J-S61033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, Gillotti, 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 result 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 appeal was filed within 30 days of the January 22, 

2016 Order granting Ambeliotis’s Petition. Thus, we will address the appeal.
J-S61033-16

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fees. As a result, BGMS continued to represent her. At the time of the 

equitable distribution 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 divided 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 receive 

$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 Exceptions, 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 $2,283.15.2

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-S61033-16

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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, 2016, 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 Order 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 award.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 commit 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 to BGMS.
J-S61033-16

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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 attorney 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 considerations 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 Order 
J-S61033-16

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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 distribution 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 

Order 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 disposes 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 appeal from such order has been taken or allowed.” 42 

Pa.C.S.A. § 5505.
J-S61033-16

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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 addressed 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 necessary 

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 established 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 9-10.
J-S61033-16

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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 equitable 

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.”); Shenango, 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 rationale 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 sound 
J-S61033-16

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reasoning 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 affirmed.

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 also 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 appeal 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 

Background 

In March of 2013, Wife retained BGMS attorney Hilary Bendik to represent 

her in a divorce action, paying an initial $3,500.00 retainer. The engagement 

agreement between Wife and BGMS set forth the rights and obligations of each, 

including BGMS's right to assert a charging lien for unpaid fees against any fund 

received by Wife as a result of the firm's efforts. 

Initially, Wife made. regular payments during the course of BGMS's 

representation. Those. regular payments then stopped. Wife asserted .she 

intended to pay and BGMS continued its representation. By the time of the 

equitable distribution trial, Wife owed close to $60,000.00 in fees to BGMS. 

The law firm of Bunde Gillotti Mulroy & Schultz, (hereinafter "BGMS") which 

represented Plaintiff, Sandra E. Ambeliotis (hereinafter "Wife") in her divorce 

action, appeals my January 22, 2016 Order regarding a charging lien. In that 

Order, I established a payment plan under which Wife would satisfy her 

obligation to BGMS under the lien. For the reasons set forth below. my Order 

should be affirmed. 

OPINION 

Defendant, 

Nicholas M. Ambeliotis, 

v. 

Sandra E. Ambeliotis, 

No.: FD- 13-003823 

Superior Court No.: 229WDA 2016 

Plaintiff, 

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA 

FAMILY DIVISION 

April 6, 2016 Judge Cathleen Bubash 

Circulated 08/12/2016 03:00 PM
3a 

11 I retained the 55/45 distribution scheme, added in some inadvertently omitted assets, affirmed the award of 

alimony, and ordered Husband to refinance the marital home. None of these aspects of the underlying ruling are 

relevant to the instant appeal. 

The equitable distribution case was heard by a special master in February 

of 2015. In her May 18, 2015 Report and Recommendation, the Master divided 

the marital estate 55/45 in Wife's favor. Although the parties had built a 

successful business during their marriage, most of the substantial marital assets 

were encumbered by substantial marital liabilities. Due to the scant liquid assets 

available for distribution, and in order not to negatively affect the viability of the 

marital business, the Master recommended that Husband pay Wife $1,858.89 per 

month for 84 months until she received $156, 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 lump sum from the marital estate, I 

found, as did the Master, that doing so was essentially impossible because of the 

way the parties had leveraged their assets. Accordingly, it was necessary for 

Wife to receive her portion of equitable distribution over time. My November 15, 

2015 Order partially sustaining Wife's exceptions provided, inter alia, that 

Husband pay Wife $161,537.00, with interest, at the rate of $2283.15 per month 

for 84 months to accomplish the equitable distribution award. 1 

After my Order on exceptions, BGMS filed a Petition to Establish a 

Charging Lien to recoup their unpaid fees. I granted BGMS 's petition for a lien 

by Order of October 21, 2015, which reads as follows: 

"1. A charging lien is issued against Sandra E. Ambeliotis, and all assets 

which she is entitled to pursuant to her rights and claims for equitable 

distribution. The charging lien issued hereby is issued in favor of the Law 

Firm of Bunde Gillotti Mulroy & Schultz, PC in the amount of $63,60 I .45 

pending further Order of Court. 

2 
4a 

2 BGMS had received $10,000.00 directly from Husband 

BGMS promptly filed a Motion for Reconsideration which I denied on 

February 2, 2016. On February 12, 2016, BGMS appealed, making good on a 

promise made repeatedly during its very animated argument on the Motion for 

Reconsideration. In response to my l 925(b} Order, the firm timely filed its 

On January 22, 2016, despite extremely vigorous argument from BGMS, I 

entered an Order for Wife to make monthly payments of $1,200.00 to satisfy the 

charging lien. That Order reads as follows: 

" ... It is hereby ordered adjudged and decreed that BGMS to be 

repaid under the charging lien at the rate of $1200.00/month until paid in 

full, with $1038.15 paid directly to Wife. Husband shall direct the $1200.00 

per month to {BGMS} until they have been repaid the $63,401.45 under 

the charging lien. BGMS shall promptly notify counsel for Husband and 

counsel for Wife once the balance has been paid in full." 

