CAPPY, Justice, dissenting.

For the reasons that follow, I am constrained to respectfully dissent.

The majority herein holds 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.

(Maj. op. at 402-403) (emphasis added).

Thereafter, in an apparent effort to reduce the harshness of the announced rule, the majority goes on to conclude that any

increases in retirement benefits payable to the employee spouse, between the date of marital separation and the date the non-participant spouse begins receiving benefits which are not attributable to the efforts or contributions of the participant-spouse, . . . may be shared by the non-participant spouse based upon his or her proportionate share of the marital estate.

(Maj. op. at 403).

The majority correctly states that under the Divorce Code the marital portion of the pension is the benefit which the marital partnership acquired as of the date of separation. The majority then concludes that the marital partnership has acquired as of the date of separation a benefit calculated by using the participant spouse's salary as of the date of separation and, furthermore, that a benefit calculated by using the participant's salary as of a later date (which the majority apparently assumes will be higher than at separation), will result in the non-participant spouse receiving more than what the marital partnership acquired prior to separation.

The majority's ruling would be correct if as of the date of separation the participant spouse had already acquired a final retirement benefit for the years worked during the marriage based on that spouse's date-of-separation salary and if all increased retirement benefits are deferred compensation for work performed after separation. However, neither is the case. The majority's ruling is based on three assumptions that I believe to be demonstrably incorrect. First, the majority assumes that, as of the date of separation, the participant spouse has acquired the right to receive, at the very minimum, a pension benefit calculated by using the participant's salary as of the date of separation; second, the majority assumes that an asset cannot be marital if it depends on any efforts or contributions made after separation; and third, the majority assumes that its result is fair because the non-participant spouse would otherwise receive benefits based upon earnings attributable to increased efforts and enhancement of job skills occurring after separation and therefore not attributable to the marriage.

The majority is incorrect in assuming that a participant spouse has acquired the right to receive, at the very minimum, a pension benefit based on his salary as of the date of separation. To the contrary, the benefit that he will receive upon retirement will be calculated by using his salary during the final years of his employment. If his average salary during these years is less than his date-of-separation salary, his benefit will be less than a benefit based on his date-of-separation salary.

As of the date of separation, this was a vested pension. But the parties had acquired only a right to receive retirement benefits for the years that Mr. Berrington worked during the marriage that would be calculated primarily by looking to his salary shortly before he retired. As of the date of separation, the parties had not acquired any right to receive a specific amount of money for the years worked prior to separation. What they had acquired as of the date of separation was only a "promise" from the employer, an inchoate right if you will, to pay them benefits for the years worked during the marriage based upon a particular formula set forth in the pension plan contract upon the occurrence of certain post-separation contingencies. The final benefit for the years worked during the parties' marriage will be calculated by considering Mr. Berrington's subsequent earnings and incentive awards during his continued years of service. It is this promise acquired during the marriage to pay benefits for the years worked during the marriage that the majority fails to recognize as being earned during the marriage, and thus, improperly labels as "after-acquired property." Under the employer's promise, the participant spouse's salary at the date of separation is not determinative of the amount that he or she will receive upon retirement. Thus, in valuing the pension benefit, the participant spouse acquires during the marriage, a promise to make deferred compensation for the marriage years based upon a formula that could produce pension benefits higher or lower than the amount that would be arrived at based upon earnings at the date of separation.

Under these circumstances, it is clear that the inequity resulting from the majority's approach can cut both ways. The general assumption may be that the participant spouse's salary will increase after the date of separation, resulting in his becoming entitled to a correspondingly larger pension upon retirement. However, in a downward economy, as some might say we have endured over the past few years, it is wholly within the realm of reasonable possibility that economic cut-backs will force employees to take income cuts, resulting in substantially lower salaries at retirement. In those instances, it is the participating spouse who suffers under the legal fiction created by the majority.

