McCain, J. v. Ames Law Group

• Court: Superior Court of Pennsylvania
• Decided: July 10, 2024
• Docket: 3032 EDA 2023
• Status: Unpublished

Opinion

J-A10019-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

JOSEPH MCCAIN, INDIVIDUALLY : IN THE SUPERIOR COURT OF AND ON BEHALF OF MINOR CHILD : PENNSYLVANIA A.M. : : Appellants : : : v. : : No. 3032 EDA 2023 : PATRICIA AMES, AMES LAW GROUP, : DAWN HAMPTON, DAQUAN : HAMPTON, AND MAUREEN TASHJIAN

Appeal from the Order Entered October 24, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 220900977

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.

MEMORANDUM BY BECK, J.: FILED JULY 10, 2024

Joseph McCain (“McCain”), individually and on behalf of minor child

A.M., appeals from the order entered by the Philadelphia County Court of

Common Pleas (“trial court”) denying his petition to release from escrow the

funds from his settlement agreement with Maureen Tashjian (“Tashjian”).

Because the trial court erred in denying the petition, we reverse.

A.M. is the child of McCain and Dawn Hampton (“Mother”). A.M.

currently resides with Mother in New Jersey. There are ongoing court

proceedings in New Jersey regarding the custody of and support payments for

A.M. Patricia Ames and Ames Law Group (collectively, “Ames”) represent

Mother in these proceedings. Tashjian is A.M.’s therapist. J-A10019-24

On June 23, 2022, McCain filed a complaint with the trial court in which

he alleged various claims of defamation against Ames and Tashjian (“the

defamation suit”). Subsequently, on December 22, 2022, McCain filed the

complaint in the instant matter in which he alleged claims of, inter alia, abuse

of process, negligence, and invasion of privacy. Specifically, McCain asserted

that Ames, Mother, and Tashjian violated provisions of the Case Records Public

Access Policy of the Unified Judicial System of Pennsylvania (“Public Access

Policy”)1 by repeatedly using A.M.’s full name in pleadings, exhibits, and other

filings in the defamation suit that not only publicly identified A.M., but also

referenced A.M.’s mental health issues. McCain further alleged that Daquan

Hampton (“Mr. Hampton”), Mother’s nephew, illegally recorded a phone call

that he had with McCain. McCain maintained that Mr. Hampton provided the

recording to Mother, who used it to get a temporary restraining order against

McCain that did not allow him any contact with A.M. for over a year.

On March 27, 2023, McCain and Tashjian reached a settlement

agreement whereby McCain agreed to release Tashjian from all claims in the

instant matter in exchange for $7,500.00. On June 20, 2023, the New Jersey

Office of Child Support Services issued a notice to withhold to Allied World

Insurance Company (“Allied”), Tashjian’s malpractice insurance carrier,

indicating that the State of New Jersey had a lien for past due child support

____________________________________________

1 The Public Access Policy is available at http://www.pacourts.us/public- records/public-records-policies (last visited 6/28/2024).

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payments against the settlement that is due to McCain. Consequently, on

August 14, 2024, the trial court entered an order directing Tashjian to deposit

the settlement funds into the trial court’s escrow account, and Tashjian and

Allied complied.

On September 14, 2023, the New Jersey Office of Child Support Services

issued a notice of release of lien notifying Allied that it was releasing Allied of

the requirement to withhold the settlement funds due to McCain. On

September 25, 2023, McCain filed a petition to release the settlement funds

from the trial court’s escrow account. Ames and Mother filed a response and

cross-motion asserting that McCain owed $11,450.00 in arears for child

support and requesting that the settlement payment be sent to New Jersey to

satisfy this debt. On October 24, 2023, the trial court denied the petition to

release the settlement funds and ordered that the funds be sent to New Jersey

to satisfy McCain’s child support obligation.

On November 27, 2023, McCain filed a notice of appeal from the order

denying his petition to release the settlement funds. 2 On December 13, 2023,

this Court received a letter from the trial court asserting that McCain’s notice

of appeal was untimely because he filed it more than 30 days after the entry

of its order denying his petition to release the settlement funds. See Pa.R.A.P.

903(a) (stating that the notice of appeal “shall be filed within 30 days after

2 The same day, McCain also filed a motion for reconsideration of the order denying the release of the settlement funds, which the trial court denied.