On January 22, 2016, Wife, through attorney Bendik, filed a Petition to 

Establish Payment Plan on Charging Lien, asking that I enter a further Order of 

Court, establishing a payment plan because the parties could not reach 

agreement on how she should pay BGMS out of the monthly payments from 

Husband. Wife proposed monthly payments of $1200.00 per month, which 

would result in full payment of the $63,601.45 in 3.7 veors.? Wife represented, 

and BGMS did not dispute, that the firm was unwilling to take any payment plan, 

and was, instead, requiring the entire $2,283.00 received monthly by Wife be 

held in escrow. This would leave Wife with only her $1,200.00 monthly alimony as 

income. 

3. Escrow shall be maintained pending further agreement of the 

parties or Order of Court." 

2. Any funds payable to Wife as a result of any equitable distribution 

award shall be placed into an escrow account at Dollar Bank with 

counsel from Bunde Gillotti Mulroy & Schultz, PC and counsel or Sandra E. 

Ambeliotis serving as escrow agents. 

3 
Sa 

Initially, I note that I found it appropriate to issue a charging lien in favor of 

BGMS in this matter. Under the law, five conditions must be met before a 

charging lien is recognized and applied: l. There must be a fund applicable for 

distribution on equitable principles; 2. services of the attorney must have 

operated substantially or primarily to secure the fund; 3. It was agreed that 

counsel look to the fund rather than the client for compensation; 4. the lien is 

limited to fees incurred in the litigation by which the fund was raised; and 5. 

There are other equitable considerations which necessitate recognition of the 

lien. See, Shenango Systems Solutions, Inc. v Micros-Systems, Inc., 887 A.2d 772 

(Pa.Super. 2006). 

I found the Agreement between BGMS and Wife clearly established that 

BGMS could look to what fund it created for payment of its fees. I found Wife's 

equitable distribution award was secured through BGMS's efforts in the litigation 

Discussion 

Concise Statement of Matters Complained of on Appeal, which states, in 

relevant part, as follows: 

"a. The trial court committed an error of law and abused its 

discretion in modifying the terms of an Order entered on October 21, 2015 

for which no motion for reconsideration or appeal had been filed. 

b. The trial court committed an error of law and abused its 

discretion in acting outside of its authority and interfering with contractual 

obligations entered into by BGMS and their prior client. · 

c. The trial court committed an error of law and abused its 

discretion in failing to follow established Pennsylvania law relating to 

attorney°charging liens. 

d. The trial court committed an error of law and abused its 

discretion in deferring payments that were due BGMS consistent with an 

attorney charging lien. 

e. The trial court committed an error of law, acted outside of its 

authority, and abused its discretion in entering an Order of Court 

essentially modifying the terms of a fee agreement between BGMS and 

their former client." 

4 
6a 

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, 2015 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 would 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 

could 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 also found that, since Wife was no longer a client 

of BGMS, it was equitable that a lien be established. 

The fact remains, however, that the "fund" which BGMS established for 

Wife 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 would 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 distribution 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 monthly. 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 unable to reach a 

further agreement, Wife returned to Court. 

5 
7a 

Contracts, however, are also to be interpreted by ascertaining the 

intention of the parties. "Contracts must receive a reasonable interpretation. 

according to the intention of the parties .. . the court may take into 

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 plain meaning of the words under the guise of 

interpretation. Trumpp v. Trumpp, 505 A.2d 601, 603 (Pa. Super. 1985); McMahon 

v. McMahon, 612 A.2d 1360, 1364 (Pa. Super. 1992). Accordingly, it would 

appear, at first review, that my Order modified the meaning of the party's 

contract by not requiring the monthly payments be escrowed for two years and 

paid out to BGMS prior to Wife receiving the remaining funds of her equitable 

distribution award. 

B. Interference with Contractual Obligations 

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

"outside of {my} authority and interfering with contractual obligations entered 

into by BGMS and their prior client." 

The fee agreement between BGMS and Wife provided 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 of 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 

alter her obligation to her former firm. It provides only that BGMS be paid over 

time, as is Wife. 

miscalculated the outcome of the underlying case and allowed Wife's fees to 

balloon to an unreasonable level rather than demand contemporaneous 

payment. I found BGMS entitled to their fees, but not entitled to impoverish their 

former client. 

6 
Ba 

I found establishing a payment plan to be necessary due to 

impossibility of performance on Wife's part as originally contemplated by the 

parties. Wife did not receive a "final settlement" as anticipated, but a final 

payment plan. When Wife retained BGMS to represent her and when BGMS 

agreed to forgo ongoing payment of its fees during that representation, both 

parties anticipated a "fund" from which those accumulating fees would be 

paid. This basic assumption on which the contract was made and on which the 

Pennsylvania follows the Restatement (Second) of Contracts. Section 261 

of Chapter 11 of the Restatement reads: "Where, after a contract is made, a 

party's performance is made impracticable without his fault by the occurrence 

of an event the non-occurrence of which was a basic assumption on which the 

contract was made, his duty to render that performance is discharged, unless 

the language or the circumstances indicate the contrary." Under this standard, 

a party's performance under a contract need not be strictly impossible, simply 

impracticable. 

