alternate payee’s rights are derivative to the member’s and subject to the same contingencies affecting member’s entitlement to benefits
How later courts described this case
- alternate payee’s rights are derivative to the member’s and subject to the same contingencies affecting member’s entitlement to benefits
Written by the judges who cited it.
The opinion
CONCURRING OPINION BY
Judge SIMPSON.
I concur in the thoughtful result reached by the majority. I briefly note that the result here is also consistent with common law principles of assignment. Thus, an assignee’s right against the obligor is subject to all of the limitations of the assign- or’s right, to all defenses thereto, and to all set-offs and counterclaims which would have been available against the assignor had there been no assignment, provided that these defenses and set-offs are based on facts existing at the time of assignment. Peoples Pittsburgh Trust Co. v. Commonwealth, 359 Pa. 622 , 60 A.2d 53 (1948); Smith v. Cumberland Group, Ltd., 455 Pa.Super. 276 , 687 A.2d 1167 (1997); Restatement (Second) of Contracts § 336 (1981). In other words, the rights of the assignee here, the former wife, are subject to set-off for thefts from the employer committed before the assignment/approved domestic relations order.
It is noteworthy that the result here is the same under the statute and under common law principles. Analysis of the common law is helpful where, as here, the statute lacks express controlling provisions. Borough of Pitcairn v. Westwood, 848 A.2d 158 (Pa.Cmwlth.2004) (statutes *362 are never presumed to make any innovation in the rules and principles -of the common law beyond what is expressly declared in their provisions).