been made to limited partners related to [Cross Atlantic's] GAIN Capital Investment and no distributions were made to [Andrews] despite his demand for payment under paragraph 5 of the Separation Agreement.” Id. at ¶ 66. In its summary-judgment argument as to the statute of limitations, Appellants relied upon the September 2003 email exchange, wherein the parties unambiguously set forth their conflicting interpretations of the language in paragraph five of the Agreement, and Appellants observed that Andrews did not bring an action to assert his right to payment thereunder until 2011.2 Appellants noted that, at his deposition, Andrews admitted that he knew about the GAIN distributions as they were occurring. Deposition of Nicholas D. Andrews, 6/15/12, at 93-95. Thus, Andrews had to commence this lawsuit by September 2006, in order to recover under the WPCL and by September 2007 for his breach-of-contract count to be timely. Appellants were denied summary judgment.

At the close of Andrews' case, Appellants moved for nonsuit, and, among other reasons, submitted that Andrews did not meet his burden of proof on the statute of limitations. N.T. Trial, 8/28/13, at 72. They argued that Andrews knew about his claims against them in September 2003, when he admittedly was aware that GAIN distributions were being made and that Appellants did not agree that he was entitled to a share of those distributions under paragraph five. Id. at 73. Appellants maintained that “it was unequivocal in 2003 that Cross Atlantic would not honor [its] obligation at that time. [Andrews] knew he had a claim. There had been an actual breach at that point, according to [Andrews'] interpretation. He believed he was owed $11,000, one percent of the distribution that was made.” Id. at 73-74. Under Andrews' construction, they continued, there was an actual breach of the contract by them in 2003 when they said they did not agree with his reading of paragraph five. The trial court rejected that position. Appellants leveled the identical argument when moving for a direct verdict. N.T. Trial, 8/30/13, at 3-5. The statute of limitations argument was raised in a post-trial motion and addressed by the trial court.

The majority's position is that the statute of limitations issue is waived because Appellants failed to use the words “absolute and unequivocal repudiation” of the Agreement in their 1925(b) statement. Majority's Opinion at 10. I must respectfully disagree with the majority's waiver position. Appellants consistently argued that the statutes of limitations expired because they repudiated Andrew's interpretation of paragraph five in 2003, more than four years prior to when he brought this lawsuit. Appellants' concise statement of errors complained of on appeal is replete with their position that the statutes of limitations had run on this lawsuit. In pertinent part they claimed:

1. The Court erred and/or abused its discretion in denying Defendants' Motion for Summary Judgment, Motion for Compulsory Non-Suit and/or Motion for Directed Verdict, and otherwise in failing to rule as a matter of law and/or direct or instruct the jury that all of Plaintiffs claims are barred by the applicable statutes of limitations.

a. The undisputed evidence established that the breach of contract occurred in this case in September 2003.

b. In September 2003, Plaintiff knew, or through the exercise of reasonable diligence should have known, that he had a claim against Defendants for breach of contract and violation of the Pennsylvania Wage Payment and Collection Law under his interpretation of paragraph 5 of the Separation Agreement, such that Plaintiff was required to commence this action no later than September 2006 (on the Wage Payment and Collection Law claim) and September 2007 (on the breach of contract claim).

d. By September 9, 2003, Plaintiff knew that because of Defendants' interpretation of paragraph 5 of the Separation Agreement, Defendants would not be paying him the amounts that Plaintiff believed were due to him at that time - or any additional amounts that might become due to him at any time thereafter - under his interpretation of paragraph 5 of the Separation Agreement.

e. The statute of limitations began to run at the latest on September 9, 2003, which is when Plaintiff wrote his email to Defendants showing that Plaintiff knew to a certainty that the payments that he sought under paragraph 5 of the Separation Agreement would not be made.

f. Plaintiff's breach of contract claim was predicated entirely on the theory that Defendants had misinterpreted paragraph 5 of the Separation Agreement in September 2003. Defendants' misinterpretation, if any, occurred by September 9, 2003, and simply was applied consistently thereafter, hence if Defendants' interpretation of the Separation Agreement was wrong, there was only one error, and only one breach of the Separation Agreement, which breach occurred on September 9, 2003 and continued through to the date of trial.

g. That Defendants made no subsequent payments to Plaintiff was the natural consequence of Cross Atlantic's September 4, 2003 statement of its position that Plaintiff believed to be a breach of the Separation Agreement. Each additional instance of nonpayment was not a separate breach; rather each instance was a mere continuation of the initial breach.

