J-S61017-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF MICHAEL A. BENYO AND 

JEFFREY BENYO, INDIVIDUALLY

v.

SCOTT F. BREIDENBACH, ESQ., 

REPRESENTATIVE OF THE ESTATE OF 

MARSHA BENYO

 Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 324 EDA 2017

Appeal from the Judgment Entered April 18, 2018

In the Court of Common Pleas of Chester County Civil Division at No(s): 

2013-08348-CT

BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BOWES, J.: FILED MAY 13, 2019

Scott F. Breidenbach, Esquire, personal representative of the estate of 

Marsha Benyo (“Wife”), appeals from the judgment entered against her in this 

dispute arising from the property settlement agreement she reached with her 

late husband, Michael Benyo (“Husband”), whose estate is represented by his 

brother, Jeffrey Benyo. We affirm the verdict upon which the judgment was 

entered, but vacate the judgment and remand for further proceedings 

consistent with this memorandum. 

We glean the following facts and history from the certified record. 

Husband and Wife married in 1989. Husband was employed as a police officer 

with the North Coventry Township Police Department, and Wife worked as an 

account manager at Brown Printing Company. Husband’s employment 

entitled him to a defined benefit pension to which he made no personal 
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contributions, while Wife participated in a 401(k) retirement plan through her 

employer as well as a profit sharing plan. 

When Husband retired from his position as police chief in 2010, he 

elected a joint annuity benefits option through the Pennsylvania Municipal 

Retirement System (“PMRS”). Under this option, Husband received a lesser 

monthly payment than he would have received on a single-life annuity based 

solely upon his life expectancy, but the payments of $2,137.99 per month 

would continue to be paid to Wife, as his joint annuitant, for the remainder of 

her life. Wife continued to work following Husband’s retirement.

Husband filed a complaint in divorce on May 21, 2012, alleging that the 

marriage was irretrievably broken, requesting equitable distribution of marital 

property, and seeking that any property settlement agreement (“PSA”) 

reached by the parties be incorporated in the final decree of divorce. The 

parties executed a jointly-prepared PSA on June 18, 2012. PSA, 6/18/12, at 

5-6, 12. The agreement provided that it was to be incorporated into “any 

divorce decree that may be entered” and to “continue in full force and effect 

after such time as a final decree in divorce may be entered with respect to the 

parties.” Id. at 2. 

Pursuant to the PSA, Wife was to obtain Husband’s share of the marital 

residence and pay Husband for half of the property’s value within thirty days 

of the agreement. Id. at 6. The parties were to keep their respective bank 

accounts, vehicles, and personal property, but for the household furnishings,

which Wife would retain and pay Husband for half of the value. Id. at 6-7. 
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Husband and Wife agreed to evenly divide household debts, as well as joint 

bank accounts totaling approximately $120,000. Id. at 3, 10. As to 

retirement benefits, the PSA states as follows:

Husband agrees to waive all right, title and interest in Wife’s 

Brown Printing Profit Sharing Plan. Husband will sign any 

necessary paperwork to facilitate said waiver. Wife will agree to 

waive all right, title and interest in Husband’s Police Pension. Wife 

will sign any necessary paperwork upon demand to facilitate said 

waiver. In addition, Wife agrees to waive any death benefit from 

Husband’s Pension. She will sign any necessary paperwork to 

facilitate said waiver. At the time of the signing of this Agreement, 

Wife is to receive a one hundred percent (100%) death benefit. 

If the Plan Administrator of said Pension will not permit a waiver 

of said death benefit to Wife or a change of beneficiary based on 

Wife’s life expectancy, Wife will agree to sign any necessary 

paperwork, including a statement in writing that she waives the 

benefits and instructs her estate to make payment of any benefits 

it may receive to a beneficiary designated by Husband. As of the 

date of the signing of this Agreement, the designated beneficiary 

of the death benefit will be Jeffrey Benyo, who currently resides 

at 186 Upper Valley Road, Christiana, Pennsylvania. Unless Wife 

receives a written statement from Husband that the designated 

beneficiary has changed, any proceeds that she or her estate 

receives shall be paid to Jeffrey Benyo. It is understood that, if 

Wife fails to fulfill the obligation set forth in the Agreement, Jeffrey 

Benyo and/or the estate of Michael Benyo may pursue all claims 

he or the estate may have against Wife and may seek appropriate 

sanctions including but not limited to counsel fees.

Currently Husband is receiving monthly payments from his 

Police Pension. The aforesaid benefits were used for the benefit 

of both parties. As a result, Wife agrees to reimburse Husband 

for fifty percent (50%) of the net proceeds he received since 

October 2010. Said reimbursement shall be performed on or 

before June 30, 2012. As of June 30, 2012, said reimbursement 

will be Seventeen Thousand Eight Hundred Twenty Dollars 

($17,820).

Wife currently has a 401(K) with Brown Printing. Wife 

agrees to transfer fifty percent (50%) of said 401(K) to Husband. 
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Said 50% interest shall be calculated as of June 30, 2012. 

