J-A23036-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

AGNES L. POLI,                              :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
               Appellee                     :
                                            :
                     v.                     :
                                            :
LAWRENCE A. POLI,                           :
                                            :
                Apellant                    :   No. 1989 WDA 2015

             Appeal from the Order Entered December 16, 2015,
             in the Court of Common Pleas of Allegheny County,
                  Family Court, at No(s): FD 04-005021-002

BEFORE: LAZARUS, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:             FILED NOVEMBER 17, 2016

      Lawrence A. Poli (Husband) appeals from the December 16, 2015,

order granting the petition for enforcement of equitable distribution order

filed by Agnes L. Poli (Wife). We affirm.

      Husband and Wife married in 1985 and separated in 2004.              On

September 20, 2004, Wife filed a complaint in divorce, seeking equitable

distribution of the parties’ assets.

            The parties had a two-day trial in 2007 on their economic
      claims before Master Patricia Miller (“Master Miller”), who issued
      a recommendation to which exceptions were filed. The Honorable
      Lawrence W. Kaplan disposed of said exceptions by remanding
      the matter to Master Miller.

            At issue on remand was the marital value of Husband’s
      interest in certain assets of his mother’s estate (“Estate”).
      Husband’s mother, Dolores M. Poli, died on April 21, 2001. The
      executrix and heirs of the Estate executed a settlement
      agreement (“Agreement”) in May 2002, wherein Husband, inter
      alia, was entitled to receive 50% of any real estate (“Real

*Retired Senior Judge assigned to the Superior Court.
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     Estate”) owned by the former Poli’s Restaurants, Inc. At the time
     of the Agreement, (i) Husband’s 50% interest in the Real Estate
     was valued at $435,000.00, and (ii) the total amount of assets
     Husband was expected to inherit was $844,676.00.

           On remand, Master Miller recommended that “[a]t the time
     of closing on the sale of [the Real Estate], [H]usband shall pay
     [W]ife $146,100, which is 50% of the marital increase in value.”
     Additional exceptions were filed to the recommendation, which
     the parties resolved via consent order with the Honorable Beth
     A. Lazzara on September 18, 2009 (“Consent Order”).

          The Consent Order provided, in pertinent part, as follows:

          A. [Husband] shall pay [Wife] the following amounts
          based on his net inheritance from his mother’s
          estate, the Estate of Dolores M. Poli ... ;

                a. $120,000 to [Wife], if his net inheritance is
                $400,000 or greater;

                b. $100,000 to [Wife], if his net inheritance is
                between $300,000-$399,000;

                c. $75,000 to [Wife], if his net inheritance is
                between $200,000-$299,000; and

                d. $50,000 to [Wife], if his net inheritance is
                less than $200,000.

          B. Said amount shall be paid by the Estate directly to
          [Wife] prior to [Husband], his successors or heirs,
          receiving from the Estate any and all distributions,
          inheritances, advances, and /or monies of any kind;
          ... .

          C. If [Husband’s] net inheritance is $50,000 or less,
          the Estate shall pay [Wife] as much as possible up to
          $50,000 from [Husband’s] inheritance; ... .

          D. [Husband] shall not sell, gift, assign, or otherwise
          transfer his inheritance from said Estate, whether
          gross or net; ....



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           F. If [Husband’s] net inheritance is less than
           $200,000, [Husband] shall pay [Wife] $50,000 even
           if his net inheritance is minimal or he has no
           inheritance ... .

            The Real Estate sold at a tax sale in 2013 for an amount
     almost equivalent to the taxes owed on the property. The Estate
     then closed on March 10, 2014, and by letter dated June 5,
     2014, Wife inquired into the status of Husband’s inheritance. By
     letter dated June 10, 2014, Wife was informed that Husband had
     not received any additional inheritance, apparently as a result of
     the failure to realize a profit from the sale of the Real Estate.

           On February 11, 2015, Wife filed a Petition for
     Enforcement of Equitable Distribution Order (“Petition”) seeking
     enforcement of the Consent Order. Wife requested payment in
     the amount of $120,000 because she believed, pursuant to the
     Agreement, that Husband’s inheritance exceeded $844,000.
     However, after conciliation with the Court on the Petition, Wife
     reduced the amount she sought to $50,000.