The majority's second assumption — that an asset cannot be considered marital if its value depends upon any efforts or contributions made after the date of separation — is inconsistent with the prevailing view that non-vested pension benefits are marital property regardless of the fact that they are subject to contingencies. It is clear from even a cursory reading of the majority opinion that the majority recognizes that both vested and non-vested pension plans are marital property subject to equitable distribution. In Braderman v. Braderman, 339 Pa. Super. 185, 488 A.2d 613 (1985), the rationale was succinctly set forth: "These benefits constitute deferred compensation for services defendant-husband performed during the marriage and therefore, he acquired his interest in these benefits while married to plaintiff-wife . . . He worked for and earned the right to these payments." Id. at 196, 488 A.2d at 618. The Superior Court concluded that pension benefits are marital property even though the marriage terminated at a time when benefits were non-vested, despite its recognition of the fact that non-vested benefits are subject to a number of contingencies: "These benefits have accrued, but are still subject to the condition that the employee continue his employment. They will be forfeited by discharge, voluntary termination, or death." Id. at 192, 488 A.2d at 616.

In concluding that non-vested pension benefits are nothing more than deferred compensation and thus, marital property (i.e., marital property is the promise to pay for the time that you have already worked provided that certain things occur), the Superior Court has created a foundation on which to build a fair and equitable resolution in the case sub judice. Once this promise is defined as marital property, there can be no reasonable explanation for ignoring future events that define the benefits which flow from the promise. The persuasive and well-reasoned rationale utilized by the Superior Court for finding non-vested pension benefits to be marital property is equally applicable to the issue presented here.

Third, the majority errs when it concludes that its result is fair because the non-participant spouse would otherwise receive benefits based on increased efforts and enhancement of job skills occurring after separation and therefore not attributable to the marriage. The majority implicitly assumes that the post-marital salary increases of the participant spouse result from the participant spouse bringing new energy and skills to the job. However, the typical case in which the court awards a non-participant spouse a share of a defined benefit pension does not involve persons in their twenties or thirties who have been married only for a short time. Rather, experience teaches that, in the typical situation, the time and energy that participant spouse devoted to the job during the marriage and the work skills developed during that period (frequently made possible because of the contributions of the non-participant as homemakers and primary caretakers of the children), rather than increased efforts or work skills developed after marriage, are the most significant factors explaining increased post-marital earnings in cases involving the use of a deferred distribution of a defined benefit pension.

Since the Divorce Code has given the Courts the responsibility for achieving equitable results, 23 Pa.C.S.A. § 3102 (a)(6) (formerly 23 Pa.C.S.A. § 102(a)(6)) and 23 Pa.C.S.A. § 3502 (formerly 23 P. S. § 401), the law that we develop must be governed by the import of our rulings. In most cases involving the use of a deferred distribution of a deferred pension benefit, the non-participant spouse will be the primary homemaker and caretaker of the parties' children. This spouse will also in most cases be the wife. In accordance with 23 Pa.C.S.A. § 3502(a)(7) (formerly 42 Pa.C.S.A. § 401), the most important thread that consistently runs through the rulings of this Court and the Superior Court involving the Pennsylvania Divorce Code is the full recognition given to homemaking and caretaking. Since pension benefits are frequently the most significant marital asset in instances in which a deferred pension distribution approach is used, the majority ruling here unravels the standing case law which has achieved very consistent and, in my view, very correct results.

To summarize, the paramount difficulty I have with the majority's position is understanding how, in a deferred compensation situation, the majority can characterize the participant spouse's post-separation salary as after-acquired property rather than as an unknown factor that will be used in calculating the value of deferred compensation earned during the marriage. A promise to pay an amount based upon a formula that may be influenced by efforts after separation is "property" acquired at the time of the promise under a normal definition of the term.

Constructive criticism, well intended as it may be, is often useless unless accompanied by a reasonable alternative. Although I agree with the majority that marital property includes only property acquired during the marriage, it is my position that, where the property in question is deferred compensation, the property acquired during the marriage includes those benefits that the participant and non-participant spouse will actually receive for the years during which the parties were married. In my view, at the time of the parties' separation, a participant spouse has acquired a promise from the employer to make deferred compensation payments (for the years of the marriage) based upon a formula that can produce higher or lower pension benefits than those calculated based upon the employee's earnings at the date of separation. Thus, the marital property acquired during the marriage includes this promise to make future payments for the years worked during the marriage. Therefore, I propose that we follow the deferred distribution approach utilized in cases involving non-vested pension benefits.