Husband shall also be entitled to any market increases of said 

interest as of June 30, 2012 and his interest shall be reduced by 

any market decreases that arise thereafter, as well. Husband, 

through his counsel, shall be responsible for drafting any Qualified 

Domestic Relations Order that is necessary to facilitate said 

transfer. Wife shall cooperate in signing said Qualified Domestic 

Relations Order [(“QDRO”)] within ten (10) days of demand.

Id. at 8-9. 

Finally, the PSA provided that it was binding and remained in full force 

and effect until terminated under the terms of the PSA, that it would be 

incorporated in, but not merged with, “any Divorce Decree which may be 

granted by a court of competent jurisdiction,” and that it inured to the benefit 

of their respective heirs and assigns. Id. at 5, 11. 

Following execution of the PSA, Husband and Wife began performing 

their individual obligations under the PSA. Specifically, the parties divided up 

the bank account, Wife paid Husband for his shares of the marital residence 

and the furniture, and Husband transferred the deed to the property into 

Wife’s name. N.T. Trial, 2/8/16, at 67-69, 93, 113, 116. Indeed, the only 

obligation under the PSA that was not performed was Wife’s waiver of 

Husband’s pension benefits.1 Id. at 68-69. 

The parties also moved forward with the divorce proceedings. On 

August 24, 2012, the parties executed a proposed QDRO, as well as affidavits 

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1 PMRS advised Husband that he could not change the benefit option that he 

chose when he retired or choose a different person as his joint annuitant. See

Wife’s Trial Exhibit 5 (deposition of Sean E. Christine) at exhibit 8 (Letter of 

10/11/12). 
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of consent to the entry of a final divorce decree.2 On September 4, 2012, 

notice of intent to request entry of the divorce decree was filed. The executed 

QDRO was entered by the trial court on September 13, 2012. A praecipe to 

transmit the record to the court for entry of the decree was filed on October 

2, 2012. 

On October 31, 2012, the trial court declined to enter the decree, and 

instead ordered that the record be returned to the prothonotary. The court 

noted that the affidavit of service of the divorce complaint upon Wife 

demonstrated improper service. It indicated that Husband was the one who 

had personally served Wife, although he was not competent to effectuate 

service. Order 11/1/12 (citing Pa.R.C.P. 1930.4 (allowing service of original 

process by any competent adult), and Pa.R.C.P. 76 (defining competent adult 

as a person over eighteen years old who is not a party or the employee or 

relative of a party)). Accordingly, the trial court directed the parties to correct 

the deficiency and file a new praecipe. 

On November 2, 2012, the day after the trial court’s order was mailed 

to the parties, Husband committed suicide. Within days of Husband’s death, 

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2 Therein Wife affirmed, subject to the penalties for unsworn falsification to 

authorities in a document that was captioned with the pending divorce action, 

that the marriage was irretrievably broken and that “ninety days have elapsed 

from the date of the filing and service of the complaint.” Wife’s Affidavit of 

Consent, 9/6/12. 
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Husband’s share of Wife’s 401(k) was transferred to Husband pursuant to the 

QDRO.3 

Husband’s estate contacted PMRS concerning Husband’s pension 

benefits, but was informed that there was no “death benefit” available because 

Husband made no personal contributions to the plan; that it viewed Wife as 

the proper recipient of the annuity payments; and that, if Wife waived her 

right to receive the benefits, PMRS would consider her as predeceasing 

Husband such that the payments would cease altogether. See Wife’s Trial 

Exhibit 5 (Deposition of Sean E. Christine) at exhibit 6. On August 1, 2013, 

PMRS issued an official administrative decision that the PSA did not affect its 

obligation to pay the benefits to Wife, and that she was “the rightful recipient 

of [Husband’s] pension benefit[.]” Id. at exhibit 8. Husband’s estate did not 

appeal that decision. Accordingly, Wife continued to receive the annuity 

payments that she began receiving in January 2013. See N.T. Trial, 2/8/16, 

at 75. 

Husband’s estate and Jeffrey Benyo (collectively “Appellees”) jointly

filed a complaint against Wife on August 23, 2013, and an amended complaint 

on January 28, 2015, with much litigation in between.4 The amended 

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3 Wife testified that the transfer of money happened a few days after 

Husband’s death, while Husband’s estate suggested that it occurred 

immediately prior to his death. See N.T. Trial, 2/8/16, at 92. Either way, the 

timing of the transfer does not impact our resolution of the appeal. 

4

In addition to extensive filings in the instant case, the litigation during this 

time included an unsuccessful attempt by Wife to replace Jeffrey Benyo as 

administrator of Husband’s estate in Berks County. 
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complaint stated four claims seeking: (1) that Wife be required to place all 

funds she received from PMRS in escrow pending disposition of the case; (2) 

a declaratory judgment that the PSA is enforceable; (3) a finding that Wife 

breached the PSA in failing to transfer the annuity payments from PMRS to 

Jeffrey Benyo and that damages were due; and (4) an order requiring Wife to 

transfer future payments from PMRS to Jeffrey Benyo, with reimbursement by 

him for any tax liability she incurred as a result. Wife filed an answer, new 

matter, and counterclaim which alleged that the PSA was unenforceable and 

the QDRO was invalid, and sought damages for conversion of her 401(k) funds 

and the damage Husband did to her home and her pets during the course of 

his suicide. 