            The parties briefed the various issues presented by the
     Petition and subsequently appeared before [the trial c]ourt for a
     hearing on December 1, 2015. Following hearing, [the trial
     c]ourt granted the Petition, entering an order on December 16,
     2015 (the “Order”) that required Husband to pay Wife $50,000
     and $3,000 in counsel fees. Husband filed a timely appeal and
     Pa.R.A.P. 1925(b) statement from the Order. [The trial court
     then filed an opinion pursuant to Pa.R.A.P. 1925(a).]

Trial Court Opinion, 2/22/2016, at 1-4.

     Husband raises three issues for our review.

     I. Whether the trial court erred in granting wife’s petition to
     enforce equitable distribution order and in failing to grant
     husbands’ motion to dismiss.

     II. Whether the trial court erred in permitting the introduction of
     and relying on parol evidence.




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     III. Whether the trial court erred in failing to rule that Wife
     received her payment from Husband during the parties’ marriage
     when Husband received, and expended on the parties, amounts
     from his inheritance.

Husband’s Brief at 5 (trial court answers and unnecessary capitalization

omitted).

     We review these issues mindful of the following principles.

     It is well established that absent an abuse of discretion on the
     part of the trial court, we will not reverse an award of equitable
     distribution. [In addition,] when reviewing the record of the
     proceedings, we are guided by the fact that trial courts have
     broad equitable powers to effectuate [economic] justice and we
     will find an abuse of discretion only if the trial court misapplied
     the laws or failed to follow proper legal procedures. [Further,]
     the finder of fact is free to believe all, part, or none of the
     evidence and the Superior Court will not disturb the credibility
     determinations of the court below.

Lee v. Lee, 978 A.2d 380, 382-83 (Pa. Super. 2009) (quoting Anzalone v.

Anzalone, 835 A.2d 773, 780 (Pa. Super. 2003)).

    Husband’s first claim of error is multifold.        We begin with his

contentions that the trial court (1) misinterpreted the plain language of the

Consent Order and (2) erroneously held that it was a continuing contract;

thus, (3) “Wife’s enforcement action was untimely and barred by the statute

of limitations.” Husband’s Brief at 14-29. We note that resolution of these

issues necessarily requires discussion of Appellant’s second issue on appeal:

whether the court “erred in permitting the introduction of and relying on

parol evidence” in interpreting the Consent Decree. Husband’s Brief at 37-

39. We address these claims mindful of the following.



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           A court may construe or interpret a consent decree as it
     would a contract, but it has neither the power nor the authority
     to modify or vary the decree unless there has been fraud,
     accident or mistake ….

           It is well-established that the paramount goal of contract
     interpretation is to ascertain and give effect to the parties’
     intent. When the trier of fact has determined the intent of the
     parties to a contract, an appellate court will defer to that
     determination if it is supported by the evidence.

             When construing agreements involving clear and
     unambiguous terms, this Court need only examine the writing
     itself to give effect to the parties’ understanding. The court must
     construe the contract only as written and may not modify the
     plain meaning of the words under the guise of interpretation.
     When the terms of a written contract are clear, this Court will
     not rewrite it or give it a construction in conflict with the
     accepted and plain meaning of the language used. Conversely,
     when the language is ambiguous and the intentions 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.

            A contract is ambiguous if it is reasonably susceptible of
     different constructions and capable of being understood in more
     than one sense. The court must determine as a question of law
     whether the contract terms are clear or ambiguous. When acting
     as the trier of fact, the court also resolves relevant conflicting
     parol evidence as to what was intended by the ambiguous
     provisions, examining surrounding circumstances to ascertain
     the intent of the parities.

Lang v. Meske, 850 A.2d 737, 739–40 (Pa. Super. 2004) (citations and

quotation marks omitted).

     Further,

            [a] question regarding the application of the statute of
     limitations is a question of law. … Our standard of review over



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      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. However, we are
      bound by the trial court’s credibility determinations.

                                     ***

             The statute of limitations for contracts is four years. 42
      Pa.C.S. § 5525(a)(8). [T]he statute of limitations begins to run
      as soon as the right to institute and maintain a suit arises.
      However, [w]hen a contract is continuing, the statute of
      limitations will run either from the time the breach occurs or
      when the contract is terminated. The test of continuity, so as to
      take the case out of the operation of the statute of limitations, is
      to be determined by the answer to the question whether the
      services were performed under one continuous contract, whether
      express or implied, with no definite time fixed for payment, or
      were rendered under several separate contracts.

