Brown v. Porchea

28 Pa. D. & C.4th 193
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMarch 1, 1996
Docketno. 009004505
StatusPublished

This text of 28 Pa. D. & C.4th 193 (Brown v. Porchea) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Porchea, 28 Pa. D. & C.4th 193 (Pa. Super. Ct. 1996).

Opinion

WATKINS, J.,

The instant action involves child support proceedings instituted on behalf of the minor child, Shameia Porchea, against her father, George Porchea. The defendant, George Porchea, takes an appeal from a non-distribution order entered by the court in conjunction with the support action.

As a starting point, the court finds it necessary to review the procedural history of the case, applicable statutory law, rules of appellate procedure and case law to determine whether the appeal from the interlocutory order should be quashed.

Support proceedings commenced when a complaint in support was filed against the defendant on July 13, 1990. The court record next reflects that the defendant failed to abide by an order requiring his presence at a pretrial conference before a family court hearing officer on October 1, 1990. As a result of his failure to appear, a bench warrant was issued for his arrest by the Honorable Ida Chen on October 2, 1990.

At some point thereafter, the defendant was arrested and incarcerated on criminal charges. During his incarceration, a second complaint in support was filed on April 6, 1992.

Most recently, the defendant was released from prison due to the 39th Police District investigation in Philadelphia. Following his release, he filed a civil lawsuit for monetary damages emanating from his incarceration.

After becoming aware of the defendant’s lawsuit against the City of Philadelphia, the Commonwealth brought a motion for non-distribution on behalf of the minor child, Shameia Porchea, and the matter came to hearing before the Honorable Thomas D. Watkins.

[195]*195Finding that the support action was more than five years old, and that a support hearing was scheduled before a permanent master on May 7, 1996, this court entered an order prohibiting defendant’s counsel, Margaret Boyce, Esq., from distributing to the defendant any proceeds received from certain enumerated types of legal proceedings that either were brought or which might be instituted on his behalf. The order further provided that said monies were to be applied towards payments on the defendant’s child support account. (See attached.)

The appeal taken by the defendant is clearly not from a legally final order. “A final order is one which ends the litigation or, alternatively, disposes of the entire case.” Schwartz v. Schwartz, 411 Pa. Super. 282, 284, 601 A.2d 349, 351 (1992). In the instant matter, no hearings have been held as yet on support. The defendant is awaiting a hearing before a permanent master in support in May. No final order has been entered concerning support, and the defendant will be entitled to seek redress in future proceedings on the issue.

Given that the order entered by this court is clearly interlocutory, the next issue to be addressed is whether the defendant has a right, in law, to take an appeal from said order. In general, it is well settled in this Commonwealth that there is no right of appeal from temporary orders of support. Sanders v. Sanders, 384 Pa. Super. 311, 315, 558 A.2d 556, 558 (1989), alloc. denied, 525 Pa. 635, 578 A.2d 930 (1990); West v. West, 301 Pa. Super. 75, 76, 446 A.2d 1342, 1343 (1982).

The issue at bar is more complicated, however, since although the order in question is entered in the context of an action in support, it can be characterized as being both injunctive and as an order of attachment. The part [196]*196of the order precluding the defendant’s attorney from distributing any potential proceeds recovered on behalf of her client is essentially injunctive. To the extent that the order requires that proceeds be applied to support obligations, it may be construed as an order of attachment.

Pa.R.A.P. 311, which governs what interlocutory appeals may be filed of right, includes specific provisions pertaining to injunctive orders and orders of attachment. While, as a general rule, there is an automatic right of appeal from injunctive orders and orders of attachment as provided in Pa.R.A.P. 311(a)(2), (4), an exception is drawn when such orders are issued pursuant to sections 401(c) and 403(a) of the Divorce Code of 1990. These statutory provisions have been recodified and incorporated under the new Domestic Relations Code at 23 Pa.C.S. §3323(f) and 23 Pa.C.S. §3505(a).

In evaluating the scope of these provisions for purposes of determining whether the instant action falls within its parameter, the court notes that although the instant action is limited to child support alone, the new Domestic Relations Code utilizes broad language which would seem to encompass such actions regardless of whether or not they are brought incidental to a divorce action. This is apparent from the wording employed in the applicable statutes.

Conferring upon the court expansive power to enter injunctive orders and other equitable relief in all matrimonial causes, which would presumably include support actions, 23 Pa.C.S. §3323(f) provides:

“Equity power and jurisdiction of the court — In all matrimonial causes, the court shall have lull equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this part [197]*197and 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.”

In expressly granting the court the ability to enter orders of attachment and injunctive orders for purposes of safeguarding child support rights, the legislature further provides in 23 Pa.C.S. §3505(a):

“Preliminary re/z'e/ — Where it appears to the court that a party is about to leave the jurisdiction of the court or is about to remove the property of that party from the jurisdiction of the court or is about to dispose of, alienate or encumber property in order to defeat equitable distribution, alimony pendente lite, alimony, child and spousal support or a similar award, an injunction may issue to prevent the removal or disposition and the property may be attached as prescribed by general rules. The court may also issue a writ of ne exeat to preclude the removal.”

Sanders, supra, lends support to the court’s finding that the exceptions under the Divorce Code for injunc-tive orders and attachment orders applies when a support action is instituted by itself independent from a divorce complaint. Reviewing the specific facts underlying the holding by the Superior Court in Sanders quashing the appeal as it applied to support, the opinion recites only that a complaint for support was filed and does not at all refer to any related divorce proceedings.

While the court finds that the defendant, George Por-chea, has improperly filed an interlocutory appeal, it will nevertheless address the rationale for issuing the order, which is quite compelling under the circumstances.

[198]

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Related

Schwartz v. Schwartz
601 A.2d 349 (Superior Court of Pennsylvania, 1992)
Sanders v. Sanders
558 A.2d 556 (Supreme Court of Pennsylvania, 1989)
West v. West
446 A.2d 1342 (Supreme Court of Pennsylvania, 1982)

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Bluebook (online)
28 Pa. D. & C.4th 193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-porchea-pactcomplphilad-1996.