The case proceeded to a non-jury trial on February 8, 2016. Counsel 

engaged in extensive pre-trial discussion of the issues and legal theories. 

Although the trial court appeared to initially agree with Wife’s positions 

concerning the availability of equitable relief and the validity of the QDRO, it 

ultimately decided to take evidence on all of the claims. The trial court heard 

testimony from Wife, the pension valuation expert presented by Husband’s 

estate, and Sean Christine, PMRS chief of membership services, whose 

deposition testimony and correspondence file were also admitted into 

evidence. 
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The parties submitted written closing arguments following the trial, and 

the court entered its verdict on July 26, 2016.5 The court found for Appellees

and against Wife on both the claims of Appellees and Wife’s counterclaim. 

Specifically, the court (1) declared that the PSA was valid and binding, that 

Jeffrey Benyo was an intended third-party beneficiary of the PSA, and that the 

PSA required Wife to remit the payments she received from PMRS to 

Husband’s estate or Jeffrey Benyo; (2) found that Wife owes Husband’s estate 

or Jeffrey Benyo $503,656.51 for breaching the PSA; (3) ordered Wife to 

transfer any future payments from PMRS to Jeffrey Benyo within ten days of 

their receipt, with Jeffrey to reimburse her for any taxes paid by Wife, and to 

refrain from terminating the benefits; and (4) concluded that Wife failed to 

prove that she was entitled to recover damages related to Husband’s actions 

or the 401(k) funds transferred pursuant to the QDRO. The court further 

provided that, as long as Wife paid over the $79,414.08 in PMRS funds she 

had already received within sixty days and complied with the order concerning 

forwarding future payments to Jeffrey Benyo, Appellees were prohibited from 

registering a judgment on the verdict or executing upon one. 

Wife filed a timely post-trial motion which the trial court denied on 

December 21, 2016. Wife filed a timely notice of appeal, and the trial court 

ordered her to file a statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b). Wife then filed for bankruptcy, and the case was stayed. 

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5 The verdict is dated July 21, 2016, but the docket reflects that it was not 

served on the parties until July 26, 2016. 
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Wife died on October 15, 2017, and her trial/appellate counsel 

subsequently was appointed as personal representative of her estate. The 

bankruptcy stay was lifted, and the trial court issued a new Rule 1925(b) 

order. Wife’s estate filed a timely Rule 1925(b) statement and a notice of 

death and substitution of successor. This Court, on March 26, 2018, noted 

that Wife had failed to reduce the verdict to judgment, and ordered that a 

praecipe to enter judgment and an updated docket be filed within ten days 

upon pain of having the appeal dismissed.6 Thirteen days after Wife’s estate 

failed to comply, the trial court entered an order in lieu of an opinion indicating 

that the appeal should be dismissed. Judgment was entered on the verdict 

on April 18, 2018, and an updated docket was filed in this court nine days 

later. 

Wife’s estate failed to file a timely brief, even after this Court granted 

an extension nunc pro tunc. Appellees filed a motion to quash the appeal 

based upon the absence of a brief. Wife’s estate filed its brief the next day. 

This Court denied the motion to quash, providing that Appellees could raise 

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6 As we discuss more fully infra, the circumstances of this case were such that 

the verdict was not actually ripe for reduction to judgment when this Court 

directed that judgment be entered, as the verdict expressly provided that it 

was not subject to recording or enforcement unless and until the trial court 

determined that Wife failed to comply with the equitable relief awarded to 

Appellees. However, there was no cause to quash the appeal even in the 

absence of a judgment, as the verdict was immediately appealable pursuant 

to Pa.R.A.P. 311(a)(4)(ii) (providing interlocutory order mandating conduct 

not previously mandated is immediately appealable when effective before 

entry of a final order) because it required Wife to pay Appellees past and 

future sums before a judgment would be entered against her. 
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the issue with the merits panel. Appellees then filed their one-page brief late, 

abandoning their quashal argument and merely requesting that this Court 

adopt the findings and conclusions of the trial court. Appellees’ brief at 

unnumbered 1. Thus, the matter is finally ripe for our disposition.

Wife’s estate presents the following questions for our review, which we 

have re-ordered for ease of disposition:

1) Did the lower court err by failing to dismiss, upon motion of 

[Wife], the equity counts in [Appellees’] amended complaint 

where the pleading failed to make any assertion of an 

inadequate remedy at law, failed to contain allegations of 

fact sufficient to establish an inadequate remedy at law, and 

in contradiction pleaded damages in excess of $500,000?

2) Did the lower court err by ruling that the QDRO was valid 

without in personam jurisdiction because it asserted that 

there was a valid divorce pending when the order was 

signed, where the divorce complaint was filed May 21, 2012, 

where the court found that [Wife] had not been served with 

process in the case within 30 days causing the complaint to 

lapse months before the order was signed without notice to 

[Wife]?

