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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 SANDRA E. AMBELIOTIS : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : NICHOLAS M. AMBELIOTIS , : : APPEAL OF: BUNDE, GILLOTTI, MULROY & SCHULTZ, P.C. : : No. 229 WDA 2016 Appeal from the Order January 22, 2016 in the Court of Common Pleas of Allegheny County, Family Court Division, No(s): FD 13

- 003823

- 008 BEFORE: PANELLA, LAZARUS and MUSMANNO JJ. MEMORANDUM BY MUSMANNO, J. : FILED AUGUST 31, 2016 Bunde, Gill otti, Mulroy & Shultz, P.C. (“BGMS”) appeals from the Order granting Sandra E. Ambeliotis’s (“Ambeliotis”) Petition to Establish Payment Plan on Charging Lien. 1 We affirm. In March 2013, Ambeliotis retained Hilary Bendik (“Bendik”), an attorney for BGMS, to represent her during divorce proceedings. Ambeliotis paid an initial retainer of $3,500 and signed an engagement agreement with BGMS, which included BGMS’s right to assert a charging lien for any unpaid fees against any fund Ambeliotis received as a re sult of the firm’s work. Ambeliotis initially made regular payments for BGMS’s services. Once the regular payments stopped, Ambeliotis assured BGMS she would pay the

1 BGMS purports to appeal from the denial of its Motion for Reconsideration. It is well

- settled that “an appeal will not lie from the denial of a motion for reconsideration.” Karschner v. Karschner, 703 A.2d 61, 62 (Pa. Super. 1997). However, BGMS’s a ppeal was filed within 30 days of the January 22, 2016 Order granting Ambeliotis’s Petition. Thus, we will address the appeal.J
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fees. As a result, BGMS continued to represent her. At the time of the equitable distr ibution trial in February 2015, Ambeliotis owed approximately $60,000 in fees. Following the equitable distribution trial, the Master released her Report and Recommendation on May 18, 2015. According to the Master’s Report, the marital estate would be div ided 55/45 in Ambeliotis’s favor. However, due to limited liquid assets available for distribution, the Master recommended Ambeliotis receive her equitable distribution award through 84 monthly payments of $1,858.89. Additionally, Ambeliotis was to recei ve $1,200 per month for 24 months, as rehabilitative alimony payments. Thereafter, Ambeliotis and her ex

- husband filed Exceptions. In June 2015, Bendik left BGMS, and Ambeliotis transferred her case with Bendik. Bendik argued Ambeliotis’s case on Excepti ons, including an argument for the equitable distribution to be allowed in one lump sum. On November 15, 2015, after the Exceptions case was heard, the trial court ordered the equitable distribution award to be paid through 84 monthly payments of $2,283.1 5. 2 While the Exceptions were still pending, BGMS filed a Petition to Establish a Charging Lien. BGMS was seeking to recover Ambeliotis’s unpaid balance for the services provided while Bendik was working at BGMS. In the

2 The trial court retained the 55/45 split in Ambeliotis’s favor. See Order, 11/15/15, at 1 (unnumbered); see also Trial Court Opinion, 4/6/16, at 2 n.1. The updated monthly distribution was higher due to some omitted assets. See Trial Court Opinion, 4/6/16, at 2 n.1.J
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October 21, 2015 Order, the trial court issued a charging lien against Ambeliotis in the amount of $63,601.45. Any funds from an equitable distribution award were to be placed in escrow “pending further agreement of the parties or Order of Court.” Order, 10/21/15, at 2. On January 22, 20 16, Ambeliotis filed a Petition to Establish Payment Plan on Charging Lien. Ambeliotis notified the trial court that she and BGMS were unable to come to an agreement on how the charging lien should be paid. On the same day, the trial court issued an Orde r for Ambeliotis to make monthly payments of $1,200 to satisfy the charging lien. The trial court directed Ambeliotis’s ex

- husband to pay $1,200 of the monthly equitable distribution award to BGMS, leaving Ambeliotis with $1,083.15 per month from the awar d. 3 Thereafter, BGMS filed a Motion to Reconsider, which the trial court denied. BGMS filed a timely Notice of Appeal and a court

- ordered Pa.R.A.P. 1925(b) Concise Statement. On appeal, BGMS presents five questions for our review: 1. Did the trial court comm it an error of law and abuse its discretion in modifying the terms of an Order of Court entered on October 21, 2015[,] for which no motion for reconsideration or appeal had been filed? 2. Did the trial court commit an error of law and abuse its discretion in acting outside of its authority and interfering with contractual obligations entered into by BGMS and their prior client?

