J-A22026-19
                                  2019 PA Super 309


    JOHN WILLIAM GETTY,                        :   IN THE SUPERIOR COURT
                                               :      OF PENNSYLVANIA
                            Appellant          :
                                               :
                       v.                      :
                                               :
    MICHELE SUDER GETTY,                       :
                                               :
                            Appellee           : No. 208 EDA 2019


               Appeal from the Order Entered December 17, 2018
              in the Court of Common Pleas of Philadelphia County
                       Civil Division at No(s): 099078473

BEFORE:      MURRAY, J., STRASSBURGER, J.* and PELLEGRINI, J.*

OPINION BY STRASSBURGER, J.:                          FILED OCTOBER 15, 2019

       John William Getty (Husband) appeals from the order entered December

17, 2018, which denied his petition for declaratory judgment. We affirm.

       This case involves the application of an important1 change in

Pennsylvania law with respect to how pension plans are valued in divorce

cases. Specifically, on January 28, 2005, the Pennsylvania legislature enacted

legislation that overruled our Supreme Court’s holding in Berrington v.


____________________________________________
1 Among the amicus participants in Berrington, infra, were the following
entities: the Pennsylvania Chapter of American Academy of Matrimonial
Lawyers, the Women’s Bar Association of Western Pennsylvania, the Allegheny
County Bar Association – Family Law Section, the Women’s Law Project, NOW
Legal Defense and Education Fund, Pennsylvania National Organization for
Women, Senior Citizen Judicare Project, Community Women’s Education
Project, Supportive Older Women’s Network, National Center on Women and
Family Law, Inc., National Women’s Law Center, Northwest Women’s Law
Center, Women’s Law Center, Connecticut Women’s Education and Legal
Fund, and Older Women’s League.

* Retired Senior Judge assigned to the Superior Court.
J-A22026-19


Berrington, 633 A.2d 589 (Pa. 1993). In Berrington, a divided Pennsylvania

Supreme Court held that

       in a deferred distribution of a defined benefit pension, the spouse
       not participating may not be awarded any portion of the
       participant-spouse’s retirement benefits which are based on post-
       separation salary increases, incentive awards or years of service.
       Any retirement benefits awarded to the non-participant
       spouse must be based only on the participant-spouse’s
       salary at the date of separation.

633 A.2d at 594 (emphasis added).2

       On January 28, 2005, the Pennsylvania legislature passed subsection

(c) of section 3501 of the divorce code in an effort to reverse Berrington and

“adopt    a   coverture     fraction   methodology      [designed]   to   include   all

postseparation      enhancements         except   for    postseparation    monetary

contributions by the employee spouse in the value of the pension.” 23 Pa.C.S.

§ 3501 (comment to subsec. (c)). In other words, the pension was to be

valued using the employee-spouse’s salary as of the date of retirement, not

as of the date of separation as in Berrington. The marital portion of the

pension would be calculated by the use of a coverture fraction. See Smith v.

Smith, 938 A.2d 246 (Pa. 2007). Moreover, on June 15, 2005, the legislature

again amended subsection 3501(c) to provide that it was applicable to all

proceedings pending on or after January 28, 2005.




____________________________________________
2 The author of this opinion was the trial judge in Berrington. My ruling on
the pension valuation issue was reversed by this Court and this Court’s holding
was affirmed by our Supreme Court.

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J-A22026-19


        We now turn to the relevant factual and procedural history of the instant

matter. Husband and Michele Suder Getty (Wife) married on July 12, 1980,

separated on May 31, 1999, and Wife filed a complaint in divorce against

Husband on July 19, 1999. On December 23, 2004, an order was entered by

the trial court, which provided, in relevant part, that Wife was “awarded 65%

of Husband’s City of Philadelphia Municipal Employees Deferred Compensation

Plan (the Plan).”3 Order, 12/23/2004 at ¶ 1 (the Order). The trial court also

ordered Wife to submit the Order to the Plan administrator for processing.

        On December 29, 2004, Husband filed a motion for reconsideration of

the Order, arguing that Wife should not have been awarded 65% of the Plan,

and if she were to be awarded 65%, the trial court should amend its order to

clarify that “the 65% award should be of the marital portion of the Plan, not

the entire plan.” Motion for Reconsideration, 12/29/2004, at ¶ 3(b).          In

addition, on January 19, 2005, Husband filed a notice of appeal from the

Order.

        On January 21, 2005, the trial court granted the motion for

reconsideration in part.      Specifically, the trial court amended the Order to

provide that Wife should be awarded 65% of the marital portion of the Plan.

Order, 1/21/2005, at ¶ 1 (Amended Order).




____________________________________________
3   A divorce decree was entered on December 27, 2004.


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J-A22026-19


       On April 5, 2007, a panel of this Court quashed Husband’s appeal.

Specifically, this Court concluded that

       the trial court’s action in granting reconsideration rendered
       Husband's previously filed notice of appeal inoperative. Because
       the trial court granted reconsideration, the time for either party
       to file an appeal began to run anew on January 2[1], 2005, where
       the court’s order entered on that date, in addition to granting
       reconsideration, also constituted the entry of the court’s decision
       on reconsideration. Because the trial court’s order granting
       reconsideration rendered Husband’s notice of appeal inoperative
       and because Husband never filed a notice of appeal from the order
       granting reconsideration, this Court lacks jurisdiction over this
       matter.