The Master found, and I agreed, that Wife was in need of transitional 

alimony in addition to her equitable distribution award. To limit Wife to receipt of 

only the $ l ,200.00 in alimony on which to live for time it would take to satisfy 

BGMS's lien would be unconscionable under the circumstances. 

The court is to give effect to those intentions of the parties if the same 

can be done consistently with legal 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 the 

intention of the parties and the object they had in view when contracting - that 

BGMS receive all of its fees - can still be met without substantially prejudicing 

BGMS or by placing Wife in what would be a precarious financial 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). 

7 
9a 

Under Pennsylvania law, an attorney's equitable charging lien is 

superior to that of other creditors. My Order does nothing to disturb the priority of 

BGMS's lien. The issuing of the lien and the requirement that the funds be paid 

My Order does nothing which jeopardizes BGMS from being paid for its 

industry. Wife cannot "run away with the fruits of the cause" as she is not 

receiving them all at once and BGMS's payments are sent to it directly. 

"The charging lien, originally, was defined to be the right of an attorney 

at law to recover compensation for his services from a fund recovered by 

his aid, and also the right to be protected by the court to the end that 

such recovery might be effected. Unlike the retaining lien, the charging 

lien does not depend upon possession, but upon the favor of the court in 

protecting attorneys, as its own officers, by taking care, ex oequo et 

bono, [according to the right and good] that a party should not run away 

with the fruits of the cause without satisfying the legal demands of the 

attorney by whose industry those fruits were obtained." 

Attorney charging liens have long been issued by the courts of 

Pennsylvania to protect attorneys. As the Pennsylvania Supreme Court stated in 

Harris's Appeal, 323 Pa. 124, 130-131 (Pa.1936): 

BGMS next claims that I failed "to follow established Pennsylvania law 

relating to attorney charging liens." The right of an attorney to a priority 

charging lien has long been recognized and enforced in Pennsylvania. See, 

Smyth v. Fid. & Deposit Co. of Maryland, 190 A. 398, 402, opinion adopted; 192 A. 

640 (Pa. 1937). 

C. Failure to Follow Law Regarding Charging Liens 

In this case, I took each of these aspects into consideration in setting 

up an appropriate, equitable, and reasonable payment plan. 

parties relied did not come about. Strict performance under the contract, 

therefore, became impracticable. BGMS can only look to the fund it helped 

create and that fund is being created over time. 

8 
Escrowing all of the funds received by Wife would satisfy the lien in a bit 

over two years. Under the payment plan established, it will take 3.7 years. 

Without the established payment plan, Wife would not have adequate income 

to support herself for two years, negating the purpose of her alimony award. 

Balancing all of the issues before me, a payment plan was the most just and 

equitable alternative. 

D. Modification of Fee Agreement 

Lastly, BGMS argues that I acted outside of my authority and abused 

my discretion by "entering an Order of Court essentially modifying the terms of a 

fee agreement between ·BGMS and their former client." This argument is 

basically identical to its second argument at (b). As noted above, my Order did 

not modify the most essential elements of the fee Agreement - namely. that 

BGMS be paid for its efforts in achieving an award for Wife. 

BGMS's Agreement states at Paragraph 4: "This office expects you to 

keep your account current by paying in full all balances due by the date 

specified on your monthly invoice.' Notwithstanding this expectation, BGMS 

allowed Wife's outstanding bill to grow to over $63,000.00. 

The practice of law is a learned profession which is regulated by the 

Pennsylvania Rules of Professional Conduct. These rules present ethical and 

contractual issues for the lawyer and client that do not exist between people 

9 

In this case, as a court sitting in equity, I had the responsibility both to 

protect BGMS 's right to be paid for services provided and to effectuate 

economic justice between Husband and Wife, the litigants before me. My 

decision was not based on partiality or malice, but was based on the factual 

circumstances of the case. 

to BGMS directly prevent any of Wife's other creditors from depleting the fund. 

BGMS simply has to receive its fees in the same manner as Wife receives her 

award. 

10a 
11 a 

BY THE COURT: 

Because my February 2, 2016 Order was reasonably fashioned to protect 

all BGMS and Wife, and is consistent with the laws of this Commonwealth, it 

should be affirmed. 

Conclusion 

In this case, I found that BGMS was not being fair and reasonable when it 

flatly refused to accept any sort of payment plan proposed in good faith by 

Wife. The predicament in which BGMS finds itself was, to a great degree, of its 

own making. First, it allowed Wife's balance to grow without demanding 

payment when due and second, it miscalculated the likelihood of a single fund 

being created sufficient to pay off the bolonce. I found that, under those 

circumstances, since Wife was receiving her award over time, it was only .fair, 

equitable, and reasonable to allow Wife time to satisfy her obligation to BGMS. 

engaged in ordinary sales or service businesses. Hence, the attorney-client 

relationship is treated differently by the Courts than the relationship between, for 

instance, a property owner and a construction contractor. Business dealings by 

lawyers with their clients must be "fair and reasonable to the client" pursuant to 

Rule of Professional Conduct 1.8(a.)(1.). 

10