As recognized by the majority, there are two approaches to distributing a pension, the immediate offset method and the deferred distribution method. The immediate offset method provides the advantage of finality in distribution, and avoids prolonging hostility between the parties. However, deferred distribution is often necessary because other marital assets may be insufficient to offset a pension award. Moreover, the Superior Court has stated in numerous opinions that deferred distribution is the preferred method of dividing non-vested speculative pension benefits, which may never actually be received by the employee spouse due to contingencies such as early termination or death. Elhajj v. Elhajj, 413 Pa. Super. 578, 581, 605 A.2d 1268, 1270 (1992); Lyons v. Lyons, 401 Pa. Super. 271, 280, 585 A.2d 42, 47 (1991); Lowry v. Lowry, 375 Pa. Super. 382, 401, 544 A.2d 972, 982 (1988); DeMasi v. DeMasi, 366 Pa. Super. 19, 50, 530 A.2d 871, 886 (1987); Flynn v. Flynn, 341 Pa. Super. 76, 83, 491 A.2d 156, 160 (1985). Valuation difficulties and the potential unfairness of immediate distribution of pension benefits that may never come to fruition, or decline due to salary reductions in the later years as a result of today's economy, also weigh in favor of using the deferred distribution approach.

In my view, once deferred distribution is chosen, there is a glaring inconsistency in caselaw which favors a "wait and see approach" where it is not clear whether employees will, in fact, receive any benefits at all and, at the same time abandons that approach in a deferred distribution scenario where the "wait and see approach" would remove all doubt as to the exact entitlement of the respective parties. Why should we not adopt exactly the same posture in a situation where the pension is vested but the benefits are, as yet, unmatured and undetermined, where the parties are in a deferred distribution posture?

In Lyons v. Lyons, 401 Pa. Super. 271, 585 A.2d 42 (1991), the Superior Court has emphasized that the method to be selected for evaluating pension benefits is that which will "best effectuate economic justice between the parties." Id. at 281, 585 A.2d at 47. I agree with that court and the learned trial court below, that the real issue is one of economic justice, especially in light of the fact that the law is sensible and settled that pension benefits are marital property even though there are future requirements imposed on employees before benefits are ever received. It is incomprehensible to me as to why we should reach different results depending upon whether the question with which we are dealing involves deferred compensation (i.e., marital property defined as a promise to pay for the time that you have already worked, provided that certain things occur which would cause the pension to vest) or deferred compensation (i.e., marital property defined as a promise to pay for the time that you have already worked, provided that the amount to be paid to you will be determined when all the final numbers are in).

In an ill-advised effort to resolve all future interest immediately, my brethren in the majority have been thrust into the uncomfortable position of immediate resolution with full knowledge that the consequences will more often than not be unfair to one or the other party. In addition, the majority has done so without attempting to explain the pressing need for the immediate valuation of the non-participant spouse's pension interest in a case involving the deferred distribution of a defined pension benefit.

In the case sub judice, in accordance with the pension plan, Mr. Berrington made a small mandatory cash contribution after the date of separation. While his pension will ultimately be of higher value due to his decision to contribute and Westinghouse's incentive in return for his contributions, such contributions were specifically defined, and their minimal nature (approximately $13,700 from the date of separation on July 15, 1984 through the year 1990) will have little effect in the generation of the final value of his pension benefit. (R.R. pp. 99a, 268a). Instead, it is his continued employment and the potential salary increases and incentive awards that will determine the final value of his pension. A posture that, in my strong opinion, Mr. Berrington achieved with the substantial aid and sacrifice of Mrs. Berrington during their 29 years of marriage. In my view, most of the pension benefit is not based upon an employee cash contribution made after separation.

Therefore, and for the reasons stated above, I would reverse and remand to the trial court with instructions to separate out any benefits attributable to the husband's actual post-separation cash contributions. The balance would be available for distribution to the wife under the proper equitable distribution formula at the appropriate time, the date of retirement.