3) Did the lower court err by holding that [Wife] failed to carry 

her burden of proof that her 401(k) funds were converted 

by counterclaim defendants where the 9/13/2012 “QDRO” 

was signed without jurisdiction over [Wife], where the lack 

of service caused the divorce action to lapse, making the 

“QDRO” a nullity and void ab initio, where the court ruled on 

the record at the outset that “from my position any order 

issued under the divorce action is invalid” and, when 

challenged, the court emphasized “No. No. No. It’s the 

ruling. It’s not the position; it’s the ruling”?

4) Did the court error [sic] by interpreting the focal paragraph 

addressing [Husband’s] retirement benefits without 

considering the PMRL which provides definitions of terms 

used in the paragraph, such as “death benefits,” “pension 
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benefits,” and “survivor annuitant,” and by ignoring the 

clearly applicable paragraphs within the agreement (e.g., 

para. 10 & 11) which provide that illegal provisions in the 

agreement must be stricken (para. 11), rather than 

motivating the court to violate another provision of the 

agreement by supplying, amending, modifying and revising 

the terms of the agreement which specifically confronts the 

imperative prohibition contained in paragraph 10 that 

“under no circumstance” shall the court have the power or 

authority to engage in such activity?

5) Did the court commit error by “re-writing” the terms of the 

[PSA] in its attempt to do indirectly that which the PSA failed 

to accomplish legally and in trying to circumvent the 

unassignability provision of 53 PS 881.115?

6) Did the lower court commit error and violate the antialienation provisions of 53 PS 881.115 and 53 PS 764 by 

ordering that [Wife] shall transfer any future payments (net 

proceeds after all taxes are paid) she receives as a 

beneficiary of [Husband’s] police pension directly to Jeffrey

Benyo. . . ?

Wife’s brief7,8 at 5-6 (unnecessary capitalization omitted).

We begin with a review of the applicable law. “On appeal from an order 

interpreting a marital settlement agreement, we must determine whether the 

trial court committed an error of law or an abuse of discretion. We do not 

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7 Although it is Wife’s estate that is pursuing this appeal, we shall refer to the 

appellant as “Wife” and cite to “Wife’s brief” for the sake of simplicity. 

8 We note with displeasure that there is little or no correlation between the six 

questions stated and the six sections of argument offered in Wife’s unartful 

and disjointed brief. For example, the argument for both questions regarding 

the QDRO (questions 2 and 4 in Wife’s brief) are addressed together under 

subheading 5 in the argument section of the brief. Wife has made deciphering 

and analyzing its claims far more difficult than was necessary. The 

disorganized and less-than-forthright briefing by Wife, combined with 

Appellees’ failure to submit any brief that addressed the issues, caused 

substantial delay in our resolution of this appeal. 
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usurp the trial court’s fact-finding function.” Tuthill v. Tuthill, 763 A.2d 417, 

419 (Pa.Super. 2000) (cleaned up). 

Property settlement agreements are governed by the law of contracts 

and are enforceable at law or equity. Stamerro v. Stamerro, 889 A.2d 1251, 

1257, 1258 (Pa.Super. 2005). The goal of contract interpretation is to 

ascertain the intent of the parties. In re Estate of Hoffman, 54 A.3d 903, 

907 (Pa.Super. 2012). “When construing agreements involving clear and 

unambiguous terms, a trial court need only examine the writing itself to give 

effect to the parties’ understanding.” Id. (cleaned up). 

Because contract interpretation is a question of law, this Court is 

not bound by the trial court’s interpretation. Our standard of 

review over questions of law is de novo and to the extent 

necessary, the scope of our review is plenary as the appellate 

court may review the entire record in making its decision. This 

Court must construe the contract only as written and may not 

modify the plain meaning under the guise of interpretation. When 

a contract is free from ambiguity, the court must interpret the 

contract as written.

Mazurek v. Russell, 96 A.3d 372, 378 (Pa.Super. 2014) (cleaned up). 

As our Supreme Court has stated, “in determining intent, we are mindful 

to examine the entire contract, taking into consideration the surrounding 

circumstances, the situation of the parties when the contract was made and 

the objects they apparently had in view and the nature of the subject matter.” 

Commonwealth by Shapiro v. UPMC, 188 A.3d 1122, 1131 (Pa. 2018). 

However, the unambiguous provisions of written contracts cannot be 
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contradicted or varied by oral testimony. Halpin v. LaSalle Univ., 639 A.2d 

37, 39 (Pa.Super. 1994). 

With these principles in mind, we turn to the questions before us. Wife

first contends that the trial court erred in allowing Appellees to proceed with 

their equity count because there was an adequate remedy at law. Wife’s brief 

at 40. With no citation to authority to support its position, Wife maintains that 

the complaint “did not even remotely support an action in equity.” Id. at 41. 

Wife further argues that she was subject to trial by ambush when the court 

indicated immediately before trial began that the equity claim was dismissed, 

but then changed its mind after a recess. Id. 

The issue warrants no relief from this Court. As noted above, property 

settlement agreements are enforceable at law or equity. Stamerro, supra

at 1258. The action at law for damages may include past-due payments plus 

interest, while equitable relief may include an order directing a party to comply 

with future obligations under the contract. Id. at 1257. Count one of 

Appellees’ amended complaint requested that the trial court order Wife to 

place all funds she received from PMRS in escrow during the pendency of the 

litigation. Under the above-cited law, such was a valid request sounding in 

equity. 

