J-A11039-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    MATTHEW MUSKET                             :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    KELLY J. MUSKET                            :   No. 1324 MDA 2019

                  Appeal from the Order Entered May 23, 2019
      In the Court of Common Pleas of Berks County Civil Division at No(s):
                                   15-18475


BEFORE:       PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JUNE 15, 2020

        Appellant Matthew Musket (“Husband”) appeals from the Order entered

in the Court of Common Pleas of Berks County on May 23, 2019, made final

for purposes of appeal by the Order entered on July 15, 2019, in accordance

with Pa.R.A.P. 341(c), denying Husband’s Exceptions to the Master’s Report

and Recommendation for Equitable Distribution which, inter alia, deferred

valuation and distribution of Kelly J. Musket’s (“Wife”) Pennsylvania State

Employees’ Retirement System (“PSERS”) pension. We affirm.

        The trial court set forth the relevant facts and procedural history herein

as follows:

              The parties in the above-captioned divorce, [Husband] and
        [Wife] were married on June 26, 2006. Husband initiated divorce
        proceedings on September 23, 2015. This appeal arises out of this
        [c]ourt's order of July 15, 2019, designating our order of May 23,
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      2019, denying Husband's Exceptions, a Final Order for the
      purposes of an appeal pursuant to Pa R.A.P. No. 341(c).

                              Procedural History

             The parties appeared before the Divorce Hearing Master, Jill
      Gehman Koestel, on December 5, 2018 and December 27, 2018.
      The Master's Report and Recommendation was filed on February
      12, 2019. [Husband] filed Exceptions to the Master's Report
      alleging the Master erred by: (1) failing to make a finding of value
      of Wife's [PSERS] pension, (2) failing to apply an immediate offset
      valuation to [Wife’s] PSERS pension, (3) failing to protect
      [Husband] against [Wife’s] decease or disability prior to
      retirement by requiring [Husband] be designated as the
      beneficiary of [Wife]'s PSERS pension death benefit ([Husband's]
      Statement of Matters, ¶ 13 - 15).
             We considered the above issues, and, following argument
      on [Husband’s] Exceptions and a review of the transcript of the
      Divorce Master Hearings and all other pleadings, entered an order
      denying all of [Husband’s] Exceptions, having found that the
      Master committed no error of law or fact.

Trial Court Opinion, filed 10/9/19, at 1-2.

      Husband filed a timely notice of appeal on August 12, 2019. On August

27, 2019, Husband filed his concise statement of matters complained of on

appeal which spans four pages and contains fifteen, separately enumerated

paragraphs, some of which contain multiple subparts. The trial court filed its

Opinion pursuant to Pa.R.A.P. 1925(a) on October 9, 2019.

      Before we consider the merits of Appellant’s questions presented on

appeal, we first must determine whether he has preserved them for appellate

review. This Court explained in Riley v. Foley, 783 A.2d 807, 813 (Pa.Super.

2001), that Pa.R.A.P. 1925 is a crucial component of the appellate process

because it allows the trial court to identify and focus on those issues the


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parties plan to raise on appeal.    We further determined that “a Concise

Statement which is too vague to allow the court to identify the issues raised

on appeal is the functional equivalent to no Concise Statement at all.”

Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa.Super. 2001).

“Even if the trial court correctly guesses the issues Appellant[] raise[s] on

appeal and writes an opinion pursuant to that supposition the issues are still

waived.” Kanter v. Epstein, 866 A.2d 394, 400 (Pa.Super. 2004) (citation

omitted, appeal denied, 584 Pa. 678, 880 A.2d 1239 (2005), cert. denied,

Spector, Gadon & Rosen, P.C. v. Kanter, 546 U.S. 1092, 126 S.Ct. 1048,

163 L.Ed.2d 858 (2006).

     We also have stated that:

     When a court has to guess what issues an appellant is appealing,
     that is not enough for meaningful review. When an appellant fails
     adequately to identify in a concise manner the issues sought to be
     pursued on appeal, the trial court is impeded in its preparation of
     a legal analysis which is pertinent to those issues.
            In other words, a Concise Statement which is too vague to
     allow the court to identify the issues raised on appeal is the
     functional equivalent of no Concise Statement at all. While
     [Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998)]
     and its progeny have generally involved situations where an
     appellant completely fails to mention an issue in his Concise
     Statement, for the reasons set forth above we conclude that Lord
     should also apply to Concise Statements which are so vague as to
     prevent the court from identifying the issue to be raised on
     appeal....

Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa.Super. 2006) (quoting

Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa.Super. 2001)).




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         This Court similarly has found waiver applicable to voluminous concise

statements. As indicated in Tucker v. R.M. Tours, 939 A.2d 343, 346

(Pa.Super. 2007):

                Our law makes it clear that Pa.R.A.P. 1925(b) is not satisfied
         by simply filing any statement. Rather, the statement must be
         “concise” and coherent as to permit the trial court to understand
         the specific issues being raised on appeal. Specifically, this Court
         has held that when appellants raise an “outrageous” number of
         issues in their 1925(b) statement, the appellants have
         “deliberately circumvented the meaning and purpose of Rule
         1925(b) and ha[ve] thereby effectively precluded appellate review
         of the issues [they] now seek to raise.” Kanter, 866 A.2d at 401.
         We have further noted that such “voluminous” statements do not
         identify the issues that appellants actually intend to raise on
         appeal because the briefing limitations contained in Pa.R.A.P.
         2116(a) makes the raising of so many issues impossible. Id.
         “Further, this type of extravagant 1925(b) statement makes it all
         but impossible for the trial court to provide a comprehensive
         analysis of the issues.” Jones v. Jones, 878 A.2d 86, 90
         (Pa.Super. 2005).

         In the matter sub judice, the trial court indicated in its Rule 1925(a)

Opinion that while at first blush Husband’s concise statement appeared to

assert fifteen separate claims, the allegations of error “revolve around a single

asset, [Husband’s] interest in the PSERS pension, and relate to the valuation

and distribution of that pension.” Trial Court Opinion, filed October 9, 2019,

at 2. The same can be said for the issues presented in Husband’s appellate

brief.    Thus, in light of the fact that the trial court was able to conduct a

meaningful review of the issues Husband sought to raise, and Husband raises

essentially those same issues for this Court’s consideration, we decline to find




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Husband’s issues waived for filing a deficient concise statement and proceed

to consider the merits of the following three claims he presents for our review:

      I.   DID THE MASTER ERR IN FAILING AND REFUSING TO FIND
      A VALUE AS TO [WIFE’S] PUBLIC-SCHOOL EMPLOYEES
      RETIREMENT SYSTEM (PSERS) BENEFIT AND DID THE LOWER
      COURT ERR IN DENYING [HUSBAND’S] EXCEPTIONS THERETO?

      II. DID THE MASTER ERR IN FAILING AND REFUSING TO
      RECOMMEND AN IMMEDIATE OFFSET OF THE MARITAL PORTION
      OF [WIFE’s] PSERS BENEFIT AGAINST OTHER MARITAL ASSETS
      RATHER THAN A DEFERRED DISTRIBUTION THEREOF AND DID
      THE LOWER COURT ERR IN DENYING [HUSBAND’S] EXCEPTIONS
      THERETO?

      III. DID THE MASTER ERR IN FAILING TO RECOMMEND A DECREE
      WHICH WOULD PROTECT [HUSBAND’S] RIGHTS IN REGARD TO
      [WIFE’S] PSERS BENEFITS IN THE EVENT OF DEATH OR
      DISABILITY AND DID THE LOWER COURT ERR IN DENYING
      [HUSBAND’S] EXCEPTIONS THERETO?