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the entry of the order from which the appeal is taken”). The trial court stated

that it issued the order denying McCain’s petition on October 24, 2023, and

sent notice to the parties on October 27, 2023;3 therefore, the court

contended that the notice of appeal was due no later than Sunday, November

26, 2023. The trial court did not file a substantive opinion addressing the

claims raised by McCain on appeal.

Addressing the timeliness of the notice of appeal first, the law is clear

that “[w]henever the last day of any such period shall fall on Saturday or

Sunday, or on any day made a legal holiday by the laws of this Commonwealth

or of the United States, such day shall be omitted from the computation.” 1

Pa.C.S. § 1908. Thus, McCain’s notice of appeal, which he filed on Monday,

November 27, 2023, was timely. See id.

Additionally, we must determine whether we have jurisdiction to decide

this matter. Pennsylvania Rule of Appellate Procedure 341 provides that

generally, an appeal may be taken as of right from a final order. Pa.R.A.P.

341. A final order is any order that “disposes of all claims and of all parties,”

or “is entered as a final order pursuant to [Rule 341(c)].” Pa.R.A.P. 341(b).

Thus, by definition, an order that does not dispose of all claims as to all parties

is interlocutory and not final. See id.; see also Spuglio v. Cugini, 818 A.2d

3 “The date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b).” Pa.R.A.P. 108(b).

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1286, 1287 (Pa. Super. 2003). The issue of finality and appealability of an

order directly impacts our jurisdiction of the appeal. In re Estate of Celia,

12 A.3d 374, 377 (Pa. Super. 2010). “[T]his Court has the power to inquire

at any time, sua sponte, whether an order is appealable.” Id. (brackets in

original; citations omitted).

In the docketing statement for this appeal, McCain indicated that he

seeks to appeal, as of right, from a collateral order pursuant to Pennsylvania

Rule of Appellate Procedure 313. See Pa.R.A.P. 313(a) (“An appeal may be

taken as of right from a collateral order of a trial court or other government

unit.”). Thus, on January 24, 2024, this Court issued a rule to show cause as

to why the trial court’s order denying McCain’s petition to release the

settlement funds was appealable as a collateral order Pennsylvania Rule of

Appellate Procedure 313. Rule 313(b) defines a collateral order as “[1] an

order separable from and collateral to the main cause of action [2] where the

right involved is too important to be denied review and [3] the question

presented is such that if review is postponed until final judgment in the case,

the claim will be irreparably lost.” Pa.R.A.P. 313(b). If an order satisfies the

three-pronged test set forth in Rule 313(b), this Court may exercise

jurisdiction of the appeal, even though it is not a final order. Rae v. Pa.

Funeral Dir. Ass’n, 977 A.2d 1121, 1125 (Pa. 2009). “If the test is not met,

however, and in the absence of another exception to the final order rule, we

have no jurisdiction to consider an appeal of such an order.” Id.

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The first prong of collateral order doctrine, separability, is met where

review of the order in question does not implicate the merits of the underlying

dispute. Ben v. Schwartz, 729 A.2d 547, 551–52 (Pa. 1999). Here, the

issue of the trial court directing the settlement funds to be sent to New Jersey

to satisfy McCain’s overdue child support payments is unquestionably separate

and distinct from the merits of his underlying claims of professional

negligence, invasion of privacy, and abuse of process against the defendants.

Thus, McCain has satisfied the first prong.

“With respect to the second prong of the collateral order doctrine, a right

is important if the interests that would go unprotected without immediate

appeal are significant relative to the efficiency interests served by the final

order rule.” J.C.D. v. A.L.R., 303 A.3d 425, 431 (Pa. 2023) (quotation marks

and citation omitted). Put another way, the collateral order must involve

“rights deeply rooted in public policy going beyond the particular litigation at

hand because it is not sufficient that the issue is important to the particular

parties involved.” Brooks v. Ewing Cole, Inc., 259 A.3d 359, 372 (Pa.

2021).

In his response to our rule to show cause, McCain argues that this appeal

satisfies the second prong of the collateral order doctrine because one of the

interests involved is his right to personal property (i.e., the settlement funds).

See Response to Rule to Show Cause, 2/5/2024, at 2 (unnumbered). This

Court has held in the context of Rule 313 that “[i]t is beyond peradventure

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that … the right to property … is deeply rooted in public policy.” Nemirovsky

v. Nemirovsky, 776 A.2d 988, 991 (Pa. Super. 2001). As the right to

property is a right too important to deny review, McCain has satisfied the

second prong. See id.

