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February 2, 1981

Bjorn HOLMSTROM, a individual Plaintiff,
PPG INDUSTRIES, INC., a Pennsylvania Corporation and the PPG Industries, Inc., Non-Contributory Retirement Plan For Salaried Employees, Clyde McLane, Jr., Agent & Plan Administrator, Defendants

The opinion of the court was delivered by: DUMBAULD

Plaintiff, an alien, seeks a declaratory judgment under 28 U.S.C. 2201 *fn1" with respect to his benefits under a former employer's retirement plan. Defendants' motion to dismiss has been briefed and argued.

An alien is entitled to invoke diversity jurisdiction. *fn2" 28 U.S.C. 1332(a) (2) grants original jurisdiction to district courts of all civil actions (involving over $ 10,000) between "citizens of a State, and foreign states or citizens or subjects thereof." This grant is within the judicial power of the United States, which extends to controversies "between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." Const. Art. III, sec. 2, cl. 1. In Hepburn v. Ellzey, 6 U.S. 445, 2 Cranch 445, 453, 2 L. Ed. 332 (1805), Chief Justice John Marshall stated that "the courts of the United States are open to aliens."

 Plaintiff is a national of Sweden, residing in Monaco. For some 30 years he worked for international subsidiaries of defendant PPG Industries, Inc. (Pittsburgh Plate Glass) which maintains a pension plan (Ex. A. to Complaint) revised to conform with ERISA (Employee Retirement Income Security Act, 29 U.S.C. 1001 et seq.). Plaintiff elected early retirement in December, 1978, following a dispute with the company about payment of his salary.

 In 1961, while plaintiff was stationed at Geneva, Switzerland, it was agreed by the company that his base salary and foreign service allowance, less certain deductions, be paid in Swiss francs at a rate of 4.3 francs to the dollar. (Ex. A and B to plaintiff's affidavit of October 17, 1980). Apparently this arrangement was complied with until September, 1975, although a memorandum of October 9, 1973 (Ex. H to said affidavit) reflects discussion between company officials on the subject in which plaintiff apparently did not participate, which embodied a rate of $ 0.2319 to the franc.

 Count One of the Complaint (filed August 11, 1980) seeks adjudication of plaintiff's right to continued payment of his salary at the value in francs rather than dollars. Defendants contend that this Court is barred by the four-year statute of limitations prescribed in 42 Pa.C.S.A. 5525 for actions "upon an express contract not founded upon an instrument in writing." However, if there is a contract between plaintiff and the company entitling him to payment of his salary in Swiss francs, it arises from the understanding embodied in the exchange of letters above referred to (Ex. A. and B. to plaintiff's affidavit) which can be regarded as an "instrument in writing." This general term includes any documentation of the agreement, and does not require a formal contract prepared by counsel. Hence § 5527 prescribing a six-year limitation for actions upon a "contract, obligation or liability" founded upon an "instrument in writing" would be applicable, and the motion must be dismissed as to Count One.

 Count Two endeavors to use the higher value of the salary paid in Swiss francs to compute plaintiff's pension benefits under the plan. An element in such computation is "Final Average Monthly Salary," which is governed by the average "Monthly Salary." The monthly salary is defined (Plan I-4) as "monthly base salary," including "foreign service allowances" effective in 1976 but excluding various "special payments, fees or allowances."

 It seems clear from the agreement referred to in Count One regarding the payment in Swiss francs that this arrangement did not apply to pension benefits. It related only to payment of salary. It does not affect the computation of pension benefits governed by "base salary." Count Two must be dismissed.

 It should be mentioned that defendants seek dismissal of Counts Two through Four on the ground that the court lacks jurisdiction because of plaintiff's failure to exhaust administrative remedies under the plan, in accordance with the general doctrine of "primary jurisdiction."

 In the case of ERISA, however, there is no tribunal appointed by law to exercise expertise and manned by hearing examiners now yclept "administrative law judges," but the purpose of the requirement in 29 U.S.C. 1133 requiring a claims procedure is simply to afford a participant in the plan a fair opportunity for careful consideration and review of his claim. The PPG "administrator" is not an independent trustee or financial institution, but merely a designated employee of PPG. We therefore do not swallow completely defendants' contention of primary jurisdiction, but believe that where there is a genuine controversy between adverse parties, involving simply questions of law and the interpretation of written documents, the courts are not ousted of their customary jurisdiction. Great Northern Ry. Co. v. Merchants Elevator Co., 259 U.S. 285, 290-94, 42 S. Ct. 477, 478-480, 66 L. Ed. 943 (1922); U. S. v. Western Pacific R. R. Co., 352 U.S. 59, 64-66, 77 S. Ct. 161, 165-166, 1 L. Ed. 2d 126 (1956).

 While it is beyond the judicial power of the United States to issue advisory opinions, it is now settled that a declaratory judgment is a constitutionally permissible remedy in a case where a genuine actual controversy exists. Dumbauld, The Constitution of the United States (1964) 332-33. And in the case at bar the record reveals the existence of an actual controversy with adversary parties, differing with respect to questions of law suitable for adjudication by the Court.

 We turn therefore to Count Three, where plaintiff contends the figure of zero must be used for plaintiff's "Social Security Covered Compensation" in calculating his benefits. That term is defined (Plan, I-6) as "the monthly earnings with respect to which old age and survivors insurance benefits would be provided for a Participant under the Social Security Act if for each year until he reaches 65 his earnings are at least equal to the Social Security taxable wage base for such year."

 The formula multiplies by the years of service the sum of .85% of the Participant's final average monthly salary "not in excess of his Social Security Covered Compensation" (italics supplied) plus 1.6% of such salary "in excess of Social Security Covered Compensation." (Plan, V-1).

 Plaintiff claims that his social security "covered" compensation is zero, because as an alien he has no coverage and no social security benefits. At first blush this is a probable contention, but upon examination of the plan's definition of social security covered compensation it will be seen that that term is simply an arbitrary mode of referring to a lower range of salary as distinguished from a higher range of salary. It does not imply that the participant for whom these figures are developed actually is entitled to receive any social security benefit whatever. The plan might ...

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