3 It appears the trial court incorrectly stated that Ambeliotis would only receive $1,038.15 after the payment t o BGMS.J
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3. Did the trial court commit an error of law and abuse its discretion in deferring payments that were due BGMS consistent with an atto rney charging lien? 4. Did the trial court commit an error of law and abuse its discretion in failing to follow established Pennsylvania law relating to attorney charging liens? 5. Did the trial court commit an error of law, act outside of its authority and abuse its discretion in entering an Order of Court essentially modifying the terms of a fee agreement between BGMS and their former client? Brief for Appellant at 4 (issues renumbered for ease of disposition). Initially, courts must consider five factors before issuing a charging lien: (1) [] there is a fund in court or otherwise applicable for distribution on equitable principles, (2) [] the services of the attorney operated substantially or primarily to secure the fund out of which he seeks to be paid, ( 3) [] it was agreed that counsel look to the fund rather than the client for his compensation, (4) [] the lien claimed is limited to costs, fees or other disbursements incurred in the litigation by which the fund was raised and (5) [] there are equitable c onsiderations which necessitate the recognition and application of the charging lien. Shenango Sys. Solutions, Inc. v. Micros -Systems, Inc. , 887 A.2d 772, 774 (Pa. Super. 2005) (quoting Recht v. Urban Redevelopment Auth. , 168 A.2d 134, 138

- 39 (Pa. 1961)). In BGMS’s first claim, it contends that the trial court abused its discretion in modifying the terms of the October 21, 2015 Order. See Brief for Appellant at 10

- 11. BGMS claims that because the Order granting the Petition to Establish Payment Plan was filed three months after the OrderJ
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granting the charging lien, the trial court acted outside of its jurisdiction under 42 Pa.C.S.A. § 5505. 4 Id. In its October 21, 2015 Order, the trial court stated that any funds Ambeliotis received through equitable dis tribution were to go into an escrow account “pending further agreement of the parties or Order of Court.” Order, 10/21/15, at 1

- 2. The trial court noted that the January 22, 2016 Order granting of the payment plan “did not modify the October 21, 2015 Ord er at all; it was contemplated by it.” Trial Court Opinion, 4/6/16, at 5. Here, the trial court granted the charging lien against Ambeliotis while the Exceptions on the equitable distribution were still being decided. Due to the language of the original Order, and the fact that pertinent terms of the equitable distribution award were still being determined at the time the charging lien was issued, the October 21, 2015 Order was not a final order. See Pa.R.A.P. 341(b)(1) (noting that a final order dispose s of all claims and parties); see also G.B. v. M.M.B. , 670 A.2d 714, 717 (Pa. Super. 1996) (stating that an order is final if it resolves all pending issues and constitutes a complete disposition of the claims). Rather, the potential for further judicial action was contemplated, and the trial court acted within its

4 Section 5505 states that “[e]xcept as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no ap peal from such order has been taken or allowed.” 42 Pa.C.S.A. § 5505.J
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jurisdiction once such action was necessitated. Thus, BGMS’s first claim is without merit. In its second claim, BGMS contends that the trial court went beyond its subject matter jurisdiction by interfering with the contractual obligations of the fee agreement between BGMS and Ambeliotis. See Brief for Appellant at 12

- 14. In its third claim, BGMS argues that the trial court abused its discretion by effectively deferring payments. Id. at 17
- 18. “Whether a court has subject matter jurisdiction presents a question of law, making our standard of review de novo and the scope of our review plenary.” Orman v. Mortgage I.T. , 118 A.3d 403, 406 (Pa. Super. 2015). In its Opinion, the trial court addresse d BGMS’s claims and determined they are without merit. See Trial Court Opinion, 4/6/16, at 6