Regarding the timing of the trial court’s decision to reinstate count one 

after it had dismissed it, Wife waived the issue because she failed to raise a 

contemporaneous objection. See N.T. Trial, 2/8/16, at 65. In any event, Wife

has not even attempted to show that she suffered prejudice as a result of the 
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trial court’s ruling. She offers no suggestion how Wife’s trial strategy changed 

from the time of the dismissal of the count immediately prior to the lunch 

recess to its reinstatement immediately after lunch such that she was 

“ambushed” at trial. Moreover, the trial court ultimately determined that the 

dismissed-then-reinstated count was moot and awarded Appellees no relief 

upon it. As such, the claim is devoid of merit.

With her next two issues, Wife challenges the trial court’s rejection of 

her counterclaim challenging the validity of the QDRO by which half of her 

401(k) funds were transferred to Husband. Wife argues that the trial court 

lacked jurisdiction to enter the order because she had not received proper 

service of the divorce complaint, rendering it void ab initio. Wife’s brief at 5, 

48-53. She maintains that she had no knowledge that the divorce action was 

pending at the time she executed the PSA or the QDRO, and did not believe 

that either would take effect until after a divorce decree was entered. Id. at 

45, 50. Wife further contends that the trial court initially properly ruled that 

the QDRO was invalid, and that she relied upon that ruling when she testified 

at trial. Id. at 45. Therefore, Wife asserts that she is entitled to an award of 

$133,750 plus interest against Husband’s estate. Id. at 51. We disagree.

First, Wife misrepresents the finality of the pretrial ruling concerning the 

QDRO’s validity. Wife correctly reports that the trial court initially stated its 

ruling was that “any order issued under the divorce action is invalid.” Wife’s 

brief at 16, 42; N.T. Trial, 2/8/16, at 19. However, Wife neglects to mention 

that the court continued to entertain argument on the issue, vocalized its 
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consideration of whether a QDRO could be entered “outside the context of a 

divorce,” heard argument from Appellees’ counsel that a QDRO can be entered 

to enforce a post-nuptial agreement without there being a divorce, and 

reframed the issue as being whether the PSA was valid and enforceable.9 Id. 

at 19-30. Thus, it should have come as no surprise to Wife that the issue was 

revisited by the parties in the middle of trial, and the court explored the 

subject with an expert witness, who confirmed that a retirement plan “will 

accept a QDRO from whatever source as long as it’s signed by a court.” Id. 

at 121, 134. 

Second, the court had jurisdiction on September 13, 2012 to enter the 

QDRO that Husband and Wife had executed on August 24, 2012. The divorce 

action was properly commenced by the filing of Husband’s complaint. See 

Pa.R.C.P. 1920.3. While the record does not reflect compliance with the rules 

as to service of that complaint on Wife, the defect in service did not necessarily 

deprive the court of jurisdiction. 

The primary purpose of service is to give adequate notice of the 

pendency of an action. The idea of service of original process is 

to give reasonable assurance that a defendant will have actual 

knowledge of an action and of his or her duty to defend; if the 

manner of service is improper, then there is no such assurance.

Defects in the manner of service of original process are not 

fundamental or vital, however, and thus may be waived.

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9 After reviewing the record, we fully understand the trial court’s statement 

during the course of counsels’ pre-trial presentation of the issues involved: 

“It’s all starting to come back to me now. I think I blocked it out because I 

was suffering from some PTSD from listening to this the first time.” N.T. Trial, 

2/8/16, at 29-30. 
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2 Goodrich Amram 2d § 402:1 (footnotes omitted, emphasis added). “A 

defendant manifests an intent to submit to the court’s jurisdiction when the 

defendant takes some action (beyond merely entering a written appearance) 

going to the merits of the case, which evidences an intent to forego objection 

to the defective service.” Fleehr v. Mummert, 857 A.2d 683, 685 (Pa.Super. 

2004) (internal quotation marks omitted).

At no time while the divorce action was pending did Wife object to 

service. On the contrary, Wife’s execution of QDRO, captioned at the docket 

number of the pending divorce action, reflected both Wife’s knowledge of the 

existence of the divorce proceeding and her intent to submit to the court’s 

jurisdiction. Wife further evidenced her intent to submit to the court’s 

jurisdiction by executing the affidavit of consent for that court to issue a 

divorce decree. As such, the defect in the manner of service was waived by 

Wife, and the court had personal jurisdiction.

Third, the trial court’s rejection of Wife’s claim that the parties intended 

the PSA to take effect only when the divorce was final is supported by the 

record. As detailed above, the plain language of the agreement states that it 

was to be incorporated into “any divorce decree that may be entered” and to 

“continue in full force and effect after such time as a final decree in divorce 

may be entered with respect to the parties.”10 Id. at 2 (emphasis added). 