Finally, regarding the third prong of the collateral order doctrine,

because the record contains evidence that McCain is in fact in arrears on his

child support payments, see Cross Motion in Opposition to Plaintiff’s Motion

to Release Settlement Funds, 9/28/2023, Exhibits 1-2, he will not be able to

recover any of the settlement funds if the trial court sends them to New Jersey,

and thus, they will be irreparably lost. See Pa.R.A.P. 313(b). McCain has

therefore satisfied the third prong. Accordingly, as the order denying McCain’s

petition to release the settlement funds is appealable as a collateral order, we

now turn to address the merits of McCain’s claims.

McCain presents the following questions for review:

1. Whether [the] trial court erred in ordering [McCain]’s gross settlement proceeds be sent to the State of New Jersey to satisfy [his] alleged overdue child support without any statutory or precedent case law authority, where no lien existed and no evidence of record that support was overdue?

2. Whether [the] trial court erred and abused [its] discretion by disregarding the New Jersey and Pennsylvania statutes [that] allow only net proceeds, not gross proceeds[,] to be [garnished] from any settlements for overdue child support payments and disregarding evidence that the lien issued by [the] New Jersey Office of Child Support was released?

3. Whether the trial court abused its discretion by granting standing to Defendants Dawn Hampton, Ames Law Group, and/or Patricia Ames to function as [designated] agents of the State of

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New Jersey and/or to intervene in the distribution of the settlement proceeds[?]

4. Whether the trial court erred in denying [McCain’s] motion to release the proceeds from [his] settlement with [Tashjian] directly to [McCain].

McCain’s Brief at 4.

Because McCain’s first, second, and fourth issues are related and

dispositive of this appeal, we will address them together. These issues each

involve the application of statutes that govern the garnishment of settlement

funds for overdue child support payments. The application of a statute is a

question of law, and our standard of review is de novo and the scope of review

is plenary. Verdini v. First Nat’l Bank of Pa., 135 A.3d 616, 619 n.4 (Pa.

Super. 2016).

In his first, second, and fourth issues, McCain argues that the trial court

lacked the authority under 23 Pa.C.S. § 4308.1, which governs the collection

of overdue child support from monetary awards, to garnish his settlement

funds to satisfy his overdue child support payments. McCain’s Brief at 9-12.

McCain further contends that section 4308.1 only permits the court to garnish

the “net proceeds” of a settlement award for overdue child support payments

and that consequently, the trial court erred in garnishing the entirety of the

settlement award. Id. at 14-15, 19-20.

Section 4308.1(a) provides:

(a) General rule.--Overdue support shall be a lien by operation of law against the net proceeds of any monetary award, as defined in subsection (i), owed to an obligor, and distribution of any such

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award shall be stayed in an amount equal to the child support lien provided for under this section pending payment of the lien. Except as provided in subsection (c) or (f), nothing in this section shall provide a basis for a paying agent or an insurer to delay payment of a settlement, verdict or judgment.

23 Pa.C.S. § 4308.1(a).

Section 4302 defines “overdue support” as “[s]upport which is

delinquent under a payment schedule established by the court.” Id. § 4302.

Per section 4308.1(i), a “monetary award” is:

[a]ny portion of a settlement paid as a lump sum negotiated in lieu of, or subsequent to[,] the filing of a lawsuit for, or any civil judgment or civil arbitration award that is paid as a third party claim for bodily injury or death under a property and casualty insurance policy, or paid as a workers’ compensation or occupational disease act award under a workers’ compensation policy.

Id. § 4308.1(i). “Net proceeds” are any “excess of $5,000 payable to a

prevailing party or beneficiary ... after payment of attorney fees, witness fees,

court costs, reasonable litigation expenses[.]” Id. Thus, as this Court has

explained, “the ‘net proceeds’ attributable to the automatic lien provision

contained within [section] 4308.1 are limited to those amounts in excess of

$5,000.00.” Coffman v. Kline, 167 A.3d 772, 778 (Pa. Super. 2017).