- 8. Because the foundation of the Petition to Establish Charging Lien was the language of the fee agreement, it was within the trial court’s jurisdiction, and nec essary after failed payment negotiations, to examine the language of this fee agreement and determine a reasonable interpretation under which to enforce the charging lien. Further, notwithstanding the longer payment schedule, the decision to grant the est ablished payment plan does not jeopardize BGMS’s interest in full payment of the unpaid fees. Thus, we adopt the sound reasoning of the trial court for the purpose of this appeal. See Trial Court Opinion, 4/6/16, at 9

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In BGMS’s fourth claim, it avers that the trial court abused its discretion by failing to follow Pennsylvania law relating to charging liens. See Brief for Appellant at 15

- 16. BGMS asserts that the charging lien must be satisfied before Ambeliotis is to receive any portion of the equit able distribution award. Id. The trial court addressed BGMS’s fourth claim and determined that it is without merit. See Trial Court Opinion, 4/6/16, at 8

- 9; see also 23 Pa.C.S.A. § 3323(f) (stating that the trial court may act with “full equity power and jurisdiction[,] and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.”); Shenang o , 887 A.2d at 774 (stating that a trial court may account for equitable considerations regarding the issuance of the charging lien). We affirm with regard to this issue based on the trial court’s sound rationale. See Trial Court Opinion, 4/6/16, at 8

- 9. In its fifth claim, BGMS argues that the trial court acted outside its authority by modifying the fee agreement. See Brief for Appellant at 19

- 20. The trial court addressed BGMS’s claim and determined it is without merit, and we incorporate such rational e herein. See Trial Court Opinion, 4/6/16, at 9

- 10. The fee agreement’s purpose of ensuring full compensation for services provided by BGMS was not modified. Thus, the trial court’s analysis of the fee agreement was reasonable, and we adopt its soundJ
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re asoning for the purpose of this appeal. See Trial Court Opinion, 4/6/16, at 9

- 10. Based on the foregoing, the trial court acted within its jurisdiction, and did not abuse its discretion. Thus, we affirm the Order granting the payment plan. 5 Order affirme d.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 8/31/2016

5 Additionally, Ambeliotis seeks enforcement of an arbitration clause in the fee agreement, and she requests an award of attorney’s fees related to this appeal based on a frivolous appeal or vexatious conduct. See Brief for Appellee at 8

- 9; see also Pa.R.A .P. 2744; Fee Agreement, 3/5/13, at 3

- 4. However, Ambeliotis filed the Petition to Establish Payment Plan in the Court of Common Pleas, and did not seek the assistance of the Allegheny County Bar Association’s Special Fee Dispute Committee when BGMS would not negotiate a reasonable payment plan. See Stanley- Laman Group v. Hyldahl, 939 A.2d 378, 382

- 83 (Pa. Super. 2007) (stating that “[a] party’s acceptance of the regular channels of the judicial process can demonstrate its waiver of arbitration.”); see al so Smay v. E.R. Stuebner, Inc. , 864 A.2d 1266, 1278 (Pa. Super. 2004) (stating that acceptance of the judicial process includes a party’s failure to raise the arbitration issue promptly). Thus, Ambeliotis’s arbitration claim is waived. Further, the appea l was not frivolous as it was reasonable for BGMS to appeal any decision through the judiciary. Accordingly, Ambeliotis is not entitled to attorney’s fees.2a 1 B a ckground In M a rch of 201 3 , Wi f e reta i ned BGM S attorney H i l a ry Bendik to represent her in a divorce act ion , paying an initia l $ 3 , 500.00 retainer

. The engagement agreement between Wife a nd BGMS set forth the rights a nd obligations of each , i ncluding BGMS's right to assert a charging lien for unp a id fees a g a inst any fund received by Wife as a resu l t of the firm's efforts

. Initially , Wife made

. regular payments during the course of BGMS's representation. T h ose
. regular p ayments then stopped