Getty v. Getty, 917 A.2d 869, 871 (Pa. Super. 2007) (some capitalization

altered).

         No further action was taken in this matter until Wife filed a petition

with the trial court on January 22, 2009. In that petition, Wife requested that

the trial court order Husband to sign the QDROs she prepared, as required by

the Order and the Amended Order.4 Petition to Enforce Order of Court,

1/22/2009. On May 1, 2009, the trial court entered a QDRO as an order of

court (2009 QDRO). The 2009 QDRO, which was signed by Husband and Wife,

provided that Wife’s portion of the retirement benefit would be calculated


____________________________________________
4 “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.” Conway v. Conway, 209 A.3d 367, 372 (Pa. Super. 2019)
(internal citations and quotation marks omitted). “To be qualified, the order
must contain certain required information and may not alter the amount or
form of plan benefits.” Id. “In cases where parties have entered a marital
settlement agreement, a QDRO merely implements substantive rights already
created by the settlement agreement.” Id.

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J-A22026-19


using Husband’s “accrued monthly benefit as of the date of [his] retirement.”

QDRO, 5/1/2009, at ¶ 7.

      On August 27, 2018, Husband filed a petition for declaratory judgment.

In this petition, Husband argued that the Amended Order entered on January

21, 2005, was a final order, and therefore his divorce proceeding was not

pending on January 28, 2005, when the new version of subsection 3501(c)

became effective. Thus, Husband argues that notwithstanding the language

of the 2009 QDRO, the Plan should be valued using Husband’s salary as of the

date of the parties’ separation, not the date of his retirement. Wife responded

to the petition, arguing that because Husband appealed the Order, the action

was pending on January 28, 2005, and therefore subsection 3501(c), not

Berrington, should apply. Answer, 3/7/2019. In addition, Wife pointed out

that Husband agreed to the 2009 QDRO, which provided that the value of the

Plan should be calculated using Husband’s salary as of the date of his

retirement, which is consistent with subsection 3501(c). Memorandum of Law,

10/19/2018, at 3.

      The trial court heard argument on December 11, 2018, and on

December 17, 2018, the trial court entered an order denying Husband’s

petition for declaratory judgment, wherein it concluded that Husband did not

meet his burden of proof.    Husband timely filed a notice of appeal.     Both

Husband and the trial court complied with Pa.R.A.P. 1925.




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J-A22026-19


      On appeal, Husband argues, inter alia, that the trial court erred by

concluding that subsection 3501(c) applied in this case. Husband’s Brief at 4,

12. It is Husband’s position that the parties’ divorce action was not pending

on or after January 28, 2005, because Husband did not appeal from the

Amended Order. Id.

      “Pendency, in practice, has been said to be ‘the state of an

undetermined proceeding.’ 70 C.J.S., p. 420. Black’s Law Dictionary, 3rd Ed.,

p. 1345, defines the term as ‘the state of an action, etc., after it has been

begun, and before the final disposition of it’ (emphasis supplied).” Sch. Dist.

of Robinson Twp. v. Houghton, 128 A.2d 58, 60-61 (Pa. 1956). Instantly,

there is no question that this case was on appeal to this Court at the time

subsection   3501(c)   went   into   effect.   Thus,   this   case   meets   the

aforementioned definition of pending, as no final disposition had yet occurred.

Accordingly, we hold that because this case was pending, the trial court did

not err by applying subsection 3501(c).

      Moreover, even if we agreed with Husband that the lack of appeal from

the Amended Order rendered that order as a final order, this case was still

pending. The Amended Order did not become final until the time for appeal

expired, which was 30 days after its entry, or on February 24, 2005. Thus,

this case was still pending on January 28, 2005, as Husband could have

appealed the Amended Order and subsection 3501(c) applies. Therefore, in




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J-A22026-19


either instance, this case was pending on January 28, 2005, and the trial court

did not err denying Husband’s petition for declaratory judgment.5

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/19




____________________________________________
5 In his memorandum of law in support of his petition for declaratory
judgment, Husband argued that the trial court should invalidate the 2009
QDRO on the basis of mutual mistake. See Memorandum of Law, 8/27/2018,
at 3-5. However, Husband did not raise that issue in his Pa.R.A.P. 1925(b)
statement or in his brief on appeal. Therefore, this issue is waived. See
Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are
waived.”).

      Furthermore, on appeal, Husband argues that the trial court erred by
not applying an exception to the coordinate jurisdiction rule to revisit the 2009
QDRO. See Husband’s Brief at 4-5, 12-13, 14. However, Husband did not
raise that issue in his Pa.R.A.P. 1925(b) statement; thus, it is waived. See
Pa.R.A.P. 1925(b)(4)(vii). See Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa.
2003) (“One of the distinct rules that [is] encompassed within the ‘law of the
case’ doctrine is the coordinate jurisdiction rule.”); Commonwealth v.
McCandless, 880 A.2d 1262, 1268 (Pa. Super. 2005) (“[A] law of the case
claim is subject to waiver.”).

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