The approach I have suggested in the case sub judice not only recognizes that there is no need for immediate valuation but also best effectuates economic justice between the parties. Additionally, it would obviate the need to create legal fictions in order to resolve immediately that which need not be resolved immediately and, better yet, totally eliminate the need to create an internally inconsistent fabrication which offers the non-participating spouse concomitant benefit increases in all areas which are not directly tied to salary increases.

For these reasons, I respectfully dissent.

MONTEMURO, Justice, dissenting.

Before the majority decided the instant case, there were two distinct and well-defined methods of distributing a defined benefit pension plan; immediate offset and deferred distribution. Here, the majority departs from these two discrete methodologies by adopting a deferred distribution scheme which is an amalgamation of immediate offset and defined distribution concepts. Because this distribution is premised on a questionable valuation mechanism, which consequently fails to compensate the non-employee spouse for waiting to receive her portion of the pension benefit, I cannot join the majority's opinion.

To grasp the flaw in the majority's reasoning, it is necessary to first understand how a defined benefit pension plan is funded, and then how such a plan should be evaluated for the purpose of equitable distribution. A defined benefit pension plan is a "form of deferred compensation [which is based on] a written plan established and maintained by an employer." 3 W. Cantwell, W. Troyan, H. Massler, Valuation Distribution of Marital Property 45-10, 45-26 (1990) [hereinafter Valuation Distribution]. M. Canan, Qualified Retirement and Other Employee Benefit Plans 133 (1989) [hereinafter Canan]. This type of pension is commonly funded via the accrued benefits method, or the projected benefits method. Valuation Distribution, supra, at 45-26-27. If the accrued benefits method is used, the plan develops a set of actuarial assumptions for each employee, and then, based on these assumptions, determines the cost of that employee's benefit for the year. Id. Under the projected benefits method, cost is not determined on a per employee basis, rather cost is determined on an aggregate basis for all employees. Id. However, no matter which funding method is employed, the plan starts with the conclusion, the amount the participant is entitled to receive at retirement under the terms of the plan, and works backward to the premise, that is, what amount the employer must set aside now to fund the future obligation. Canan, supra, at 134. This should assure that upon retirement, the retiree will receive the promised benefit.

Although an employer may fund the total cost of a defined benefit plan, such a plan "may provide for both required and voluntary contributions by the plan's participants." Canan, supra, at 142. This method of funding reduces the overall cost to the employer. However, the benefit available to the participant at retirement is still determined via a predefined formula which is set down in the written plan.

A problem arises when an individual, who is covered under a defined benefit pension plan, divorces before retirement. When this occurs, courts attempt to do economic justice between the parties by equitably distributing the marital portion of the pension. Two methods have historically been used to effect economic justice between the parties; immediate offset and deferred distribution. With an immediate offset, the present value of the employee spouse's defined benefit pension plan is determined at the time of the distribution hearing. King v. King, 332 Pa. Super. 526, 534, 481 A.2d 913, 917 (1984). See, Sutliff v. Sutliff, 518 Pa. 378, 381-2, 543 A.2d 534, 536 (1988) (property must be distributed with reference to its value at the date of distribution). The present value is calculated based on the following factors: the employee spouse's salary at the time of separation; the date the employee will begin to receive the benefit or has a right to receive the benefit; the length of the employee's employment during marriage; the total length of the employees' employment; and, the appropriate mortality and interest discount rates. Evaluation and Distribution, supra, at chap. 45; Elhajj v. Elhajj, 413 Pa. Super. 578, 581, 605 A.2d 1268, 1270 (1992). Once the present value of the marital portion of the benefit is determined, the court looks to whether there are sufficient marital assets to allow the employee spouse to retain full enjoyment of the pension, while giving to the non-employee spouse an offsetting portion of the other marital assets. Although immediate offset is preferred because it draws to a close the economic relationship between the parties, there are circumstances that preclude use of this methodology. W. Troyan, Pension Evaluation and Equitable Distribution, 10 Fam.L.Rep. (BNA) No. 4, Monograph No. 1, p. 3006 (November 22, 1983) [hereinafter Troyan]. For example, immediate offset is inappropriate when the pension has not vested, Lyons v. Lyons, 401 Pa. Super. 271, 280, 585 A.2d 42, 47 (1991), or when there are insufficient marital assets to effectuate the setoff, Elhajj, 413 Pa.Super. at 581, 605 A.2d at 1270; King, 332 Pa.Super. at 534; 481 A.2d at 917; Troyan, supra, at 3006. Under both situations, distribution must be deferred until the employee spouse's right to receive the benefit matures. Lyons, 401 Pa.Super. at 280, 585 A.2d at 47; Troyan, supra, at 3006.