. Wife asserted

.s h e intended to pay a nd BGMS continued i ts representat ion

. By t h e t ime of t h e equ i table dis t ribution tri a l , W i fe owed close to $60 , 000.00 in fees to BGMS

. T he law firm of Bunde G i ll otti Mulroy & Schultz , (herein after " B GM S ") whi c h represented P l a intiff , Sandra E. A m beliotis (hereinaft e r "Wife") in her divorc e act i on , appeals my J anuary 22 , 2 016 Order regarding a c h arging lien. In that Order, I est a blished a payment plan under which Wife wou l d satisfy her obligation to BGMS under the lien. For the reasons set forth below

. my O rde r should be affirmed

. OPINION Defendant , Nicholas M. Ambe l iot i s , 

### v. Sandra E

. Ambeliotis,
No

. : FD- 1 3-00 3 823 Superior Court No

. : 22 9WDA 2 016 Pla i n t iff , IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY , PENNSYLVANIA FAMILY DIVISION

J udge Cath l een Bubash A p r il 6 , 2016 Circulated 08/12/2016 03:00 PM3a 11 I retained the 55 /

45 di stribution scheme, added in some inadvertently omitted as sets , affirmed the award of alimony, and ordered Husband to refinance the marital home. None of these a sp ects of the underlying ruling are relevant to the instant app e al. The equitable distribution case was hea rd by a special master in Feb r uary of 2015. In he r May 18, 2015 Report and Recommendation, the Master divided the marital estate 55/45 in Wife's favor. A l though the parties had built a successful business during the i r marriage, most of the substantial marital assets
were encumbered by substantia l marita l li abilities. Due to the scant l iqu i d assets availab l e for distribution, and in order not to negat ively affect the vi ability of the marital business, the Master recommended that Husband pay Wife $1,858.89 per month for 84 months unt il she received $ 1 56, 146

. 65 to complete the 55/45 distribution scheme. She further recommended Wife receive $1200.00 in monthly rehabilitative alimony payments for 24 months

. Both parties filed exceptions. In June of 2015, just after the trial, attorney Bendik left BGMS, taking Wife's case with her to her new firm. Bendik argued Wife's case on exceptions. While I would have preferred to provide Wife with a l ump sum from the marita l estate, I found , as did the Master , that doing so was essentia ll y impossib l e because of the way the parties had l everaged their assets. Accordingly , it was necessary for Wife to receive her portion of equitable distribution over time. My November 15, 2015 Order partia ll y sustaining Wife ' s exceptions provided, inter alia, that Husband pay Wife $ 1 61,537.00, with interest, at the rate of $2283. 1 5 per month for 84 months to accomplish the equitable distribution award. 1 After my O rder on exceptions , BGMS fi l ed a Petition to Estab l ish a Charging Lien to recoup their unpa i d fees. I granted BGMS 's petition fo r a l ien by Order of October 21 , 2015, which reads as follows:

" 1. A cha rging lien is iss u ed against San d ra E. Ambeliot i s, an d a ll assets which she is entit l ed to p urs u ant to h e r r ights and claims f o r eq ui tab l e d i st ri b u tion. The charging l i en i ss u e d he reby i s iss u e d i n favo r of the Law F ir m of B u n d e Gi ll otti M u l roy & Sch u ltz , PC in the amo u nt of $63,60I .45 pen d ing f u rthe r O rder of Co urt.

24a 2 BGMS had received $10 , 000.00 directly from Husband BG M S p ro mptly fi l ed a Moti o n for R e consideration which I d enied on Fe b ruary 2, 2016. O n F e b r uary 1 2, 2 0 1 6, BGMS app e a l ed , making g oo d on a promise ma d e repeated ly during its very animat e d argument on the Motion for Reconside ration

. In response to my l 925( b } Order, the fi r m timely filed its On J a nu a ry 22 , 20 1 6, des p ite extre mely vi g orous argument from B G M S , I
en t ere d an Orde r f o r Wife t o m a ke mon t hly payments of $ 1 , 2 00.00 to satisfy the charging li e n
. Th at Ord e r re a ds a s follows:

"

. . . It is hereby o rde red adj u dged a nd decreed that BGMS t o be repai d u nder t he cha rging lien at the rate of $1200.00/month u ntil paid in f u ll, with $1038

. 15 paid d i rect l y to Wife. H u sband shall di rect the $1200.00 pe r month to {BGMS} u ntil t hey have been re paid the $63,401.45 u nder t h e cha rg i ng l ien

. BGMS shall promptly notify co u nsel for H u sband and co u nsel fo r Wife once t he b a lance has been paid in f u ll

. " O n Ja nu a ry 2 2 , 2 0 1 6, W i fe, throu g h attorney Bend i k, file d a Petit i on to Est ab lish P aym e nt P l an on C ha rgin g Lien, a skin g th at I enter a furth e r Order of Court , est ab lishing a payment pl a n because the parties cou l d not reach
a g reement on how sh e shou l d pay BGMS out of the month ly payments from Husband

. Wif e propo s ed monthly payments of $ 1 200

. 00 per month, which would resu l t in full payment of the $63,60 1.4 5 i n 3 .7 ve ors.? Wif e repres e nt ed , and BGMS did not dispute , t hat t he fi rm was u nw i lling t o take a ny p ay m e nt pl a n, a n d w a s, in ste ad , req uir ing the entire $2 ,28 3 .00 rec e ive d mont h ly b y W ife b e he ld in e scrow. This woul d l e av e Wif e with o n ly h e r $ 1 ,200

. 00 monthly a limony a s inc o m e. 3. Escrow shall be maintained pend i ng f u rthe r ag reement of the parties o r O rder of C o u rt

. " 2. Any f u nds payable to Wife as a res u lt of any eq ui tab l e d i st r ibution awa rd s hall be placed i nto an esc row acco u nt at D olla r Ba n k with co u nsel from B u nde Gillott i M u l roy & S chultz, PC and co u nsel o r San d ra E

. Ambe l iotis se rv ing a s esc row agents.

3

### S a

I ni t i a lly, I no t e th at I f o u nd i t ap p rop riate t o is su e a ch arg in g li en in f avor o f B GM S in this m atter

. Und e r th e law, fiv e c o nd i tions must be met before a c harg ing lien is r ecogni z ed a nd a pp li e d: l

. Th e re m ust be a fund a p pli c a ble fo r d istribution on equitable principles; 

### 2

. services of t h e attorn e y m ust h av e o pe rated substan t ially o r pr i m ari l y t o secure t h e fund; 

### 3

. It w as agree d th at
c oun s e l l o ok t o th e fund rather t han the clie n t for compen s ati o n; 4

. the lien i s limi t e d to fee s inc u rred i n t he liti g at i o n by which the fund was raised; a nd 

### 5

. There are oth e r eq u itab l e c onsi d erations whi ch n e cessitate recognit i on o f the lien

. See, Shenango Syst e ms Solutions, Inc

. v Micros - Sy

stems, Inc. , 8 87 A.2d 7 72 (Pa.Super

. 2006)

. I found t he A gre e ment betwe e n BGMS a nd W if e cle a rly est a b lishe d th at B G MS co u ld l o ok t o wh at f und i t cre ated for p ay m en t o f i ts fees

. I found Wife's
e qu i t a ble d istribution award was secu red through B GM S 's efforts in th e li t i g ation Discussion C on ci se Stat em ent o f Matte rs Co m pl a ined of o n Ap pe a l, which states, in re l evant part, as f o llows:

"a. T h e trial co u rt committed an er ror o f law and ab u sed its dis c retion in modifying the te rms of an Order ent e red o n Octob e r 21, 2015 fo r w h ich no mot i on for reconsideration o r appea l had been filed. b. T he trial c o u rt comm i tte d an error of law and ab u s e d its discretion in act i ng o u tside of its a u thori ty and in t e rfering w i th cont ract u a l obl i gations entere d into by BGMS and their prior client

. · c
. The tria l co u rt committed an e rro r of law and ab u sed its dis c retio n in faili n g to follow esta b lished Pen n sylvania l aw re lati ng t o attorney°charg i ng liens. d. T he trial co u rt committ e d an error of law and a b u s e d its disc retion in deferring payments that were d u e BGMS cons i ste n t wi t h an att o rney charg ing l ien. e
. The trial court committed an error of law, act ed o u tside of i ts authority, an d a b use d its discre t i on in e ntering an Order of Co u rt essentially modifying the terms of a fee agreement between BGMS and their fo rm er client."