K.A.R. v. T.G.L., 107 A.3d 770, 775–76 (Pa. Super. 2014) (citations and

quotation marks omitted).

      Instantly, the trial court determined that the Consent Order was a

continuing contract on the basis that the unambiguous, plain language of the

document, specifically the term “net inheritance,” was evidence of the

parties intent that the sale of the Real Estate and closing of the Estate was

to be the triggering event for compliance with the Consent Order. Trial Court

Opinion, 2/22/2016, at 6-9.     Accordingly, the court concluded that Wife’s

petition, filed within four years of the date the Estate closed, was not barred

by the statute of limitations. The court explained its rationale as follows.

             The Consent Order is not reasonably susceptible to
      multiple interpretations. It is, therefore, not ambiguous. The
      Consent Order clearly states that Husband shall pay Wife
      differing amounts of money based upon “his net inheritance from



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     [his mother’s] estate.” It also clearly states that even if
     Husband’s net inheritance is minimal or zero, he must pay Wife
     $50,000. Consequently, the Consent Order’s plain language
     required Husband to make payments to Wife (i) pursuant to the
     sliding scale adopted therein and (ii) based upon his net
     inheritance, which could not be known until after the Real Estate
     sold and [the] estate closed.

           [The trial court] makes no finding on the actual value of
     Husband’s “net inheritance.” Wife, as set forth above, maintains
     that pursuant to the Consent Order’s terms she is entitled to
     $50,000. Husband does not dispute that amount. Instead, he
     contends that the four year statute of limitations applicable to
     contract actions bars Wife’s ability to enforce the Consent Order
     and collect any monies, including $50,000. According to
     Husband, Wife was required to seek enforcement of the Consent
     Order, which was entered in 2009, by 2013. Her Petition,
     presented in February 2015, is thus too late, Husband contends.
     Such an argument appears to be premised upon the notion that
     the value of Husband’s net inheritance was known at the time
     the parties entered into the Consent Order and that Wife,
     therefore, had no basis to wait until the Real Estate sold or [the]
     estate closed before she presented her Petition.

            The plain language of the Consent Order belies Husband’s
     position. Not only does the Consent Order’s use of “net
     inheritance,” rather than, for example, the “current valuation of
     Husband’s inheritance” or some other similar language, defeat
     Husband’s argument, but so too does the Consent Order’s use of
     a sliding payment schedule. If the parties were to simply use the
     estate’s or the Master’s, or some compromised value of
     Husband’s inheritance at the time of the Consent Order to
     determine Husband’s payment obligations to Wife, then they
     would have had no need to agree to an indefinite payment
     amount.

           The [trial c]ourt believes, and the plain language of the
     Consent Order supports, that, as set forth above, Husband’s net
     inheritance - i.e., his final or totally conclusive inheritance
     amount, which was the payment triggering event of the Consent
     Order - could not be known until after the Real Estate sold in
     2013 and [the] Estate closed in 2014. Only such an
     interpretation of “net inheritance” acknowledges the actual



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      meaning of those terms as well as the reality that the parties
      created a sliding, and indefinite, payment schedule for resolution
      of the exceptions to Master Miller’s recommendations. The
      Consent Order is thus a continuing contract, … and Wife was
      under no duty to present her Petition until after the Real Estate
      sold and the Estate closed, i.e., until after it could be determined
      what Husband’s net inheritance actually was. Because Wife
      presented the Petition within four years of those events, it was
      timely pursuant to 42 Pa.C.S. § 5525(a)(8).

Trial Court Opinion, 2/22/2016, at 6-8 (citations omitted).

      We find no error in the trial court’s conclusions that the unambiguous

the language of the Consent Order established both a sliding scale and a

triggering event for payment of Husband’s net inheritance. Accordingly, as

the duties of Husband were ongoing, the contract was properly classified as

“continuing” and the statute of limitations did not bar Wife’s claim. See

Miller v. Miller, 983 A.2d 736, 742 (Pa. Super. 2009) (finding that a

postnuptial separation agreement, which provided that husband was solely

responsible for the mortgage, taxes and insurance on the marital property

until it was sold, was a continuing contract).