The certified record reflects that McCain settled his claims against

Tashjian for $7,500.00. See Memorandum of Law in Support of Tashjian’s

Motion to Discontinue, 11/8/2023, Exhibit A. In their response to McCain’s

petition to release the settlement funds, Ames and Mother presented

documentation from the State of New Jersey that McCain owed $11,450.00 in

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child support. See Cross Motion in Opposition to Plaintiff’s Motion to Release

Settlement Funds, 9/28/2023, Exhibits 1-2. At first glance, McCain’s overdue

child support obligation would appear to create a lien by operation of law on

the settlement funds under section 4308.1(a). Under section 4308.1(i)’s

definition of monetary award, however, Tashjian’s settlement payment was

neither paid as a third-party claim for bodily injury or death nor was it paid

under a property or casualty insurance policy. Instead, the applicable

insurance policy issued by Allied, which made the settlement payment on

behalf of Tashjian, was a workers’ professional and business liability policy.

See Memorandum of Law in Response to Defendants Motion to Collect

Overdue Child Support from Plaintiff’s Settlement Funds, 8/7/2023, Exhibit C.

Thus, under section 4308.1(a), McCain’s overdue child support payments did

not create a lien by operation of law on the settlement funds and the trial

court had no basis under that provision to withhold his settlement funds.

Even if McCain’s overdue child support obligation created a lien against

the settlement funds under section 4308.1(a), McCain would still be entitled

to, at a minimum, $5,000.00. See 23 Pa.C.S. § 4308.1(a), (i). The trial court

would then need to calculate the “net proceeds,” as defined in section

4308.1(i), to determine what portion of the remaining $2,500.00 of the

settlement funds could be collected to satisfy the child support obligation. See

id. The record does not reflect that the trial court made any such calculation

or determination in this case.

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Additionally, as McCain points out, under 23 Pa.C.S. § 4305, a county’s

Domestic Relations Section (“DRS”) has certain powers and duties associated

with aiding to effectuate the payment of overdue child support obligations.

Section 4305 provides, in pertinent part, as follows:

(b) Additional powers.--Subject to the supervision and direction of the court but without the need for prior judicial order, the domestic relations section shall have the power to expedite the establishment and enforcement of support to:

* * *

(10) Issue orders in cases where there is a support arrearage to secure assets to satisfy current support obligation and the arrearage by:

(ii) Intercepting or seizing judgments or settlements.

23 Pa.C.S. § 4305(b)(10)(ii). Unlike section 4308.1(a), under section

4305(b)(10)(ii), there are no limitations on the type or amount of settlement

award that DRS can collect. Compare 23 Pa.C.S. § 4308.1(a) with 23

Pa.C.S. § 4305(b)(10)(ii).

In this case, however, there is no indication in the record that DRS

issued any order to seize the settlement funds to satisfy McCain’s overdue

child support obligation. Thus, the trial court had no basis to withhold the

settlement funds from McCain under section 4305.

Lastly, while the record contains evidence that the New Jersey Office of

Child Support Services initially placed a lien on the settlement funds because

of overdue child support payments on June 20, 2023, the record also reflects

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that the Office of Child Support Services released that lien on September 14,

2023. See Memorandum of Law in Response to Defendants Motion to Collect

Overdue Child Support from Plaintiff’s Settlement Funds, 8/7/2023, Exhibit C;

Plaintiff’s Response in Opposition to Defendant Tashjian’s Motion to

Discontinue, 11/28/2023, Exhibit A. Therefore, the record also reflects that

the New Jersey Office of Child Support services does not presently have any

lien on the settlement funds.4

Based on the foregoing, we conclude that the trial court had no legal

basis to withhold the $7,500.00 in settlement funds from McCain.

Consequently, the trial court erred in denying McCain’s petition to release the

settlement funds. We therefore reverse the order denying McCain’s petition

and remand this matter to the trial court for proceedings consistent with this

decision.5

4 We note that none of the appellees in this case have filed a responsive brief in this case. Thus, there is no argument raised in opposition to McCain’s claims before this Court. Additionally, there is no argument in this appeal that New Jersey law applies over Pennsylvania law, nor does the record reflect that any party raised a choice of law question before the trial court. As such, we have applied Pennsylvania law to decide this appeal from a Pennsylvania court order. Nonetheless, we observe that even if New Jersey law applied, McCain would still be entitled to relief. Under New Jersey law, McCain would be entitled to, at a minimum, $2,000.00 of the $7,500.00 settlement in this case. See N.J.S.A. § 2A:17-56.23b(a) (permitting the garnishment of any settlement award “in excess of $2,000, payable to the prevailing party or beneficiary after attorney fees, witness fees, court costs”).

5 Because McCain is entitled to relief based on our resolution of his first, second, and fourth issues, we do not need to address his third issue.

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Order reversed. Case remanded with instructions. Jurisdiction

relinquished.

Date: 7/10/2024

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