46a

A. Modification of my October 21, 2015 Order In its first matter complained of, BGMS argues that I erred by "modifying the terms" of my October 21, 2015 Order. The Order, itself, provided for subsequent modification, either by agreement of the parties or by further Court Order. My January 22, 2016 Order, filed in response to Wife's Motion to Establish a Payment Plan, did not modify the October 21, 20 1 5 Order at all; it was contemplated by it. In her Response to BGMS's Motion for Reconsideration and at argument thereon, Wife demonstrated that BGMS was not willing to negotiate at all toward an agreement. Essentially, BGMS demanded that the funds be held in escrow for the two years it wou l d take for the full balance to be reached. Based on the facts of the case, I found this result would be inequitable. Had BGMS been able to secure a lump sum payment for Wife to which they
cou l d have looked for their fees, paying them in full prior to Wife receiving the remainder of the fund would have been appropriate. Instead,

. BGMS for which she retained them. I a l so found that, s i nce Wife was no longer a client of BGMS, it was equitable that a lien be estab l ished. The fact remains, however, that the "fund" which BGMS established for W i fe was to be paid out to her slowly over a number of years. I, accordingly, found it equitable and reasonable that the amounts of that fund subject to the charging lien wou l d also have to be paid out to BGMS in installments. My October 21, 2015 Order establishing the lien provided the funds payable to Wife in equitable d i stribution be placed in escrow. Unlike a typical equitable distribution award, Wife's payments were received monthly, and could only be placed into the escrow account month ly. Pursuant to the Order, that escrow was then to be maintained "pending further agreement of the parties or Order of Court." When the parties were apparently unab l e to reach a further agreement, Wife returned to Court.

5

### 7a Contracts , however , are a l so to be interpreted by ascerta i ning the intention of the parties. "Contracts must receive a reasonab l e interpretation.
a c cord i ng to the i ntention of the parties

.. . the court may take i nto consideration the surrounding circumstances, the situation of the parties , the

Under Pennsylvania law, the Court must construe a contract only as written and may not modify the pla i n meaning o f the words under the guise of interpretation. Trumpp v
. Trumpp, 505 A.2d 601 , 603 ( Pa. Super

. 1985); McMahon
v. McMahon, 612 A

. 2d 1 360 , 1364 (Pa

. Super. 1992)

. Accordingly, it would appear , at first revi ew , that my Order modified the mean i ng of the party ' s contract by not requiring the mont h ly payments be escrowed for two years and paid out to BGMS prior to Wife receiving the remaining f unds of her equitable d i stribution award. B. I nterference with Contractual Ob li gations

BGMS next argues that I erred and abused my discretion by acting

" outside of {my} authority and interfering with contractual obligations entered into by BGMSand their prior client."

The fee agreement be tween BGMS and Wife provi ded at Paragraph 6: "By signing this retainer agreement, you agree that any check for final payment of settlement of your case shall be made out to {BGMS}. You also hereby agree that any outstanding fees ... with our firm may be taken directly out of the final settlement o f your case prior to the remaining funds being released to you." My Order does not modify or reduce the amount which Wife owes to BGMS, nor
a l ter her ob li gation to her former firm. It provides only that BGMS be paid over time, as is Wife. m i scal c u l ated the outcome of the underl ying case and allowed W i fe's fees to balloon to an unreasonable l evel rather than demand contemporaneous pay me n t. I found BGMS entitled to their fees , but not ent i tled to i mpoverish their former client.

