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FRANK ALTIMARO AND THERESA ALTIMARO v. PHILLIP BOHN V. MELLON BANK (03/18/88)

filed: March 18, 1988.

FRANK ALTIMARO AND THERESA ALTIMARO, APPELLANTS,
v.
PHILLIP BOHN V. MELLON BANK, N.A.



Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. GD81-10189.

COUNSEL

James R. Cooney, Pittsburgh, for appellants.

Jeffrey T. Barbour, Pittsburgh, for Mellon, appellee.

Rowley, Tamilia and Popovich, JJ.

Author: Popovich

[ 372 Pa. Super. Page 266]

This is an appeal from the order of the Court of Common Pleas of Allegheny County ruling that the execution of judgment involving an ERISA*fn1 plan exempted the plan from garnishment by the appellants/Frank and Theresa Altimaro. We affirm.

[ 372 Pa. Super. Page 267]

The facts, as they appear of record, reveal that on April 21, 1981, the appellants confessed judgment against Phillip Bohn/appellee, an employee of Mellon Bank, in the amount of $30,000. Thereafter, the appellants initiated execution proceedings, and, pursuant thereto, interrogatories were served upon Mellon Bank/garnishee. In response, Mellon answered that the appellee was a member of the "Mellon Bank Profit Sharing & Savings Plan", and, as such, the appellee's benefits under the plan were not subject to garnishment.

After the interrogatories and answers thereto were placed at issue, but prior to trial, counsel for both parties agreed to submit the matter as a case stated. The Administrative Judge entered an appropriate order assigning the case to a judge for disposition. Thereafter, the judge presiding over the case entered an opinion and order holding that "the Mellon Plan is not formally labeled a pension plan but the effect of the Plan is to provide retirement benefits for the defendant[/appellee] and, as such, comes within ERISA." As a result, the appellants were denied the right to garnish the $6,000 held by Mellon in Bohn's account. This appeal ensued.

The initial issue which we need to address relates to whether Mellon's "Profit Sharing and Savings Plan" is a "pension plan" under ERISA, for, if it is, garnishment proceedings by the creditors/appellants are precluded under the pre-emptive authority of ERISA.

As stated most recently by a panel of this Court:

"[T]he question whether a certain state action is preempted by federal law is one of congressional intent. '"The purpose of ...


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