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10 Wife testified that she did not believe that the agreement would take effect 

until the divorce was finalized because the PSA stated that it “‘shall be in full 
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See also id. at 11 (“This Agreement shall be incorporated in, but not merged 

with or be impaired by any Divorce Decree which may be granted by a court 

of competent jurisdiction. The Agreement shall survive such Decree in full 

force and effect . . . .”). A thing cannot “survive” or “continue” to exist after

an event unless it also existed before that event. The use of “any” divorce 

decree that “may” be entered supports this notion that the PSA was a certainty 

although the entry of divorce decree was indefinite. As this language is clear 

and unambiguous, Wife’s testimony to the contrary cannot be used to 

establish a different intent. See Halpin, supra at 39. Further, Wife’s selfserving testimony is contradicted by the conduct of the parties.11

Fourth, entry of the QDRO was within the subject-matter jurisdiction of 

the court, and was not somehow invalidated by the fact that no divorce decree 

ultimately issued. A QDRO “is a domestic relations order that creates, 

recognizes, or assigns to an alternate payee the right to receive all or a portion 

of the benefits payable to a participant under a pension plan subject to the 

Employee Retirement Income Security Act (ERISA).” Wilder, Pa. Family Law 

Prac. and Proc. (5th ed.), at § 23-4 (footnote omitted). 

____________________________________________

force after such time as a final decree in divorce may be entered.’” N.T. Trial, 

2/8/16, at 91 (purporting to quote PSA, 6/18/12, at 2). However, the 

agreement actually states that it shall continue to be in force after the parties 

are divorced. Counsel failed to note the inaccuracy of Wife’s quote when 

repeating it in the brief of appellant. See Wife’s brief at 10. 

11 As noted earlier, although no divorce decree ever issued, Wife and Husband 

both performed all of their property-distributing obligations under the PSA but 

for Wife’s waiver of Husband’s pension benefits between their execution of the 

PSA and Husband’s death. N.T. Trial, 2/8/16, at 67-69, 93, 113, 116. 
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Under 23 Pa.C.S. § 3105, “almost all matters involving family law issues 

should be heard under the Divorce Code,” regardless of whether there is an 

agreement that has been merged or incorporated into a divorce decree. 

Annechino v. Joire, 946 A.2d 121, 122 (Pa.Super. 2008). This statute, along 

with 23 Pa.C.S. § 3323(f), allows courts to enforce agreements even if they 

were never “raised in the divorce pleadings” and grants the court “not only 

broad enforcement powers, but full equity and jurisdiction to issue orders 

necessary to protect the interests of the parties and effectuate economic 

justice and insure the fair and just settlement of the parties’ property rights.” 

Id. at 124 (internal quotation marks omitted). 

Hence, under Pennsylvania domestic relations law, a court with 

personal jurisdiction over the parties has subject matter jurisdiction to enter 

a QDRO pursuant to a property settlement agreement, even if not sought 

during the litigation of a divorce action. See Wilder, supra at § 23-4 “(A 

divorce action need not be involved so long as the QDRO is entered pursuant 

to a state ‘domestic relations law.’ . . . A QDRO may be used to enforce a 

property settlement agreement.”) (footnote omitted). 

For all of these reasons, Wife’s 401(k) money was properly distributed 

through a QDRO that was executed pursuant to a valid PSA by Husband and 

Wife and issued by a court with both personal and subject-matter jurisdiction. 

Therefore, the trial court correctly determined that Wife failed to establish her 

entitlement to a verdict on her counterclaim. No relief from this Court is due 

with respect to Wife’s challenges to the QDRO.
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The remaining three issues raised by Wife concern the trial court’s 

interpretation of the PSA and enforcement of that interpretation. We begin 

by reviewing the relevant language of the PSA:

Wife will agree to waive all right, title and interest in 

Husband’s Police Pension. Wife will sign any necessary 

paperwork upon demand to facilitate said waiver. In addition, 

Wife agrees to waive any death benefit from Husband’s Pension. 

She will sign any necessary paperwork to facilitate said waiver. At 

the time of the signing of this Agreement, Wife is to receive a one 

hundred percent (100%) death benefit. If the Plan Administrator 

of said Pension will not permit a waiver of said death benefit to 

Wife or a change of beneficiary based on Wife’s life 

expectancy, Wife will agree to sign any necessary paperwork, 

including a statement in writing that she waives the benefits and 

instructs her estate to make payment of any benefits it may 

receive to a beneficiary designated by Husband. As of the date of 

the signing of this Agreement, the designated beneficiary of the 

death benefit will be Jeffrey Benyo, who currently resides at 186 

Upper Valley Road, Christiana, Pennsylvania. Unless Wife receives 

a written statement from Husband that the designated beneficiary 

has changed, any proceeds that she or her estate receives 

shall be paid to Jeffrey Benyo. It is understood that, if Wife 

fails to fulfill the obligation set forth in the Agreement, Jeffrey 

Benyo and/or the estate of Michael Benyo may pursue all claims 

he or the estate may have against Wife and may seek appropriate 

sanctions including but not limited to counsel fees.

PSA, 6/18/12, at 8 (emphasis added).

