Katzenberger v. Katzenberger
633 A.2d 602
Pa.
1993
Check Treatment

*1 is entitled to sum, non-employee spouse if In employee spouse’s based on coverture by the not be further reduced the benefit from salary, also bar To freeze the fraction. arise to the sharing injustice works an money, from the time value of solely Thus, join majority’s opin- I non-working cannot spouse. I dissent. respectfully ion. Accordingly, KATZENBERGER, Appellee, Georg M. KATZENBERGER, Appellant. M. Hannelore Supreme Court of Argued March Nov. Decided *2 Steiner, Blechman, Jay Aderson, William L. A. Frank & Steiner, P.C., Pittsburgh, for appellant. Owen, P.

Margaret Joy, Eckert, Seamans, John R. Cherin & Mellott, Pittsburgh, for appellee. NIX, C.J., LARSEN, and FLAHERTY, ZAPPALA,

Before PAPADAKOS, JJ.

OPINION THE OF COURT FLAHERTY, Justice. appeal

This concerns the distribution of pension benefits pursuant to equitable distribution. The issue is whether in a deferred distribution of a defined benefit pension plan,1 the non-participant’s share is to be calculated on the amount the participant is to receive at some time after or on the amount he would receive if he retired on the date of separation. The trial court held that the non-participant’s share was to be calculated at the time the non-participant to begin chooses benefits.2 Superior reversed, Court its decision in Berrington v. Berrington, 409 holding that (1991) Pa.Super. 355, 598 A.2d 31 requires controls and that: qualified 1. The in this case is Equity under the Retirement Act of appeal Qualified and the is taken from the Domestic Relations pursuant request. Order entered to wife's provides, 2. The trial court’s decree pertinent part: nisi hereby 5.... Wife is awarded a share of pension husband’s US Air payments computed to be as follows: fraction, one half [wife’s share] times a the numerator of years which shall be employment the number of from date separation], 1981 [date of and the denominator of which shall be years the number of employment from date of to husband’s date of retirement, (coverture fraction) which fraction shall then be multi- plied by monthly husband’s retirement which amount shall

421 separa- on the date of available that only pur- that enhanced property tion is marital following employee by employer chased marital property. are not 10, 14, 409 Katzenberger, Pa.Super. (1991). granted allocatur. We case is con- stating is correct Superior A.2d 589 by Berrington Berrington, trolled (Pa.1993), this date. In that we affirmed also decided Court and held that: Superior pension, of defined a deferred distribution any portion not be awarded participating which are based participant-spouse’s increases, awards or incentive on Any benefits awarded years of service. only partici- on the spouse must non-participant *3 However, separation. date the of pant-spouse’s payable in there be the of between date employee spouse the spouse begins the non-participant and the date or not the efforts contri- are attributable to benefits which increased bene- any of such participant-spouse, butions the by non-participant spouse the fits be shared the estate. share of upon proportionate his her 403, at 594. 534 Pa. at is The case re- affirmed. Accordingly, Superior Court entry court of an consistent opinion to the trial for manded Berrington. holding with our LARSEN, J., of this participate in the decision case. did MONTEMURO, JJ., dissenting opinions. file of Air by the the US be set aside administrators of wife. the require wife's be calculated seems to share Although this order retires, by prepared QDRO the wife and entered the the husband when provides applied to benefits by that the coverture fraction court "through payment to Alter- payable date of commencement of would be Payee In either coverture fraction nate [wife].” applied contributions. CAPPY, Justice, dissenting.

I dissent for the reasons set forth in my dissenting opinion Berrington v. Berrington, day filed this the case of Pa. (1993), 633 A.2d 589 and because the in the majority, matter sub judice, incorrectly reasoning concludes that the Berrington justifies herein, holding similar where the final not be based will upon any made Mr. after by the date of separation. Justice, dissenting. in my

For the reasons set forth dissenting opinion Berrington Berrington, case of 633 A.2d 589 (1992), I respectfully dissent. Pennsylvania, Appellee,

COMMONWEALTH of SOUDERS, Appellant. Robert G.

Supreme

Submitted

Decided Dec. *4 Lancaster, Gray,

J. Richard for appellant. Karl,

James J. Asst. Dist. Atty., appellee.