If circumstance dictates that distribution be deferred, "a simple formula is devised which makes possible the future division of benefits pursuant to an allocation formula [set down] at the time of divorce." Valuation and Distribution, supra, at 45-60. This formula is simple because there are no present value calculations to be done, nor should any such calculations be made. Id.; Troyan, supra, at 3007; Elhajj, 413 Pa.Super. at 581, 605 A.2d at 1270; Endy v. Endy, 412 Pa. Super. 398, 403, 603 A.2d 641, 643 (1992). Rather, the coverture fraction is determined so that the portion of the pension benefit earned during marriage may be calculated. Once the fraction is determined, it is multiplied by the actual benefit available when the pension enters pay status. This simplistic method both attains economic justice, 23 Pa.C.S.A. § 3102 (a)(6), and complies with the mandate of the Divorce Code that only marital property is subject to equitable distribution, 23 Pa.C.S.A. § 3501 and 3502, because the coverture fraction separates the marital from the non-marital portion of the benefit. Therefore, with the passage of time, "the non-employee spouse will receive a decreasing percentage of an increasing benefit." Troyan, supra, at 3007.

Here, the majority has placed its imprimatur on a valuation scheme that allows for future distribution of the present value of a defined benefit pension plan. This freezes the non-employee spouse's share of the pension benefit at its date-of-separation value. Thus, when the benefit enters pay status, the non-employee spouse will begin to receive a benefit which has decreased in value through the passage of time. The majority attempts to compensate the non-employee spouse for the loss of the time value of money by allowing her to share in "increases in retirement benefits . . . which are not attributable to the efforts or contributions of the participant spouse." (Maj. op. at 403). However, with a defined benefit pension, such increases are nonexistent as the benefit is predefined under the terms of the plan. Thus, the non-employee spouse will not receive an equitable share of the pension benefit. Accordingly, I believe that the majority erred when it departed from the deferred distribution formula advanced by the commentators, See, Valuation and Distribution, supra, at 4560, Troyan, supra, at 3006-7, and ordered the deferred distribution of the present value of a defined benefit pension plan.

In addition, a departure from the traditional deferred distribution methodology is not necessitated merely because the instant plan is funded by contributions from both the employer and employee. The fact remains that this plan is a defined benefit plan. Thus, the method of funding should not affect the manner in which a deferred distribution is accomplished. However, if the instant plan was a defined contribution plan, rather than a defined benefit plan, it would be appropriate to determine the present value of the employee spouse's contributions to the plan. Once a present value determination is made, which is the balance in the employee spouse's contribution account as of the date of separation, the marital portion of the account (i.e. the coverture fraction) is calculated, and then equitably distributed between the parties. If distribution of this sum is to be deferred, the plan must place the non-employee spouse's share of the pension into a separate account where it will remain until the non-employee spouse's right to the benefit matures. During this period, any interest or dividends earned by the account accrue only to the non-employee spouse's benefit.

In sum, if the non-employee spouse is entitled to a pension benefit based on the employee spouse's salary at separation, the benefit should not be further reduced by the coverture fraction. To freeze the salary, and also bar the spouse from sharing in post-separation increases to the benefit, which arise solely from the time value of money, works an injustice to the non-working spouse. Thus, I cannot join the majority's opinion. Accordingly, I respectfully dissent.