6

### Ba I found esta b lishing a payment plan to be necessary due to i mpossibility of perform a nce on Wife's part as originally contemplat ed by the parties

. Wife d i d not receive a "final sett l ement" as a nticipated, but a fina l payment plan. When Wife retained B GMS to represent her and when B GMS ag reed to forgo ongoing p ay m ent of its fees during th at rep res e nt ation, b oth pa rties anticip ated a "fund" from which those accumulating fees would be pa i d

. T h i s bas i c assumption on which the contract was made and on wh i ch the Pennsylvan i a follows the Restat em ent (Secon d ) of Contracts. S e ction 26 1
o f Ch a pt e r 1 1 of the R e stat e ment re a ds: "Where, after a contract is ma d e, a pa rty ' s performanc e is m ade impracticabl e without his fault by the occurrence of an event the non - occurrence of which was a basic assumption on which the contract was made, h i s duty to render that p e rforman c e is discharg e d, unless the language o r the ci rcumst a nces i n dicate the contrary." Under this sta ndard,
a party's perfo r mance und e r a c ont ra ct need not b e st r ictly impossib l e, simp l y i m pra ctic a ble

.

The Master found, and I ag reed, that Wife was in need of transitional alimony in add i tion to h e r equitab l e distribution award

. To limit Wife to receipt of only t he $ l ,200.00 in a l imony on whi c h to live for t i me it would t a ke to s at isfy B GMS's lien would b e unconscio n able und er th e ci rc umst a nces
.

The court is to give effect to those intentions of the parties if the same
can be done consistently with l ega l principles. I sit as a court of equity and BGMS has asked me to exercise my equitable powers to assist them in collecting their fees. In this case, I found it was inequitable to impoverish Wife when th e intention of th e parties a nd the object they had in v i ew when co n tracting - th at B GM S re c eive all of its fees - can still be met without subst a nti a lly prejudicin g BGMS or b y placing Wife in what would be a precarious financia l position. objects they apparently have in view, and the nature of th? subject

- matter of the agreement." Silverstein v Hornick , 103 A

. 2d 734 (Pa. 1953)

.

79a Und er Pe nn sy l v a ni a l aw , a n atto rne y ' s equ i tab l e cha rgi ng lien is supe r ior to that of othe r cre ditors
. My Order does nothin g to distu r b the p ri o ri ty of BGMS ' s lien. The iss u i ng of t h e lien a n d th e requireme nt that t he f u nds b e pa i d

My Order does no th ing wh ic h jeopard i zes BGMS f rom bei ng paid fo r its indust ry
. Wife cannot "run away with the fruits of the cause" as she is not receivi ng them a ll at o n ce a n d BGMS' s payments a re s en t to it d i re ctly

.

" T h e chargi ng lien , o ri g i nall y , wa s d efi ned to be th e ri ght of an attorne y at l aw t o recove r co m pen sation f or h is serv ice s fro m a f und recovered b y hi s aid , and al s o th e right to be p rotecte d by the co urt to t h e en d that s u ch re cove ry mi ght be e ff e cte d

. U nl ike t h e re taini n g lien , t h e c h a rg i n g li en d o es not d epen d u pon posse ss io n, b u t u p o n t he favo r of t h e c o urt i n p rotectin g att o rneys , as i ts own o ffic ers, b y taking care , ex oe qu o e t bon o , [acc o rdin g to th e right a nd g ood ] t h at a p arty sh o uld n ot r u n away w i th the fr u its of the ca u se w i tho u t sat isfy i ng the legal deman ds of t he att o rne y b y who se ind u st ry t h ose fru its w e re obta i ne d

. " Attorney cha rging l i ens have long been issued by the cou rts of Pennsylvania to protect attorneys. As the Pennsyl vania Sup reme Court stated i n H arr i s ' s Ap p eal , 323 Pa
. 124

, 1 30- 1 3 1 (

Pa
. 1 936): B GMS next c l aims that I fai l ed " to fo ll ow estab li shed Pe nn syl va n ia law
re l at ing to atto rn e y cha rging liens." The r ight of a n attorney to a priority charging lien has long been re cognized and enforced in Pennsylvan i a
. Se e, Smyth v
. Fid. & D eposit C o
. o f Maryl a nd , 1 90 A