Concise Statement of Errors Complained of on Appeal at 1-4 (emphases added). This language is precisely Appellants' position in this appeal, and, exactly mirrors Appellants' statute of limitations defense throughout this lawsuit. I simply cannot reconcile the majority's waiver position with the procedural history of this case.

I now address Appellants' position that this lawsuit is barred due to the expiration of the applicable statutes of limitations. The issue of whether the “the statute of limitations has run on a claim is a question of law[.]” Fine v. Checcio, 870 A.2d 850, 859 (Pa. 2005). “Our standard of review over questions of law is de novo and to the extent necessary, the scope of our review is plenary as the appellate court may review the entire record in making its decision.” Stamerro v. Stamerro, 889 A.2d 1251, 1257 (Pa.Super. 2005) (citation omitted). It is established that, “The Judicial Code provides in pertinent part that limitations periods are computed from the time the cause of action accrued. 42 Pa.C.S. § 5502(a). In Pennsylvania, “a cause of action accrues when the plaintiff could have first maintained the action to a successful conclusion.” Fine, supra at 857. Thus, “the statute of limitations begins to run as soon as the right to institute and maintain a suit arises, [and o]nce a cause of action has accrued and the prescribed statutory period has run, an injured party is barred from bringing his cause of action.” Id.

In 2401 Pennsylvania Ave. Corp. v. Fed'n of Jewish Agencies of Greater Philadelphia, 89 A.2d 733, 742 (Pa. 1985) (footnote omitted), our Supreme Court articulated, “Pennsylvania has long recognized that an anticipatory repudiation by an obligor to a contract gives the obligee the immediate right to sue for breach of contract[.]” Thus, a breach of contract case accrues when one party to an agreement has repudiated or renounced a contract. Weinglass v. Gibson, 155 A. 439 (Pa. 1931). Simply put, the anticipatory repudiation of a contract accords the plaintiff an immediate right to sue for breach of contract. Id. “To be effective, a renunciation must be absolute and unequivocal.” Shafer v. A. I. T. S., Inc., 428 A.2d 152, 155 (Pa.Super. 1981). In other words, a contractual breach occurs when there is “an absolute and unequivocal refusal to perform or a distinct and positive statement of an inability to do so.” 2401 Pennsylvania Ave. Corp., supra at 736 (citation omitted).

More recently, in Harrison v. Cabot Oil & Gas Corp., 110 A.3d 178 (Pa. 2015), our High Court re-affirmed that Pennsylvania continues to apply the doctrine of repudiation. Therein, it held that the institution of a declaratory judgment action seeking interpretation of a contract would not constitute a repudiation. This ruling is, of course, logically consistent with the doctrine. Asking for a judicial construction of the contract would not be a rejection of the contract. By seeking a declaratory judgment, the party is acknowledging that it will abide by the court's construction of the contract in

Andrews decided not to sue in 2003 for the $11,000 to which he claimed entitlement because the amount was too small. N.T. Trial, 8/26/13, at 130 (“On a cost benefit basis, hiring a attorney to recover $11,000 didn't make sense”). In the ensuing years, Andrews followed GAIN's financial progress, reading press releases and searching the internet. N.T. Trial, 8/27/13, at 86-87. One press release indicated that Cross Atlantic was among shareholders receiving a distribution of funds from GAIN. Id. at 91.

In December 2010, seven years after the email exchange wherein the parties set forth their positions about the meaning of “carried interest” on GAIN distributions in paragraph five, Andrews inquired about the Technology Fund. Mr. Adamsky sent Andrews the available financial data about that Fund, including distributions it received from GAIN. He also stated that Cross Atlantic would let Andrews know if there were any changes in the fund that would trigger an allocation to Andrews. Sales of the Technology Fund's shares in GAIN resulted in six distributions of the following amounts on the following dates:

September 10, 2003: $ 1,090,381 April 4, 2006: $10,000,004 January 14, 2008: $42,433,651 December 21, 2010: $14,993,616 March 15, 2012: $ 3,666,451 February 13, 2013: $ 3,128,423 Aggregate distributions: $75,311,526

N.T. Trial, 8/28/13, at 36-38. The un-contradicted evidence was that all these distributions repaid capital contributions and preferred interest to the Fund's investors. Id. at 44.

