Background
Roseli Alves Maciel Fonseca sued the closed complementary-pension entity PREVI and its sponsor, Banco do Brasil, seeking to incorporate overtime pay recognized in labor proceedings into her contribution salary and retirement benefit. She also sought revision of a temporary special benefit known as the BET, full replenishment of the plan’s actuarial reserve by Banco do Brasil, and, alternatively, damages.
The trial court allowed the principal-benefit revision, subject to prior and complete replenishment of the actuarial reserve, and held that Banco do Brasil should bear that cost. The Federal District and Territories Court of Justice later removed Banco do Brasil from the case for lack of standing, left PREVI’s revision obligation in place, required Fonseca to provide the necessary reserve funding, and denied revision of the BET. Both Fonseca and PREVI sought review in the Superior Court of Justice.
The Court’s Holding
The Third Panel unanimously declined to consider PREVI’s interlocutory appeal because PREVI had not specifically challenged every ground supporting the decision that barred its special appeal. In particular, overcoming the obstacle imposed by STJ Precedent No. 83 required citation to contemporaneous or later decisions showing that the STJ’s case law differed from the approach below, which PREVI had not supplied.
The court partially considered and granted Fonseca’s special appeal. It held that Banco do Brasil was a proper defendant because it was asked to provide the employer’s share of the actuarial reserve needed for the pension revision resulting from overtime that the bank had failed to pay and on which it consequently had underpaid pension contributions. Under Article 6 of Complementary Law No. 108/2001, however, funding is shared: Banco do Brasil must pay the sponsor’s share, while Fonseca remains responsible for the participant’s share. The amounts must be determined through an actuarial study during the judgment-enforcement phase, with deductions for sums paid pursuant to the labor judgment.
The court did not entertain Fonseca’s generic claim that the lower court had failed to address issues, and it left the denial of a BET recalculation undisturbed because reviewing that issue would require reconsidering evidence and contractual provisions, which STJ Precedents Nos. 5 and 7 prohibit in a special appeal. The court also increased the prevailing-party attorney-fee award from 11% to 15% of the judgment, payable equally by PREVI and Banco do Brasil, subject to any applicable legal-aid protection.
Key Takeaways
- A closed-plan sponsor may be joined when the claim seeks its contribution to the actuarial reserve required by the sponsor’s own civil or employment-related wrongdoing.
- Revising a complementary-pension benefit requires prior actuarial funding by both the sponsor and the participant, each paying the applicable share.
- An appeal from an order refusing a special appeal must specifically confront every ground for inadmissibility; contractual and evidentiary questions ordinarily cannot be revisited by the STJ.
Why It Matters
The decision distinguishes disputes confined to the pension plan—where the sponsor ordinarily is not a proper defendant—from claims that the sponsor’s own failure to pay compensation caused underfunding. In the latter category, the sponsor can be required to participate and supply its portion of the reserve necessary for a benefit revision.
At the same time, the ruling protects the plan’s actuarial balance by refusing to place the entire replenishment obligation on the employer. Participants seeking benefit increases based on belatedly recognized compensation remain responsible for their own contribution share.