Wife contends that the payments she had been receiving from PMRS 

were neither part of Husband’s pension nor a death benefit, as those terms 

are defined under the Municipal Police Pension Law, but rather joint annuitant 

benefits to which she was entitled in her own right. Wife’s brief at 6. Wife

further asserts that even if the PSA does provide for the waiver and/or 

assignment of the benefits she received from PMRS, applicable statutes 
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prohibit the assignment or transfer of municipal police pensions. Id. at 5 

(citing 53 P.S. §§ 764 and 881.115), 27-31. Moreover, argues Wife, the trial 

court could not circumvent those statutes by ordering the transfer of the 

payments from PMRS after Wife received them. Id. at 6, 33-34.

None of Wife’s arguments warrants our disturbing the trial court’s 

verdict. Construing the PSA as a whole, giving meaning to all language, it is 

plain that the parties’ clear and unambiguous intent was for Wife to give up

all of her rights to receive money from PMRS in any form. Husband selected 

for his retirement benefit an annuity that was calculated at the time of 

Husband’s retirement and based upon the combined life expectancy of himself 

and Wife. See N.T. Trial, 2/8/16, at 162, 184. There was no separate annuity 

for Wife; rather, Husband’s pension was in the form of a single annuity which 

would continue to pay as long as one of the joint annuitants was alive. See 

id. at 162 (trial testimony of Sean Christine) (“So long as either one of them 

is alive, that annuity will continue to pay. One does not stop when another 

one begins, it’s not two separate. It’s one, based upon the entire length of 

the life expectancy [of both annuitants].”); see also id. at 147-48 (discussing 

that pension payments to Husband during his life and survivor annuity 

payments to Wife thereafter were “the same benefit”). As such, Wife’s right 

to receive annuity payments if Husband predeceased her was an “interest in 

Husband’s Police Pension” that she expressly agreed to forfeit in the first 

sentence of the PSA’s provisions regarding retirement benefits. Wife’s 
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construction distinguishing “survivor annuitant” benefits from “pension 

benefits” and “death benefits” does not change the fact that all of those 

benefits flow from Husband’s pension. 

Given the nature of the survivor annuity, Husband’s selection of a 

survivor annuitant was irrevocable once he began to receive his pension 

benefits prior to the parties’ separation, and he could not change the survivor 

annuitant from Wife to another person. See id. at 160-61. This possibility 

was contemplated by the parties post-separation and expressly addressed in 

the PSA, which states “[i]f the Plan Administrator of said Pension will not 

permit a waiver of said death benefit to Wife or a change of beneficiary 

based on Wife’s life expectancy, Wife will agree to sign any necessary 

paperwork, including a statement in writing that she waives the benefits and 

instructs her estate to make payment of any benefits it may receive to a 

beneficiary designated by Husband.” PSA, 6/18/12, at 8 (emphasis added). 

The joint annuity was the only aspect of Husband’s retirement benefits that 

was in any way tied to Wife’s life expectancy. Hence, Wife’s contention that 

the survivor annuity was not included in Wife’s waiver of benefits utterly 

ignores the above provision of the PSA, as well as her agreement that “any 

proceeds that she or her estate receives shall be paid to Jeffrey Benyo.” Id. 

Accordingly, the trial court properly ruled that, under the terms of the PSA,

Jeffrey Benyo, not Wife, was entitled to the payments from PMRS made after 

Husband’s death. 
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Wife maintains, however, that Pennsylvania law makes assignment of 

the pension benefits from Wife to another person illegal. Wife relies upon two 

statutes in support of her contention. First, the Municipal Police Pension Law 

provides as follows: “The pension payments, herein provided for, shall not be 

subject to attachment, execution, levy, garnishment or other legal process, 

and shall be payable only to the member or his designated beneficiary and 

shall not be subject to assignment or transfer.” 53 P.S. § 776 (footnote 

omitted). Similarly, the Pennsylvania Municipal Retirement Law states that 

“[t]he retirement allowance and the contributions of members to the fund, all 

contributions returned to contributors under the provisions of this act and the 

moneys in the fund created by this act, shall be exempt from any State or 

municipal tax and shall be unassignable except to a beneficiary.” 53 P.S. 

§ 881.115(a). 

Wife argues that these statutes prohibit the assignment of Wife’s 

interest in the survivor annuity to a third party, and prohibit the use of any 

legal process to require their transfer to a third party. Wife’s brief at 27-32. 

Wife further asserts that, because the provision of the PSA assigning her rights 

in the pension benefits was illegal under the above statutes, the court could 

not circumvent the law by ordering Wife to transfer the funds to Jeffrey Benyo 

after they were paid to her by PMRS. Id. at 33-34 (quoting Employers’ Liab. 

Assur. Corp. v. Fischer & Porter Co., 75 A.2d 8, 10 (Pa.Super. 1950)) (“It 
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is settled beyond question that the law will not aid one to recover on a contract 

expressly prohibited by law.”). 

Wife’s argument is contrary to relevant precedent. Shortly after the 

1950 case quoted by Wife was decided, this Court held that the legislature 

exempted police pensions from attachment “for the protection of the 

governmental agency,” not in aid of delinquent husbands[.]” 