      Related to the above analysis, in his second claim of error, Husband

alleges that the trial court erred in admitting and relying on parol evidence

to interpret the Consent Order. Specifically, Husband argues that, because

neither party argued that the Consent Order was ambiguous, the trial court

should not have permitted Wife to testify as to her understanding of the

meaning of “net inheritance,” Husband’s Brief at 38, nor should it have

permitted Wife to cross-examine Husband as to his understanding of the



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term, id. However, the trial court made clear that it found the language of

the Consent Order to be clear and, consequentially, did not rely on any parol

evidence in reaching its conclusion. Trial Court Opinion, 2/22/2015, at 8

(“Enforcing the plain language of the unambiguous Consent Order, i.e., a

continuing contract, was (i) appropriate under the circumstances, (ii) did not

violate any statute of limitation, and (iii) does not require the Court to rely

on any parol evidence.”). Accordingly, Husband’s argument to the contrary

is without merit and he is not entitled to relief on this issue.

      We turn to the fourth issue subsumed in Husband’s first claim of error:

that Wife’s enforcement action was precluded by the doctrine of laches.

Husband’s Brief at 29-34.

      The doctrine of laches is an equitable bar to the prosecution of
      stale claims and is the practical application of the maxim that
      those who sleep on their rights must awaken to the consequence
      that they have disappeared. The question of whether laches
      applies is a question of law; thus, we are not bound by the trial
      court’s decision on the issue. The question of laches itself,
      however, is factual and is determined by examining the
      circumstances of each case.

             We have outlined the parameters of the doctrine of laches
      as follows:

            Laches bars relief when the complaining party is
            guilty of want of due diligence in failing to promptly
            institute the action to the prejudice of another. Thus,
            in order to prevail on an assertion of laches,
            respondents must establish: a) a delay arising from
            petitioner’s failure to exercise due diligence; and, b)
            prejudice to the respondents resulting from the
            delay. Moreover, the question of laches is factual and




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            is determined by examining the circumstances of
            each case.

      Unlike the application of the statute of limitations, exercise of
      the doctrine of laches does not depend on a mechanical passage
      of time. Indeed, the doctrine of laches may bar a suit in equity
      where a comparable suit at law would not be barred by an
      analogous statute of limitations.

      Moreover,

            [t]he party asserting laches as a defense must
            present evidence demonstrating prejudice from the
            lapse of time. Such evidence may include
            establishing that a witness has died or become
            unavailable, that substantiating records were lost or
            destroyed, or that the defendant has changed his
            position in anticipation that the opposing party has
            waived his claims.

Fulton v. Fulton, 106 A.3d 127, 131 (Pa. Super. 2014) (citations and

quotation marks omitted).

      Consistent with his contention that the Consent Order was not a

continuing contract and was enforceable at the time it was entered, Husband

argues that laches applies herein because Wife knew in 2009 the amount of

Husband net inheritance yet “waited over five years and four plus months to

file her enforcement action.” Husband’s Brief at 31 (emphasis in original).

The trial court disagreed, stating as follows.

      Here, Husband’s net inheritance became known after the Real
      Estate’s sale in 2013 and the closing of [the] Estate in 2014.
      The [trial c]ourt does not believe that Wife, who made inquiry
      about the status of Husband’s inheritance less than three months
      after the Estate closed and presented the Petition less than one
      year after the Estate closed, improperly delayed in seeking
      enforcement of the Consent Order. Moreover, Husband has not



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      directed [the trial court] to any deceased or missing witness as a
      result of the timing of Wife’s Petition. Nor has he identified any
      missing records resulting from any alleged delay. He also failed
      to present credible testimony at the Hearing of some other type
      of prejudice he suffered by Wife’s presentation of the Petition in
      2015.

Trial Court Opinion, 2/22/2016, at 11.

      Accordingly, the court determined that Husband had failed to present

proof of a delay or prejudice such that laches would apply. We agree. As

previously stated, the valuation of Husband’s net inheritance, and calculation

of the applicable payment to Wife under the terms of the Consent Order,

could not be determined until sale of the Real Estate and closure of the

Estate.   The Estate closed on March 10, 2014, and Wife inquired into the

status of Husband’s inheritance on June 5, 2014. By letter dates June 10,

2014, Wife was informed as to the details of the sale.        Her petition to

enforce was filed eight months later, on February 11, 2015. We note that

Husband was under a duty to pay Wife her portion under the Consent Order

once the Estate was settled and failed to do so during those eight months.