Andrews filed this lawsuit in 2011, alleging breach of contract against Cross Atlantic and a violation of the Wage Payment Collection Law (“WPCL”) against Cross Atlantic and Mr. Caldwell, Cross Atlantic's Chief Executive Officer. He claimed, as outlined in his September 2003 email, that the term “carried interest” as to GAIN distributions meant any amount received by GAIN. He averred that he was entitled to one percent of all GAIN distributions, or approximately $750,000.

Appellants countered that the action was barred by the statute of limitations. The trial court agreed as to the September 2003 distribution, but, under a set of special interrogatories, allowed the jury to decide whether Andrews was entitled to one percent of 2006-2013 distributions made to GAIN shareholders. The jury returned a verdict of $742,221.45 against Appellants. The court added prejudgment interest and attorney's fees to the award, and, after Appellants' timely post-trial motion was denied, judgment was entered against them in the amount of $1,216,617.70. On appeal, Appellants maintain that the statute of limitations prevented recovery herein, and I agree.

I first address the majority's position that Appellants' statute of limitations defense is waived. Appellants preserved this defense at every stage of the proceeding. In their answer to Andrews' complaint, they claimed that this action was barred by the applicable statute of limitations in that Andrews knew that he had the right to sue more than four years prior to instituting this lawsuit. Answer With New Matter, 10/14/11, at ¶¶33-34. Appellants then moved for summary judgment. Their first legal position was that Andrews' claims were barred by the applicable statute of limitations. Motion for Summary Judgment, 12/14/12, at 16. They argued that the claims raised herein arose “no later than 2003, when distributions had been made to limited partners related to [Cross Atlantic's] GAIN Capital Investment and no distributions were made to [Andrews] despite his demand for payment under paragraph 5 of the Separation Agreement.” Id. at ¶ 66. In its summary-judgment argument as to the statute of limitations, Appellants relied upon the September 2003 email exchange, wherein the parties unambiguously set forth their conflicting interpretations of the language in paragraph five of the Agreement, and Appellants observed that Andrews did not bring an action to assert his right to payment thereunder until 2011.2 Appellants noted that, at his deposition, Andrews admitted that he knew about the GAIN distributions as they were occurring. Deposition of Nicholas D. Andrews, 6/15/12, at 93-95. Thus, Andrews had to commence this lawsuit by September 2006, in order to recover under the WPCL and by September 2007 for his breach-of-contract count to be timely. Appellants were denied summary judgment.

At the close of Andrews' case, Appellants moved for nonsuit, and, among other reasons, submitted that Andrews did not meet his burden of proof on the statute of limitations. N.T. Trial, 8/28/13, at 72. They argued that Andrews knew about his claims against them in September 2003, when he admittedly was aware that GAIN distributions were being made and that Appellants did not agree that he was entitled to a share of those distributions under paragraph five. Id. at 73. Appellants maintained that “it was unequivocal in 2003 that Cross Atlantic would not honor [its] obligation at that time. [Andrews] knew he had a claim. There had been an actual breach at that point, according to [Andrews'] interpretation. He believed he was owed $11,000, one percent of the distribution that was made.” Id. at 73-74. Under Andrews' construction, they continued, there was an actual breach of the contract by them in 2003 when they said they did not agree with his reading of paragraph five. The trial court rejected that position. Appellants leveled the identical argument when moving for a direct verdict. N.T. Trial, 8/30/13, at 3-5. The statute of limitations argument was raised in a post-trial motion and addressed by the trial court.

The majority's position is that the statute of limitations issue is waived because Appellants failed to use the words “absolute and unequivocal repudiation” of the Agreement in their 1925(b) statement. Majority's Opinion at 10. I must respectfully disagree with the majority's waiver position. Appellants consistently argued that the statutes of limitations expired because they repudiated Andrew's interpretation of paragraph five in 2003, more than four years prior to when he brought this lawsuit. Appellants' concise statement of errors complained of on appeal is replete with their position that the statutes of limitations had run on this lawsuit. In pertinent part they claimed:

1. The Court erred and/or abused its discretion in denying Defendants' Motion for Summary Judgment, Motion for Compulsory Non-Suit and/or Motion for Directed Verdict, and otherwise in failing to rule as a matter of law and/or direct or instruct the jury that all of Plaintiffs claims are barred by the applicable statutes of limitations.