Brief of Appellant at vi. As Husband’s first two issues are interrelated, we will

consider them together.     In doing so, we are mindful of this Court’s well-

settled role in reviewing equitable distribution awards:

      Our standard of review in assessing the propriety of a marital
      property distribution is whether the trial court abused its
      discretion by a misapplication of the law or failure to follow proper
      legal procedure. An abuse of discretion is not found lightly, but
      only upon a showing of clear and convincing evidence.

McCoy v. McCoy, 888 A.2d 906, 908 (Pa.Super. 2005) (internal quotations

and citation omitted). We have further stated:

            This Court will not find an “abuse of discretion” unless the
      law has been overridden or misapplied or the judgment exercised
      was manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill will, as shown by the evidence in the certified record.
      In determining the propriety of an equitable distribution award,

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      courts must consider the distribution scheme as a whole. We
      measure the circumstances of the case against the objective of
      effectuating economic justice between the parties and achieving a
      just determination of their property rights.
            Moreover, it is within the province of the trial court to weigh
      the evidence and decide credibility and this Court will not reverse
      those determinations so long as they are supported by the
      evidence. We are also aware that a master's report and
      recommendation, although only advisory, is to be given the fullest
      consideration, particularly on the question of credibility of
      witnesses, because the master has the opportunity to observe and
      assess the behavior and demeanor of the parties.

Carney v. Carney, 167 A.3d 127, 131 (Pa.Super. 2017) (citations omitted).

      Wife’s PSERS account is a defined benefit pension plan. Section 3501(c)

of the Divorce Code speaks to the calculations that must be made when

valuing a defined benefit retirement plan for purposes of equitable distribution

according to either an immediate offset or a deferred distribution method:

      (c) Defined benefit retirement            plans.--Notwithstanding
      subsections (a), (a.1) and (b):

      (1) In the case of the marital portion of a defined benefit
      retirement plan being distributed by means of a deferred
      distribution, the defined benefit plan shall be allocated between
      its marital and nonmarital portions solely by use of a coverture
      fraction. The denominator of the coverture fraction shall be the
      number of months the employee spouse worked to earn the total
      benefit and the numerator shall be the number of such months
      during which the parties were married and not finally separated.
      The benefit to which the coverture fraction is applied shall include
      all postseparation enhancements except for enhancements arising
      from postseparation monetary contributions made by the
      employee spouse, including the gain or loss on such contributions.

      (2) In the case of the marital portion of a defined benefit
      retirement plan being distributed by means of an immediate
      offset, the defined benefit plan shall be allocated between its
      marital and nonmarital portions solely by use of a coverture
      fraction. The denominator of the coverture fraction shall be the

                                      -6-
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      number of months the employee spouse worked to earn the
      accrued benefit as of a date as close to the time of trial as
      reasonably possible and the numerator shall be the number of
      such months during which the parties were married and not finally
      separated. The benefit to which the coverture fraction is applied
      shall include all postseparation enhancements up to a date as
      close to the time of trial as reasonably possible except for
      enhancements       arising   from   postseparation     monetary
      contributions made by the employee spouse, including the gain or
      loss on such contributions.

23 Pa.C.S.A. §§ 3501 (c)(1), (2).

      This Court has observed:

      The first method, “immediate offset,” awards a percentage of the
      marital portion of the value of the pension to the party earning it,
      and offsets the marital value of this pension with other marital
      assets at equitable distribution. This method is preferred where
      the estate has sufficient assets to offset the pension, because it
      does not require the court to retain jurisdiction indefinitely. The
      second method, “deferred distribution,” generally requires the
      court to retain jurisdiction until the pension is collected, at which
      point the pension is divided according to the court's order. This
      method is more practical where the parties lack sufficient assets
      to offset the marital value of the pension.
             We have recognized that neither distribution scheme will be
      appropriate to all cases. Rather, the trial court must balance the
      advantages and disadvantages of each method according to the
      facts of the case before it in order to determine which method
      would best effectuate economic justice between the parties.

