from the Order Entered December 17, 2018 in the Court of
Common Pleas of Philadelphia County Civil Division at No(s):
BEFORE: MURRAY, J., STRASSBURGER, J.* and
PELLEGRINI, J. [*]
William Getty (Husband) appeals from the order entered
December 17, 2018, which denied his petition for declaratory
judgment. We affirm.
case involves the application of an important 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.
Berrington, 633 A.2d 589 (Pa. 1993). In
Berrington, a divided Pennsylvania Supreme Court
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
633 A.2d at 594 (emphasis added).
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.
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)." Order, 12/23/2004 at ¶ 1 (the Order).
The trial court also ordered Wife to submit the Order to the
Plan administrator for processing.
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.
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).
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, 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 ...