a. The undisputed evidence established that the breach of contract occurred in this case in September 2003.

b. In September 2003, Plaintiff knew, or through the exercise of reasonable diligence should have known, that he had a claim against Defendants for breach of contract and violation of the Pennsylvania Wage Payment and Collection Law under his interpretation of paragraph 5 of the Separation Agreement, such that Plaintiff was required to commence this action no later than September 2006 (on the Wage Payment and Collection Law claim) and September 2007 (on the breach of contract claim).

d. By September 9, 2003, Plaintiff knew that because of Defendants' interpretation of paragraph 5 of the Separation Agreement, Defendants would not be paying him the amounts that Plaintiff believed were due to him at that time - or any additional amounts that might become due to him at any time thereafter - under his interpretation of paragraph 5 of the Separation Agreement.

e. The statute of limitations began to run at the latest on September 9, 2003, which is when Plaintiff wrote his email to Defendants showing that Plaintiff knew to a certainty that the payments that he sought under paragraph 5 of the Separation Agreement would not be made.

f. Plaintiff's breach of contract claim was predicated entirely on the theory that Defendants had misinterpreted paragraph 5 of the Separation Agreement in September 2003. Defendants' misinterpretation, if any, occurred by September 9, 2003, and simply was applied consistently thereafter, hence if Defendants' interpretation of the Separation Agreement was wrong, there was only one error, and only one breach of the Separation Agreement, which breach occurred on September 9, 2003 and continued through to the date of trial.

g. That Defendants made no subsequent payments to Plaintiff was the natural consequence of Cross Atlantic's September 4, 2003 statement of its position that Plaintiff believed to be a breach of the Separation Agreement. Each additional instance of nonpayment was not a separate breach; rather each instance was a mere continuation of the initial breach.

Concise Statement of Errors Complained of on Appeal at 1-4 (emphases added). This language is precisely Appellants' position in this appeal, and, exactly mirrors Appellants' statute of limitations defense throughout this lawsuit. I simply cannot reconcile the majority's waiver position with the procedural history of this case.

I now address Appellants' position that this lawsuit is barred due to the expiration of the applicable statutes of limitations. The issue of whether the “the statute of limitations has run on a claim is a question of law[.]” Fine v. Checcio, 870 A.2d 850, 859 (Pa. 2005). “Our standard of review over questions of law is de novo and to the extent necessary, the scope of our review is plenary as the appellate court may review the entire record in making its decision.” Stamerro v. Stamerro, 889 A.2d 1251, 1257 (Pa.Super. 2005) (citation omitted). It is established that, “The Judicial Code provides in pertinent part that limitations periods are computed from the time the cause of action accrued. 42 Pa.C.S. § 5502(a). In Pennsylvania, “a cause of action accrues when the plaintiff could have first maintained the action to a successful conclusion.” Fine, supra at 857. Thus, “the statute of limitations begins to run as soon as the right to institute and maintain a suit arises, [and o]nce a cause of action has accrued and the prescribed statutory period has run, an injured party is barred from bringing his cause of action.” Id.

In 2401 Pennsylvania Ave. Corp. v. Fed'n of Jewish Agencies of Greater Philadelphia, 89 A.2d 733, 742 (Pa. 1985) (footnote omitted), our Supreme Court articulated, “Pennsylvania has long recognized that an anticipatory repudiation by an obligor to a contract gives the obligee the immediate right to sue for breach of contract[.]” Thus, a breach of contract case accrues when one party to an agreement has repudiated or renounced a contract. Weinglass v. Gibson, 155 A. 439 (Pa. 1931). Simply put, the anticipatory repudiation of a contract accords the plaintiff an immediate right to sue for breach of contract. Id. “To be effective, a renunciation must be absolute and unequivocal.” Shafer v. A. I. T. S., Inc., 428 A.2d 152, 155 (Pa.Super. 1981). In other words, a contractual breach occurs when there is “an absolute and unequivocal refusal to perform or a distinct and positive statement of an inability to do so.” 2401 Pennsylvania Ave. Corp., supra at 736 (citation omitted).