Conner v. Conner, 217 A.3d 307, 312 (Pa.Super. 2019) citations omitted.

      In the matter sub judice, Husband first avers the trial court erred in

accepting and approving the Master’s alleged failure and refusal to set a

present value for Wife’s PSERS pension. Husband posits such failure

constituted a derogation of the Master’s duty and an abuse of her discretion.

Brief of Appellant at xiii, 4.   Husband states the Master refused to do so in


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light of her “unwillingness to contradict her preconceived notions as to the

valuation of such benefits.” Brief of Appellant at xiii.

       In support of his position, Husband points to the Master’s erroneous

view at the hearings on December 5, 2018, December 27, 2018, that the value

of the PSERS Benefit for purposes of equitable distribution was the accrued

death benefit as set forth in the annual PSERS Statement issued on June 30

of each year, despite the parties’ experts’ explanations to the contrary. Id.

at 4.1     Husband also asks this Court to disregard the testimony and

calculations of Wife’s expert “as it is based upon at least a triad of erroneous

assumptions” and “supplant the nonfinding of the Lower Court with [our] own

finding of value as requested.” Id. at 5-7, 11. Specifically, Husband urges

this Court to make a finding as to the present value of Wife’s PSERS pension

by choosing one of the several calculations provided by Husband’s expert. Id.

at 9-10.

       Husband next maintains the trial court erred and abused its discretion

in failing to order an immediate offset of the marital portion of Wife’s PSERS

benefit against other marital assets. Husband reasons that the immediate

offset method historically has been the preferred method of distributing a

Defined Benefit Pension Plan, although he believes the Master revealed a

predisposition in this matter to the contrary.     Id at 12-15.   Husband also


____________________________________________


1 As Husband notes, the Master eventually acknowledged her error. Id. at 4.
(citing N.T. Divorce Hearing 15/5/18-12/27/18 at 65-66).

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points to numerous factors that he deems command an immediate offset of

Wife’s defined benefit to effect economic justice. Id. at 16-18.

      Both parties presented expert testimony at the Master’s Hearing.

Husband’s expert, Jonathan D. Cramer, is a licensed actuary who has testified

in Berks County, among others, regarding the issue of valuation of pension

benefits, including PSERS.     Wife’s expert, William Ehrich, Esquire, is an

attorney whose practice focuses on the preparation of ADRO's, DRO's, and

QDRO's for the purposes of distributing pension benefits.          The parties

stipulated that both Mr. Cramer and Mr. Ehrich were “expert[s] in regard to

pension evaluations.” N.T. Divorce Hearing, 12/5/18-12/27-18, at 6.

      As the trial court noted, the Master found a significant discrepancy of an

amount nearly $100,000.00 among the numerous, final valuations presented

by each expert. These valuations differed based on whether each expert used

a retirement age for Wife of 58.1 or 62, as well as other variables, such as the

applicable interest rate. Trial Court Opinion, 10/9/19, at 2-3. In finding no

error of law or fact in the Master’s determination that a deferred distribution

of the marital portion of Wife’s PSERS pension would be the most equitable

solution, the trial court found the Master had clearly articulated the factors

and explained the weight she afforded to each in her recommendation as

follows:

      Both experts were knowledgeable in regard to the PSERS pension
      but approached their valuations using very different interest rates
      causing huge differences in the valuations. Mr. Cramer assumed
      an effective 2.84 discount rate in determining his valuation and

