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MARCIA STILLMAN DASHER v. PAUL R. DASHER (06/02/88)

filed: June 2, 1988.

MARCIA STILLMAN DASHER, APPELLEE,
v.
PAUL R. DASHER, APPELLANT



Appeal from Order of the Court of Common Pleas, Family Division, of Bucks County, No. A06-80-60237-DQYR-10.

COUNSEL

Michael E. Fingerman, Philadelphia, for appellant.

Jonathan Braff, Philadelphia, for appellee.

Brosky, Wieand and Beck, JJ. Beck, J., files a concurring opinion.

Author: Wieand

[ 374 Pa. Super. Page 97]

The principal issue in this appeal from a decree awarding equitable distribution of marital property is whether the trial court erred when it allowed interest on the distributive award made to one of the spouses for the period between separation and the entry of the decree of distribution.

Marcia Stillman Dasher, appellee, and Paul R. Dasher, appellant, were married on June 30, 1957. The couple separated in September of 1971, when the wife-appellee left the marital residence. She instituted two divorce actions, one in 1971 and one in 1978, both of which were dismissed for lack of prosecution. She commenced a third divorce action on August 11, 1980, after enactment of the Divorce Code of April 2, 1980, P.L. 63, 23 P.S. § 101 et seq.

The trial court, following a trial de novo,*fn1 entered a decree awarding wife-appellee fifty (50%) percent of the marital property, minus a sum which the wife had previously removed from a joint savings account. The total award to the wife was $61,700.00. To this, the trial court added interest for the fourteen (14) year period between the separation of the parties and the entry of the court's decree. This interest, according to the court's computation, was

[ 374 Pa. Super. Page 98]

$65,076.00*fn2 and increased the amount payable by husband-appellant to $126,776.00.

Whether prejudgment interest may be awarded as part of a decree of equitable distribution is an issue which has not been addressed by the appellate courts of this Commonwealth. As a general rule, however, a successful litigant is entitled to interest beginning only on the date of the verdict. Sands v. Pennsylvania Ins. Guaranty Ass'n., 283 Pa. Super. 217, 227, 423 A.2d 1224, 1229 (1980). See also: 42 Pa.C.S. § 8101. "[P]rejudgment interest is compensation allowed by law or fixed by contract for the use or detention of a plaintiff's property by the defendant." Verner v. Shaffer, 347 Pa. Super. 206, 210, 500 A.2d 479, 481 (1985). Prejudgment interest for breach of contract is recoverable "[i]f the breach consists of a failure to pay a definite sum in money or to render a performance with fixed or ascertainable monetary value." Id., quoting Restatement (Second) of Contracts, § 101. It may also be awarded when a "defendant holds money or property which belongs in good conscience to the plaintiff, and the objective of the court is to force disgorgement of his unjust enrichment." Sack v. Feinman, 489 Pa. 152, 164, 413 A.2d 1059, 1065 (1980), quoting D. Dobbs, Remedies 169-170 (1973). Prejudgment interest in such cases is a part of the restitution necessary to avoid injustice. See: Restatement of Restitution, §§ 156 and 157.

The courts of other jurisdictions have refused to award prejudgment interest in cases involving the equitable distribution of marital property between spouses. The reason generally given for this rule is that the individual rights of the parties to specific property or funds is not established until distribution has been determined by the court. Until a decree of distribution is entered, the spouse in possession of ...


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