More recently, in Harrison v. Cabot Oil & Gas Corp., 110 A.3d 178 (Pa. 2015), our High Court re-affirmed that Pennsylvania continues to apply the doctrine of repudiation. Therein, it held that the institution of a declaratory judgment action seeking interpretation of a contract would not constitute a repudiation. This ruling is, of course, logically consistent with the doctrine. Asking for a judicial construction of the contract would not be a rejection of the contract. By seeking a declaratory judgment, the party is acknowledging that it will abide by the court's construction of the contract in Commission could have no cause of action until each allegedly improperly computed payment was made and, as to each such payment, a separate and distinct cause of action would accrue.” Id. at 892. That conclusion was logical because the oil company, unlike Cross Atlantic, never repudiated the contract. Also cf. Van Seiver v. Van Seiver, 12 A.2d 108, 110 (Pa. 1940) (separate statute ran for each deficient alimony payment, where deficiencies appeared to be unintentional, and there was no suggestion in Supreme Court's opinion that husband had repudiated his alimony obligations); Ritter v. Theodore Pendergrass Teddy Bear Prods., Inc., 514 A.2d 930, 935 (Pa.Super. 1986) (separate statute ran for each missed installment; no suggestion in this Court's opinion that defendant repudiated contract).3

As I believe that this action should be dismissed in its entirety, it is unnecessary in this dissent to address any of the positions raised in the cross-appeal.

For the foregoing reasons, I dissent from the majority's disposition herein. I would remand for entry of judgment in favor of Cross Atlantic Capital Partners, Inc. and Donald Caldwell and against Nicholas D. Andrews.

FOOTNOTES

1.   EBITDA is an acronym for “earnings before interest, taxes, depreciation and amortization.” Andrews does not claim that the reference to EBITDA helps his case, so I need not address it further.

2.   Andrews' cause of action under the WPCL is subject to a three-year statute of limitations, 43 P.S. § 260.9a(g) (footnote omitted) (“No administrative proceedings or legal action shall be instituted under the provisions of this act for the collection of unpaid wages or liquidated damages more than three years after the day on which such wages were due and payable as provided in sections 3 and 5.”). A four year statute of limitations applies to the breach of contract action. 42 Pa.C.S. § 5525(8) (“the following actions and proceedings must be commenced within four years ․ [a]n action upon a contract, obligation or liability founded upon a writing not specified in paragraph (7), under seal or otherwise, except an action subject to another limitation specified in this subchapter.”).

2.   Andrews' cause of action under the WPCL is subject to a three-year statute of limitations, 43 P.S. § 260.9a(g) (footnote omitted) (“No administrative proceedings or legal action shall be instituted under the provisions of this act for the collection of unpaid wages or liquidated damages more than three years after the day on which such wages were due and payable as provided in sections 3 and 5.”). A four year statute of limitations applies to the breach of contract action. 42 Pa.C.S. § 5525(8) (“the following actions and proceedings must be commenced within four years ․ [a]n action upon a contract, obligation or liability founded upon a writing not specified in paragraph (7), under seal or otherwise, except an action subject to another limitation specified in this subchapter.”).

3.   Moreover, even if this action was timely, I would reject Andrews' position that “carried interest,” as applied to distributions from GAIN, has a different meaning than how that term is employed in other portions of the separation agreement and than its ordinary meaning in the industry. As conceded by the majority in footnotes four and twelve, the words “carried interest” mean profits, i.e., money paid after a return of capital investment and preferred interest.When we interpret a contract, we must accord unambiguous language its ordinary meaning and give “effect to an entire document, if possible, and not only those portions supporting a specific conclusion.” Lenau v. Co-eXprise, Inc., 102 A.3d 423, 431 (Pa.Super. 2014) (emphasis in original). A “disagreement between the parties on the meaning of language or the proper construction of contract terms does not constitute ambiguity.” Id. (citation omitted). It is illogical to give the same words in an agreement a different meaning, but Andrews insists that “carried interest,” when applied to GAIN distributions, has a meaning different from how that term is used in the remainder of the contract. Additionally, Andrews' position is not consistent with the ordinary meaning of “carried interest,” which is profit paid after investment and preferred interest are satisfied. Under anyone's understanding of the word, “interest” cannot mean principal. Yet, the majority's holding gives Andrews a percentage of interest and principal when he clearly and unambiguously is entitled only to the former under the Agreement.

DISSENTING OPINION BY BOWES, J.:

Judge Shogan, Judge Olson and Judge Dubow join this dissenting opinion.