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SHLOMCHIK v. RETIREMENT PLAN OF THE AMALGAMATED IN

October 31, 1980

Samuel SHLOMCHIK
v.
RETIREMENT PLAN OF the AMALGAMATED INSURANCE FUND and Ronald Minikes



The opinion of the court was delivered by: WEINER

MEMORANDUM OPINION AND ORDER

This is an action for accrued pension benefits allegedly due plaintiff under the Retirement Plan of the Amalgamated Insurance Fund (Fund), brought pursuant to Section 502(a)(1)(A) and (B) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a)(1)(A) and (B). Plaintiff also seeks, pursuant to Section 502(c) of ERISA, 29 U.S.C. § 1132(c), award of statutory penalty of $ 100.00 per day for each day that defendants allegedly failed to provide plaintiff with a copy of the Plan, in accordance with Section 104(b)(4) of ERISA, 29 U.S.C. § 1024(b)(4). Plaintiff further asserts a violation of defendant's fiduciary obligation under § 404(a)(1) of ERISA, 29 U.S.C. § 1104(a)(1).

 Depositions, stipulations, exhibits and other evidence were submitted to this court for our determination. Based upon the evidence presented, and for the reasons set forth below, judgment will be entered in favor of the defendants and against the plaintiff.

 On September 13, 1978, plaintiff's attorney wrote to plaintiff's local union, Local No. 362, Philadelphia Joint Board, Amalgamated Clothing Workers of America, stating that he represented a union member who was thinking of retiring, and requesting a copy of the Plan. (P-1). Defendant Ronald Minikes (Minikes), as the designee of the Fund's administrator, responded to the attorney by letter of September 19, 1978, stating that the letter of September 13th had been referred to him, and requesting the attorney's client's name, social security number, and last employer. (P-2). By letter of October 17, 1978, plaintiff's attorney provided this information to defendant Minikes, and again requested the information sought in the September 13th letter. (P-3).

 Plaintiff's attorney wrote to Minikes again on December 17, 1978 indicating that he had not yet received the information requested, and asking again for that information. (P-4). Defendant Minikes' reply letter of December 26, 1978, stated that Minikes had no record of the October 17th letter. (P-5). The letter of December 26th also requested additional information in the event that plaintiff was "interested in a statement as to his accrued benefit." Plaintiff's attorney sent a copy of the October 17th letter to Minikes on January 2, 1979.

 Plaintiff filed an application for retirement benefits on January 8, 1979. (D-2). On April 27, 1979, plaintiff was notified that his application had been rejected for failure to meet the eligibility requirements of the Fund. (P-8). A copy of the Plan was sent to plaintiff at that time. Plaintiff's appeal to the Executive Committee of the Trustees of the Fund was denied on December 11, 1979. (P-13).

 Defendant Minikes challenges this court's exercise of in personam jurisdiction over him. We reject this contention because section 502(e)(2), 29 U.S.C. § 1132(e)(2), of the statute under which this action is brought, ERISA, provides for nationwide service of process. 29 U.S.C. § 1132(e)(2) provides:

 
"Where an action under this subchapter is brought in a district court of the United States, it may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found, and process may be served in any other district where a defendant resides or may be found."

 Defendant Minikes has been served in a district where found, there has been no objection made to the manner of service of process, and there are no restrictions imposed by the Constitution on the exercise of jurisdiction by the United States over its residents. In personam jurisdiction over defendant Minikes is thus proper. Leroy v. Great Western United Corp., 443 U.S. 173, 191-92, 99 S. Ct. 2710, 2720-21, 61 L. Ed. 2d 464 (1979) (dissenting opinion); Fitzsimmons v. Barton, 589 F.2d 330, 332-34, (7th Cir. 1979); see, Great Western Corp. v. Kidwell, 577 F.2d 1256, 1270 (5th Cir. 1978), reversed on other grounds, sub nom, Leroy v. Great Western United Corp., 443 U.S. 173, 99 S. Ct. 2710, 61 L. Ed. 2d 464 (1979); Black v. Acme Markets, Inc., 564 F.2d 681, 684 (5th Cir. 1977). Defendant Minikes' reliance on an analysis of the Pennsylvania long-arm statute and due process requirements is inapposite. See, Illinois v. City of Milwaukee, 599 F.2d 151, 156 n.3 (7th Cir. 1979), cert. granted on other grounds, 445 U.S. 926, 63 L. Ed. 2d 758, 100 S. Ct. 1310 (1980). (minimum contacts issue raised only where Congress has not provided for nationwide service of process). See also Judge Becker's scholarly review of due process and the limitations on the Congressional grant of nationwide service of process in Oxford First Corp. v. PNC Liquidating Corp., 372 F. Supp. 191 (E.D.Pa.1974).

 We turn now to plaintiff's claim for pension benefits, brought pursuant to 29 U.S.C. § 1132(a), which provides in relevant part that:

 
"(a) A civil action may be brought-
 
(1) by a participant or beneficiary-
 
(A) ...
 
(B) to recover benefits due to him under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;"

 Eligibility for retirement benefits under the Plan is governed by section 4.1 of the Plan, which provides:

 
"4.1 Normal Retirement
 
A Participant shall be eligible for a normal retirement pension if his employment is terminated on or after his Normal Retirement Date. Provided that the Participant:
 
(a) Has filed an application for ...

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