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     Mr. Ehrich assumed an effective 4.55 discount rate. Mr. Cramer,
     within the report of his second explanatory letter and on the stand,
     and Mr. Ehrich, on the stand, agreed that the difference between
     their two reports was attributable to the different discount rates
     they employed. Both experts justified the use of their discount
     rates by referring to tables used by two different entities. Mr.
     Cramer used the PBGC annuity valuation interests, and Mr. Ehrich
     uses the most recent Variable Premium Rates together with PBGC
     2018 mortality tables. Neither expert succeeded in convincing me
     that their method of valuation was more valid than the other
     method used.
            Mr. Myers provided a Memorandum of Law regarding the
     policy reasons for applying immediate offset over deferred
     distribution. Although the immediate offset method has been
     preferred, at least from cases dating more than 25 years ago, the
     most recent amendment to the divorce code reflected in 23
     Pa.C.S.A section 3501 (c) sets forth specific instruction for
     distribution of a defined benefit plan for both immediate offset and
     deferred distribution without expressing any preference for which
     distribution method is used. The focus should remain on Section
     3502's charge to equitably divide the marital property.
            In this matter, there is a huge discrepancy between the
     valuations of each expert based on whether they used a
     retirement age of Wife of 58.1 or 62. Wife gave no indication as
     to when she was planning to retire. If I choose a valuation using
     a retirement date of 58.1 and Wife continues to teach until she is
     62, then I have seriously compromised Wife's economic parity in
     this divorce. If I use a retirement age of 62 and Wife retires at her
     earliest retirement age of 58.1, I have seriously compromised
     Husband's economic parity in this matter. Examining the experts'
     reports with the experts using the common valuation date based
     on Wife's 2017 PSERS statement and assuming a retirement at
     age 58.1, as is used in the PSERS statement to determine its
     present value of $299,938 (including both marital and non-marital
     portions), the marital value determined by Mr. Cramer and Mr.
     Ehrich differ by almost $100,000. This is not a situation in which
     averaging the two values is practical or valid as frequently occurs
     with real estate valuations. This is a situation in which the fact
     finder must decide who is right and who is wrong. Considering the
     validity of both valuation methods, it is impossible to arbitrarily
     pick one of the values. It is just not equitable to do that.
            In addition, Husband's expert provided valuations using
     every different statement with which he was provided, in addition
     to providing a valuation using the current monthly retirement

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       benefit from 2017 and 2018, giving me at least 9 different
       valuations from that expert alone. It would be arbitrary to simply
       choose one of Mr. Cramer's values to distribute the pension to
       Wife. Mr. Myers advocates for the use of one of the three 2018
       statement valuations as being closer to the date of distribution.
       However, that still requires me to determine whether Wife will
       retire at age 62 or 58.1 or using the valuation of her current
       pension amount as if she was no longer employed in 2018 when
       the parties actually separated in 2015. Husband's expert did not
       provide a valuation of the pension as if Wife discontinued
       employment as of the date of separation in 2015.
              As I said during the first meeting with these parties, the
       amount of variables in these valuation processes leads me to
       believe that the fairest way to distribute Wife's PSERS pension is
       to divide the marital portion by QDRO. I still believe this to be
       true. I gave the parties an opportunity to agree on a value by
       stating that I believed that PSERS was the entity with the surest
       knowledge of what the plan had accumulated for Wife. Husband
       would not agree. I did state my experience with PSERS plans
       during this process, but my decision in this matter has nothing to
       do with knowledge of these plans outside of the evidence
       presented in this case. This process is to secure equitable
       treatment of both parties as stated in section 3502. Nothing could
       be more equitable and could assure economic parity to these
       parties than the division of the marital portion of Wife's PSERS
       equally to both parties. That allows Wife to make the decision as
       to when she retires at the time such a decision should be made
       rather than projecting that decision onto Wife when she is only 41
       years old today. It also requires the parties to share the risks
       inherently involved in the collection of a pension, especially one
       such as this which is underfunded as stated by Mr. Cramer during
       his testimony. Without the parties agreeing to a value of this
       PSERS plan, I do not have the evidence or personal resources to
       arbitrarily choose one of the many valuations presented to me to
       apply an immediate offset, particularly considering the great
       disparity between the expert opinions. Consequently, my
       recommendation for distribution of property will include the equal
       division of the marital portion of Wife's PSERS pension.