Although we are not bound by the trial court’s determination, under these

circumstances, we cannot agree with Husband that Wife sat on her rights or

improperly delayed these proceedings.

      Moreover, we reject Husband’s argument that he was prejudiced.

Claiming Wife had tacitly agreed by “established conduct” that “she had

already received more than her share of his inheritance during the




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marriage,” Husband claims that he relied on Wife’s “inaction in ordering his

economic affairs and meeting his financial obligations over [the period from

the date the Consent Order was entered in September of 2009 until the

closure of the Estate], with no indication that Wife would seek to pursue this

particular claim.” Husband’s Brief at 32. The language of the Consent Order

belies these claims.   That it took a lengthy period of time to sell the Real

Estate and close the Estate (during which time Wife could not take action

under the terms of the Consent Order as Husband’s net inheritance was not

established) and that Husband did not during the ensuing four years make

appropriate arrangements to comply with the Consent Order once the Estate

was closed, does not serve to prejudice Husband such that laches applies.

Accordingly, we find no error in the conclusions of the trial court.

      We now address the final issue subsumed in Husband’s first claim of

error: that Wife’s enforcement action was precluded by the doctrine of

equitable estoppel. Husband’s Brief at 34-36.

      The doctrine of equitable estoppel requires proof that “a party by acts

or representation intentionally or through culpable negligence[ ] induce[d]

another to believe that certain facts exist and [that] the other justifiably

relie[d] and act[ed] upon such belief, so that the latter will be prejudiced if

the former is permitted to deny the existence of such facts.” Guerra v.

Redevelopment Auth. of City of Philadelphia, 27 A.3d 1284, 1290 (Pa.

Super. 2011) (citation omitted).



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     Instantly, Husband claims that he relied detrimentally on Wife’s

implied position that “she had received her share of Husband’s inheritance

during the parties’ marriage and … was not going to pursue any action

relating to the … Consent Order.” Husband’s Brief at 36. In support of his

argument, Husband cites to testimony elicited at the Enforcement Hearing

regarding the hearing before Master Miller, where Wife “presented evidence

to value the interest of the inheritance” and “took the position in that

proceeding that [Husband] had received his inheritance and that she is

entitled to any increase in value.” N.T., 12/1/2015, at 45. We are

unconvinced by the evidence upon which Husband relies. The Consent Order

was entered after the parties’ master hearings. If the parties had believed

the issue of Husband’s inheritance had been settled previously, the Consent

Order would not have been necessary. As explained above, Wife’s alleged

“inaction” was due to the fact that the triggering events for enforcement of

the Consent Order had yet to occur.      Accordingly, we find no error in the

trial court’s conclusion that Husband “did not adduce sufficient credible

testimony … to establish either that Wife induced him into believing he need

not comply with the Consent Order or that he relied on such inducement.”

Trial Court Opinion, 2/22/2016, at 10.

     Finally, we turn to Appellant’s third claim of error, that the trial court

erred in failing to rule that Wife received her $50,000 payment from

Husband   during   the   parties’   marriage.   Husband’s   Brief   at   39-40.



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Specifically, Husband claims that, during the marriage he liquidated his

interest in his mother’s IRA accounts (“the only money [he] actually received

from his inheritance”), which he used to meet the parties’ living expenses

during the marriage.    Id. at 40. Thus, he claims his obligation to Wife is

satisfied.

      We disagree.      Again, if Husband’s understanding of the parties’

financial dispute were correct, the Consent Order would have been

unnecessary.     Moreover, the Consent Order’s focus on Husband’s net

inheritance belies his argument herein.      Further, we note that Husband

admitted during the Enforcement Hearing that provision F of the Consent

Order awards Wife $50,000 in the event his inheritance is less than

$200,000 or if he receives no inheritance at all. Consent Order; N.T.,

12/1/2015, at 51. Accordingly, we discern no abuse of discretion in the trial

court’s findings on this issue.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/17/2016




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