. 398

, 402, opin ion adop te d; 1 92 A

. 640 ( Pa. 1937 ). C. Fa il ure to Follow Law Rega rdi n g Cha rgi n g Lie ns

In this ca se, I took each of these aspects into consideration in settin g up an appropriate, equitable, and reasonab l e payme n t pla n
. pa rties relied d i d not come about. St r ict perf o rma n ce under the c o ntract , therefo re , b ec ame imp ractica bl e. BGMS can o nl y lo o k to the f un d it helped
cre at e a n d t h at fu n d i s b e in g c reated over t i me.

8Esc rowin g all of th e funds rec e ived by Wife wou l d satisfy the li en in a b i t

over two years. Und e r th e payment plan est a blished , i t w i ll take 3.7 years
. Witho u t the e stablishe d pay m ent plan, W if e woul d not hav e a deq uat e in c ome to sup po rt h e rself for two y e ars, negating the pu r po s e of her a limony award

. B a lancing all of the issues before me, a p ayment p l a n was the most jus t and equitable alternative. D

. Modificat i on of Fee Ag reement

Last ly, B G MS a rgu e s t hat I acted o utsi d e of m y authority an d a b use d
m y disc retion by " e ntering a n Orde r of Court essentially mo d ifyin g the terms o f a fe e agreement between · BGMS and their former client." This argument is basically identical to its second argum e nt at (b). As noted a bov e , my O rd e r did
no t mo di fy t h e m ost e ssenti a l el e ments of the fe e Ag ree m ent - namely

. that B G MS b e paid for i ts efforts in achievin g an award for Wife.

BGMS's Agreement stat e s at Paragraph 4 : "This office expects you to keep your account c u rrent by payin g in full all balances du e by the d ate specifie d on your m onthly invoi c e
. ' N otwithstandin g this e x p e ctati o n, BGM S allowed Wife's outst a nding bill to grow to over $63,000

. 00.

T he practice of law is a l earned profession which is re g u l ated by the Pennsylva nia Rules of Professiona l Conduct

. These ru l es present ethica l an d contractua l i ssues fo r the l awyer a nd client that do not e x ist b e twe e n p e ople 9 In this c a se, a s a court s ittin g i n equity, I had the respons i b i lity both to p rotect BGMS

's right to be p a id for serv i ces provided and to e ffectuate
econo m ic j u stice between H usband and Wife, the litigants before me
. My d e cision wa s not based on parti a l ity or m a lice, but w a s b a sed on the f a ctu a l ci rcums t anc e s of the c a se
. to BGMS direct l y prevent any of Wife's other creditors from deplet i ng the fund

. BGMS simp l y has to receive its fees in the sam e manne r a s W ife receives her award

.

10a11 a BY THE COURT: Because my February 2, 2016 Ord e r was reasonably fashioned to prot e ct al l BG MS a nd Wife, and is consistent with th e laws of th i s Co m monwealth, it should be affirm e d

. C oncl u sion In this cas e , I found th at BGMS was not being fair and reasonable when it flatly refused to accept any sort of payment plan proposed in goo d f a i th by W ife. The predic am ent in which B GM S finds its elf w a s, to a gre at de g ree, o f its own making. F i rst, it allowed Wife's balance to grow wi t hout demanding payment when due and second, it miscalcul ated the li kelihood of a single fund bein g cre ated s uffici e nt to pay off th e bo l o nce
. I found th at, under those circumstances, since Wife was receiving her award over time , it was only

. fair , equi t able, a nd re asonab l e t o allow Wife ti m e to s ati sfy her obligation t o BGM S. engaged in ordinary sales or servi ce bus i nesses
. Hence, the attorney
- client relationship is treated diffe rently by the Courts than the rel ationship between, for instance, a prope rty owne r and a construction contractor. Business dea l ings by l awye rs with their clients must be "fair and reasonable to the client" p ursuant to Rule of Professional Conduct 1.8(a

. )(1.).

10