J-A26009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LAUREL BREUNER,                                  IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

STEVEN BREUNER,

                            Appellee                  No. 870 WDA 2015


                      Appeal from the Order May 12, 2015
               In the Court of Common Pleas of Allegheny County
                      Family Court at No(s): FD 08-007487


BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED DECEMBER 28, 2016

       Laurel Breuner (Wife) appeals from the May 12, 2015 order that

directed her and Steven Breuner (Husband) to each pay to Barbara C.

Breuner, as Trustee of the Barbara C. Breuner Survivor’s Trust, one-half of

an obligation due, which was previously determined to be a marital debt in

connection with Husband and Wife’s equitable distribution proceedings

relating to their divorce. After review, we affirm.

       In a prior appeal, this Court’s memorandum, dated June 24, 2014,

relied on an earlier trial court’s opinion, dated September 3, 2013, to

address the issue raised by Wife in that prior appeal.1 That memorandum

summarized in a parenthetical the trial court’s findings as follows:
____________________________________________


1
  Wife’s issue questioned “whether the trial court erred in concluding that an
alleged intra-family loan constituted a ‘marital debt’ subject to property
(Footnote Continued Next Page)
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      [P]arties agreed to 50/50 division of marital assets and debts; at
      July 12, 2012 hearing to determine whether $90,000.00 loan
      Husband’s father, Mr. [William] Breuner, made during parties’
      marriage constituted “marital debt,” court heard testimony from
      Mr. Breuner’s attorney, Mr. Breuner’s accountant, Husband, and
      Wife; Mr. Breuner’s attorney and Mr. Breuner’s accountant each
      confirmed Mr. Breuner’s loan and Mr. Breuner’s expectation that
      loan would be repaid; Mr. Breuner’s accountant also explained
      no payments had been made on loan at time of Mr. Breuner’s
      death, and Mr. Breuner had not forgiven loan; Husband testified
      he borrowed $90,000.00 from his parents to renovate marital
      home, Wife knew of loan, Wife thanked Husband’s parents for
      loan, and Wife arranged for further renovations after learning of
      loan; Wife claimed she did not know of loan until October 2011,
      and did not authorize loan; court found credible Husband’s
      evidence that Mr. Breuner made loan during parties’ marriage so
      they could renovate marital home, that both parties knew of
      loan, and that Husband and Wife used loan to finance home
      renovations; following July 12, 2012 hearing, court decided loan
      constituted marital debt subject to parties’ equitable distribution
      agreement; following Wife’s motion for reconsideration alleging
      “new” evidence, court expressly granted reconsideration and
      held reconsideration hearing on May 13, 2013; Husband made
      strong argument that Wife’s proposed evidence did not
      constitute “new” evidence to warrant reopening record;
      nevertheless, assuming arguendo Wife’s proposed evidence was
      “new,” Wife still failed to establish loan was not marital debt;
      parties’ contractor testified at reconsideration hearing that
      parties paid him for renovations to marital home from their
      business account; court found this evidence unpersuasive to
      demonstrate parties did not use loan proceeds to pay for
      renovations, where parties failed to meticulously differentiate
      between their business and personal accounts; regarding Wife’s
      attempt to impeach Husband’s testimony, court resolved
      inconsistency in testimony in favor of Husband; parties’
      execution of “waiver and release” concerning their business
      litigation does not release Wife from obligation to repay loan;
                       _______________________
(Footnote Continued)

distribution despite the absence of material evidence of consideration or any
marital benefit.” Breuner v. Breuner, No. 1262 WDA 2013, unpublished
memorandum at 2 (Pa. Super. filed June 24, 2014) (Breuner I).



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     parties used their business account to pay for renovations to
     marital home, but court deemed those renovations personal, and
     not business-related subject to “waiver and release”; $90,000.00
     loan is marital debt subject to parties’ 50/50 equitable
     distribution arrangement[].

Breuner I at 2-4.

     Our Breuner I decision affirmed the trial court’s decision, which had

concluded that,

     pursuant to Pennsylvania law[,] the $90,000 loan made to
     Husband on May 3, 2000 was marital debt, as it was accrued
     during the course of the marriage and was spent on
     improvements to the marital residence. As the parties agreed to
     a 50/50 division of the assets and debts of the marriage in this
     case, the $90,000 loan and any interest accrued on the loan,
     was deemed to be debt that would be subject to the same 50/50
     division as the other marital assets and debts.

Breuner v. Breuner, FD 08-007487 at 11 (Allegheny Cty. September 3,

2013).

     Following the conclusion of the first appeal in June of 2014, no

payments were made.      Therefore, on October 22, 2014, Husband filed a

petition seeking to collect $76,850.86, the amount which he claimed was

due plus interest that had accrued. Husband also claimed that his mother,

Barbara C. Breuner, “was the purported successor in interest to the note and

that she wished to be joined as a party to the divorce/enforcement

proceeding….” Wife’s brief at 9. In response to Husband’s petition, the trial

court issued an order, dated October 23, 2014, directing Wife to respond to

Husband’s petition. The court requested Wife to explain why she should not

be compelled to pay her portion of the outstanding balance of the loan; why



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the court should not award Husband counsel fees of $750; and why Barbara

should not be joined as a party to these proceedings pursuant to 23 Pa.C.S.

