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HELEN B. DAMIANO v. WILLIAM DAMIANO. APPEAL NERNBERG & LAFFEY (09/27/88)

filed: September 27, 1988.

HELEN B. DAMIANO
v.
WILLIAM DAMIANO. APPEAL OF NERNBERG & LAFFEY, P.C.



Appeal from the Order of the Court of Common Pleas, Family Division, of Allegheny County, No. 1002 of 1973.

COUNSEL

James R. Cooney, Pittsburgh, for appellant.

Frank J. Kernan, Pittsburgh, for appellee.

Rowley, Del Sole, and Montgomery, JJ.

Author: Rowley

[ 378 Pa. Super. Page 107]

This appeal of Nernberg & Laffey, P.C., attorneys for plaintiff Helen Damiano (hereinafter "Wife") in the underlying support action, is from the trial court's order of August 18, 1987, denying the law firm's request for a modification of the court's order of support entered July 31, 1987. In the July 31 order, the trial court, inter alia, directed defendant/appellee William Damiano (hereinafter "Husband") to pay to the Department of Public Welfare (hereinafter "DPW") support arrearages of $15,789.09. In their request for modification, appellant Nernberg & Laffey, who had been retained by Helen Damiano on a contingent fee basis in her suit to recover the arrearages, asserted that they were entitled to recover their fees and costs from the arrearages. In effect, the trial court's order of August 18 denied appellant's request for counsel fees and costs.

Appellant's sole issue on appeal is whether the trial court erred in denying the firm's request for counsel fees and costs. Husband has not appealed the court's order directing him to pay the arrearages. His position in this appeal is that he does not care whom he is directed to pay, but he does not wish to be burdened with any part of the costs of the appeal. Wife has taken no part in this appeal. For the reasons set forth below, we affirm the order of the trial court.

The facts of the case, briefly summarized, are as follows: An ex parte order entered in the Allegheny County Court of Common Pleas on September 5, 1973, directed Husband to

[ 378 Pa. Super. Page 108]

    pay $150.00 per week toward the support of Wife and their six children. Husband, who had moved to Colorado, made no payments pursuant to this order. On March 13, 1986, Wife, represented by appellant Nernberg & Laffey, moved to enter judgment on the arrearages that had resulted from Husband's failure to comply with the support order of September 5, 1973. Husband disputed Wife's claim for arrearages. Following hearings, the trial court entered an order stating, in pertinent part:

AND NOW, July 31, 1987, it is hereby ordered that the Payor pay . . . ONE HUNDRED TWENTY-FIVE Dollars ($125.00) a month . . . for the support of: child plus Defendant to pay $400.00 per month on arrearages set at $15,789.09 owing the period of Sept. 5, 1973 through Feb. 1, 1978. D.P.W. Payee on arrearages.

Appellant Nernberg & Laffey moved for modification of this order, arguing that they were entitled to recover from the arrearages their contingent fee of thirty-three (33) percent, or $5,263.03, as well as $192.06 advanced as costs, for a total of $5,455.09. Appellant had acknowledged during the course of the proceedings that Wife had received public assistance from DPW from 1973 until 1980 and that DPW held a lien on Wife's home, the amount of the lien being $24,739.67 as of April 7, 1986. Appellant's motion was denied by the trial court in an order entered August 18, 1987, and this timely appeal from that order followed.

In an opinion dated November 5, 1987, the trial court offered three reasons in support of its denial of appellant's request for counsel fees. First, "the arrearages were not Wife's to assign" (Trial Court Opinion at 2), but were instead owed to DPW pursuant to 62 P.S. ยง 1975, which provides that "[w]henever any person shall become a public charge or receive public assistance, the public body or public agency caring for or furnishing such assistance may sue for and recover any sum of money due such person . . . ." Second, the "common ...


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