Commonwealth v. Mooney, 92 A.2d 258, 260 (Pa.Super. 1952). Thus, 

although a court could not require the police pension fund to distribute funds 

to someone other than the beneficiary, the funds were “attachable in the 

hands of the delinquent husband, when received by him and proceedings may 

be directed against him personally for failure to pay support though his only 

resources are derived from such payments.”

12

 Id. 

____________________________________________

12 The Mooney decision was later disapproved of by our Supreme Court, which 

held that police pensions were attachable in the hands of the agency for the 

purposes of enforcing support obligations. See Young v. Young, 488 A.2d 

264, 268 (Pa. 1985). This Court further held that a government pension was 

subject to attachment to enforce a judgment entered upon a spouse’s breach 

of a property settlement agreement. Beltrami v. Rossi, 726 A.2d 401 

(Pa.Super. 1999). In 2010, the legislature codified the rule that rights under 

the Pennsylvania Municipal Retirement Law are indeed subject to attachment 

under an approved domestic relations order, which includes approval of a PSA 

entered into after July 9, 2010, relating to the marital property rights of a 

spouse or former spouse. See Subsection (b)(1) of 53 P.S. § 881.115(b)(1). 

See also 53 P.S. 881.102 (defining terms). While these provisions contradict 

Wife’s claim that municipal pension funds are absolutely untouchable by any 

legal process while in the hands of the agency, they are not applicable here, 

as the trial court did not order PMRS to issue payments to a third party. 
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The trial court in this case did not attach Husband’s pension by ordering 

PMRS to make the monthly payments to Jeffrey Benyo instead of to Wife. 

Rather, as in Mooney, it required Wife to transfer the amount of the payments 

she received to Jeffrey Benyo, as she promised to do when she executed the 

PSA. Sean Christine, PMRS chief of membership services, testified at trial that 

PMRS does not care what happens to the money after it paid it to Wife—she 

is free to transfer it without restriction. See N.T. Trial, 2/8/16, at 178 (“[I]t’s 

similar to having your employer pay you. The employer pays you, and what 

you do with the money afterwards is your business.”). We see no illegality in 

the trial court’s enforcement of Wife’s obligations under the PSA. 

Indeed, this Court recently approved a similar resolution when faced 

with comparable facts in In re Estate of Easterday, 171 A.3d 911 (Pa.Super. 

2017), appeal granted in part, 184 A.3d 542 (Pa. 2018). In that case, the 

spouses also entered into an agreement to waive their rights to each other’s 

pensions, but the husband died before his beneficiary was changed and before 

grounds for divorce were established and a decree entered. Under ERISA, the 

payments could not be made to anyone other than the beneficiary designated 

in the retirement plan documents. To enforce the parties’ agreement, 

therefore, the trial court ordered the wife to pay to decedent’s estate all of the 

pension benefits she received from the plan. This Court affirmed, holding that, 

while ERISA removed the court’s ability to require the retirement plan 

administrators to directly pay funds to a third party, it could enforce the 
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parties’ property settlement agreement by ordering the wife to turn over to 

the husband’s estate all proceeds she had received, as well as any future 

proceeds she was entitled to receive. Id. at 920. 

Thus, pursuant to the law cited above, the trial court in the case sub 

judice did not circumvent any illegality by ordering Wife to comply with the 

PSA by remitting payments she received from PMRS to Jeffrey Benyo after she 

received them. 

For all of the foregoing reasons, we affirm in full the trial court’s verdict 

in favor of Appellees and against Wife. However, it is necessary for us to 

vacate the judgment that was entered upon that verdict during the pendency 

of this appeal after this Court directed its entry. 

The trial court’s verdict set forth alternative and contingent equitable 

and monetary awards for Appellees. Specifically, it provided that if Wife paid 

Appellees the amount she had received from PMRS prior to the verdict within

sixty days, and faithfully complied with the trial court’s order to transfer future 

benefit payments, then the award of $503,656.51 (representing the total 

value of payments Wife would receive if she lived to her statistical life 

expectancy) would not be subject to recording or enforcement by Appellees. 

The verdict also placed upon Jeffrey Benyo the duty to reimburse Wife for any 

tax liability she realized by virtue of her receipt of the PMRS payments. 

Wife’s death after this appeal was filed mooted the primary, equitable 

form of relief awarded by the trial court. Also, the record before us contains 
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no information about the parties’ compliance with the duties imposed by the 

trial court, how those duties were impacted by Wife’s filing for bankruptcy, or

how much money Wife received from PMRS before her death terminated the 

annuity benefits. Even without those complicating factors, it is clear to us 

from the conditional nature of the relief awarded in the verdict that additional 

judicial fact-finding must occur prior to entry of a money judgment against 

Wife. 

Accordingly, although Wife has presented this Court with no basis to 

disturb the trial court’s verdict, we vacate the April 18, 2018 judgment entered 

on that verdict and remand for the trial court to calculate the full and final 

monetary relief due to Appellees and to enter judgment against Wife’s estate

for that amount. 

Judgment vacated. Verdict affirmed. Case remanded with instructions. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/13/19