§ 1920.34. Trial Court Order, 10/23/14.

      On November 12, 2014, Wife filed preliminary objections to Husband’s

petition, questioning “Husband’s lack of standing to collect on the Note, the

lack of record evidence establishing that Barbara assumed the right to

collect under the Note following William’s death, the fact that Barbara had

not been joined in the divorce proceeding, and the running of the statute of

limitations on any person’s right to collect under the Note.” Wife’s brief at

10-11.   The parties presented argument to the trial court and, thereafter,

the court issued the order presently on appeal. Essentially, the court’s order

directed both Husband and Wife to each pay one-half of the principal and

interest due to Barbara as the trustee of the family trust within 60 days of

the date of the order.

      Wife appealed and filed a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). In response to Wife’s alleged errors

in her concise statement, the trial court explained that:

            It is difficult to see what can be added here to our opinion
      in the prior appeal in this case, or indeed to the Superior Court’s
      opinion at that time. It will suffice to say that all of the points in
      the concise statement of errors have already either been decided
      or waived, and the law of the case does not permit us to revisit
      them at this time.

            [Wife] complains that there was no hearing to determine a
      number of questions she raises about this debt, but forgets that
      the debt was addressed not merely at a hearing, but in a trial in


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     2012. That trial was followed by a dispositive order in January
     of 2013, which was appealed, and the Superior Court decided
     the matter, issuing an opinion. Issues raised about the debt
     were decided. Issues not raised were waived.

           In the rule to show cause proceedings, a single fact was at
     issue: Did [Wife], or did she not, pay her portion of the marital
     debt? A hearing was unnecessary for this issue. Both parties
     agreed that she did not.

           This [c]ourt can well understand litigator’s remorse,
     wherein a lawyer, wishing that a different argument had been
     made, or the same argument differently, tries for a second bite
     at the apple. We can even appreciate the impulse, having spent
     time in the seat of the advocate. We cannot, however, allow
     every issue to be relitigated ad infinitum. [Wife] had her trial,
     and her appeal. The time has come to pay the piper.

Trial Court Opinion, 4/27/16, at 2 (unnumbered).

     Now, in her brief, Wife sets forth the following five issues for our

review:

     1. Whether the [t]rial [c]ourt erred in ordering [Wife] to pay a
     one-half interest in a marital debt when the alleged holder of the
     debt was not a party to the divorce proceedings and [Husband]
     lacked standing to enforce the debt?

     2. Whether the [t]rial [c]ourt erred in ordering [Wife] to pay her
     one-half interest in a marital debt when the holder of the debt
     was never established of record and the trial court declined to
     allow discovery and an evidentiary hearing to establish same?

     3. Whether the [t]rial [c]ourt erred in finding that the statute of
     limitations did not operate to bar an action for recovery of the
     amounts allegedly due under the marital debt?

     4. Whether the [t]rial [c]ourt erred in ordering [Wife] to pay her
     one-half interest in a marital debt when [Husband] failed to
     mitigate his purported damages and was barred by the doctrine
     of unclean hands from asserting a claim for the marital debt and
     the [t]rial [c]ourt declined to allow discovery and an evidentiary
     hearing to resolve same?

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      5. Whether the [t]rial [c]ourt erred in finding that [Wife’s]
      arguments in opposition to [Husband’s] petition were waived and
      barred by the law of the case doctrine?

Wife’s brief at 5-6.

      After reviewing Wife’s arguments, the certified record, and the trial

court’s decision, we conclude that the court correctly determined that the

law of the case doctrine controls. In Commonwealth v. Starr, 664 A.2d

1326 (Pa. 1995), our Supreme Court explained the doctrine as follows:

      This doctrine refers to a family of rules which embody the
      concept that a court involved in the later phases of a litigated
      matter should not reopen questions decided by another judge of
      that same court or by a higher court in the earlier phases of the
      matter. Among the related but distinct rules which make up the
      law of the case doctrine are that: (1) upon remand for further
      proceedings, a trial court may not alter the resolution of a legal
      question previously decided by the appellate court in the matter;
      (2) upon a second appeal, an appellate court may not alter the
      resolution of a legal question previously decided by the same
      appellate court; and (3) upon transfer of a matter between trial
      judges of coordinate jurisdiction, the transferee trial court may
      not alter the resolution of a legal question previously decided by
      the transferor trial court.

      The various rules which make up the law of the case doctrine
      serve not only to promote the goal of judicial economy … but
      also operate (1) to protect the settled expectations of the
      parties; (2) to insure uniformity of decisions; (3) to maintain
      consistency during the course of a single case; (4) to effectuate
      the proper and streamlined administration of justice; and (5) to
      bring litigation to an end.

Id. at 1331 (citations omitted).

      As noted by the trial court, all Wife’s present claims of error were

decided previously or were not raised by her in the prior appeal and,



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therefore, must be deemed waived. Wife’s appeal is simply an attempt by

her to re-litigate the terms of the equitable distribution decision and, in

particular, the requirement that she pay one-half of the $90,000 marital

debt. She admits non-payment, but appears to continue to contest the fact

found in the previous litigation that this debt is “marital.” Accordingly, we

are compelled to affirm the trial court’s May 12, 2015 order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/2016




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