decided: September 22, 1975.
COMMONWEALTH EX REL. SZAFRAN
Appeal from order of Court of Common Pleas, Family Division, of Philadelphia, No. 03739 of 1973, in case of Commonwealth of Pennsylvania ex rel. Frances Szafran v. Joseph Szafran.
Henry N. Fineman, for appellant.
Neil H. Stein, with him Robert Guzzardi, and Kremer, Krimsky & Luterman, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Concurring Opinion by Hoffman, J. Cercone and Spaeth, JJ., join in this concurring opinion. Concurring and Dissenting Opinion by Van der Voort, J.
Author: Per Curiam
[ 236 Pa. Super. Page 533]
Concurring Opinion by Hoffman, J.:
I concur in the Court's decision to affirm the lower court's order.
One word of clarification is necessary. In its opinion, the lower court stated that "[f]rom [appellant's] gross earnings, there is deducted $1041.37 per year under a pension plan which has a cash surrender value. The Court considers this deduction part of his income in view of Di Santi v. Di Santi, 221 Superior Court 435." I believe that the court's reliance on Commonwealth ex rel. Di Santi v. Di Santi, 221 Pa. Superior Ct. 435, 293 A.2d 115 (1972), was unfounded. In Di Santi, we stated that a profit sharing plan was to be evaluated by the following criteria:
"(1) whether participation in the plan is relatively voluntary or involuntary;
"(2) whether, and to what extent contributions are modest under the circumstances; and
"(3) whether defendant already possesses substantial assets in addition to the developing value of his interest in the pension fund." 221 Pa. Superior Ct. at 437, 293 A.2d at 116.
Appellee-wife does not contest that appellant's contribution to his pension plan was mandatory. Twenty
[ 236 Pa. Super. Page 534]
dollars a week is clearly a modest contribution. Finally, appellant is in debt and has few assets "in addition to the developing value of his interest in the pension fund." Under all the circumstances, however, I believe that the order of support was reasonable.
Concurring and Dissenting Opinion by Van der Voort, J.:
While I concur in the disposition of this case by an Order Per Curiam, I would reduce the Order of the Court of Common Pleas for support to $60.00 per week, basing this upon my consideration of the necessary entitlements of each party.
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