Master’s Report and Recommendation for Equitable Distribution, 2/19/19, at

6-9.




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       The Master determined, and the trial court agreed, that rather than

engage in speculation as to what Wife’s retirement age will be and as to which

one of each expert’s multiple calculations represents a correct immediate

offset valuation, a division of the marital portion of the PSERS pension by

QDRO would be the most equitable resolution.

      Similarly, in vacating the trial court’s decision to use the immediate

offset method to distribute the husband's Civil Service Retirement System

pension and at the same time retain jurisdiction to allow the pension to be

revalued in event husband retired before age 65, this Court observed:

      [E]ach party introduced expert testimony analyzing the present
      value of the pensions of both Husband and Wife. Wife's federal
      civil service retirement pension was valued at $5,478 and is not
      at issue. The conclusions of the experts with regard to the value
      of Husband's pension, however, varied significantly, depending
      upon retirement age, the discount rate and other variables
      utilized. The trial court, itself, remarked that the valuations placed
      upon Husband's pension ranged from “a low of $24,205 to a high
      of $170,348.78.” Opinion, dated July 11, 1991, at 3. The trial
      court commented that:
            The protracted proceedings in this case have served to
            underscore the less than scientific ability of experts to
            reach a fair valuation of a fully vested, but not matured,
            defined benefit pension.
      Opinion, dated 7/11/91 at 5.
             From this comment and the testimony of the pension
      experts, we fail to understand how the trial court, with equity,
      could have used the immediate offset method in distributing
      Husband's pension in the present case. The trial court has, in
      essence, utilized a present value to order a deferred payment. We
      have held such determinations to be an abuse of discretion in the
      past. Here, we are likewise constrained to find that a formula for
      the distribution of marital assets utilizing the deferred distribution
      method where the marital asset offset is based on present value
      is inappropriate.


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Elhajj v. Elhajj, 605 A.2d 1268, 1270 (Pa.Super. 1992) (citations omitted).

      In the same vein, the Conner Court employed the following rationale

in support of its finding that the trial court had abused its discretion by

adopting a present value for the husband’s judicial income, a retirement

annuity:

      Likewise, the soundness of the trial court's valuation is speculative
      at best due to the lack of evidence supporting the court's arbitrary
      determination that Husband would retire at age 65. There is
      ample empirical and statistical evidence to justify the conclusion
      that all workers do not retire at the same age. A variety of factors
      impact on an individuals [sic] selection of a retirement age. In the
      great majority of qualified defined benefit plans the participant is
      given an option to retire within a range of dates. The breadth of
      this range is from the date an individual becomes vested and
      decides to opt for a vested deferred retirement benefit ... to the
      date an individual is required to terminate employment as a result
      of demonstrable physical or mental incapacity to perform ....
      Because of the actual range of retirement options available to the
      employed spouse, evaluators who assume that all workers retire
      at the same age or point are to be viewed with skepticism.

Conner v. Conner, 217 A.3d 301, 313–14 (Pa.Super. 2019) (citation

omitted) (brackets in original).

      Husband’s assertions to the contrary, the Master and, subsequently, the

trial court, did not contravene the purpose of the Divorce Code by “refusing”

to make an immediate offset valuation of Wife’s PSERS benefit. Rather, upon

hearing the expert testimony and reviewing their numerous valuations, the

Master determined that a deferred distribution of the marital portion of Wife’s

PSERS pension would be the most equitable method in light of the

circumstances presented herein. Following its review, the trial court agreed.


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      Husband essentially asks this Court to reweigh the testimony and

calculations of the experts and give credence to that of Mr. Cramer in

assigning a present day value for the immediate offset of the marital portion

of Wife’s PSERS pension. However, the trial court, as finder of fact, was “free

to believe all, part, or none of the evidence,” and this Court will not disturb

the trial court's credibility determinations. Lee v. Lee, 978 A.2d 380, 382 (Pa.

Super. 2009). Mindful of the trial court’s wide discretion to value assets for

purposes of equitable distribution and this Court’s highly deferential standard

of review, we find no error in the trial court’s decision to adopt the Master’s

reasoning that the deferred distribution method would best effect economic

justice between Husband and Wife.

        Finally, Husband argues the following language in the May 23, 2019,

Order fails to protect his interest in Wife’s PSERS pension in the event of her

decease or disability, in light of the fact that a PSERS Account Statement

provides information for a participant relative to the appointment of a

beneficiary: “The QDRO[2] shall provide that Husband is to continue to collect

his portion in the event of the death of Wife, if the plan so allows.”   Brief of

Appellant at 18-20. Husband baldly posits the Order should require that Wife


____________________________________________


2 “A QDRO is an order which creates or recognizes the rights of an alternate
payee to receive all or a portion of the benefits payable to a participant under
[a pension] plan.” Getty v. Getty, 221 A.3d 192, 195 n.4 (Pa.Super. 2019)
(citation omitted).



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designate him to be the beneficiary of the death and/or disability benefit of

the PSERS pension.    Id. at 21.

      While this Court is not bound by the holdings of our colleagues in the

Commonwealth Court, our settled precedent permits us to turn to those

decisions for guidance when appropriate and cite to this authority where it is

persuasive. Commonwealth v. Hunt, 220 A.3d 582, 591 (Pa.Super. 2019).

In Kirsop v. Pub. Sch. Employes' Ret. Bd., 747 A.2d 966, 967 (Pa.Commw.

2000), the Commonwealth Court considered an appeal from an order of the

Public School Employees' Retirement Board which held that a former spouse

was not entitled to 100% of the proceeds from the retirement account of her

deceased former husband but rather was limited to 50% of the death benefits

pursuant to a marital settlement agreement and an unexecuted QDRO.

Following husband’s death, former wife received notification from PSERS of its

intention to pay her 100% of his death benefits in accordance with the

nomination of benefits form; however, after learning that the parties had been

divorced and of the existence of the marital settlement agreement, PSERS

requested copies of the divorce decree, the agreement, and the unsigned

QDRO. Thereafter, former wife was informed that she was entitled to just

50% of the marital portion of the retirement benefits as specified in the marital

settlement agreement and incorporated into the divorce decree. PSERS

concluded that these documents were “a clear written indication of the

decedent's desire to change the terms of the beneficiary designation.... [and


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that PSERS] is required to apportion the death benefit in accordance with the

Court Order.” Id.

      The Court stated its displeasure with former wife for failing to perform

her duty under the marital settlement agreement and called her attempt to

use that failure as the basis for her argument she is entitled to 100% of the

benefits “disingenuous.” The Court further noted that if former wife had failed

to finalize the QDRO and former husband had filed a new beneficiary form

naming the couple's two children as the beneficiaries to her exclusion, she

would be arguing that the QDRO and the settlement agreement show the

intent of the parties that she was entitled to 50% of the marital share of the

PSERS benefits. Id. at 970-71, n. 6. The Court highlighted, id. at 970, that

Section 3323(d) of the divorce code which provides:

      (d) Substitution for deceased party.--If one of the parties dies
      after the decree of divorce has been entered, but prior to the final
      determination in such proceeding of the property rights and
      interests of the parties under this part, the personal
      representative of the deceased party shall be substituted as a
      party as provided by law and the action shall proceed.

23 Pa.C.S.A. § 3323(d).

      As the foregoing illustrates, PSERS is bound to enforce a QDRO that

works as an attachment order of one’s pension fund pursuant to the Divorce

Code even where that QDRO has not been properly executed. Herein, the

QDRO shall provide that Husband is to collect his portion of Wife’s PSERS

benefit in the event of her death. PSERS will be bound to enforce this provision




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of the Order; therefore, Husband’s unsupported claim that his interest in

Wife’s pension is not protected lacks merit.

    Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2020




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