requisite 10 years of "credited service." The parties do not dispute that plaintiff has 5 years of credited service for the years 1970 to 1975. The dispute centers upon whether plaintiff has additional credited service.
Plaintiff claims that he has the requisite years of credited service based on his employment and Union membership prior to 1970. Alternatively, he claims that in 1962 defendants breached their fiduciary obligation: (1) by not advising him to incorporate so that he could make contributions to the pension fund on his own behalf and (2) by later refusing his request to make retroactive contributions to the Pension Fund.
Defendants have moved for summary judgment claiming that, under the express terms of the 1962 Pension Plan, plaintiff's Union membership and employment prior to 1970 cannot be credited towards accrual of pension benefits. Defendants also assert that, as a matter of law, they did not breach any fiduciary duty to plaintiff by not advising him to incorporate in 1962, since there was no fiduciary obligation to individually counsel plaintiff. Moreover, they claim that they could not have allowed plaintiff to make retroactive contributions in 1975 since to do so would compromise the Fund's integrity.
Rule 56(c) of the Federal Rules of Civil Procedure requires the trial court to enter summary judgment whenever it appears from the record evidence that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. The moving party bears the burden of demonstrating that no material issues of fact exist. Ettinger v. Johnson, 556 F.2d 692, 696 (3d Cir. 1977). The non-movant's allegations, supported by affidavits or other evidence, must be taken as true, and all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Scott v. Plante, 532 F.2d 939 (3d Cir. 1976), Moorehead v. General Motors Corp., 442 F. Supp. 873, 875 (E.D.Pa.1977). Even viewing the record evidence in this case in the light most favorable to plaintiff, this court finds that there are no genuine issues of material fact and that summary judgment is required as a matter of law.
For purposes of clarity, I will address separately each of plaintiff's claims for relief and will indicate in each instance, why summary judgment in favor of defendants is appropriate based on the undisputed facts of record.
A. As a Matter of Law, Plaintiff is Not Entitled to Any Credited Service for the Plan Years Prior to May 1, 1962
Plaintiff alleges that under the Pension Plan, service prior to May 1, 1962 is credited from the date of initiation into an affiliated local union; that he became a Union member in 1937 and remained a member through May 1, 1962; and that based on his Union membership and employment prior to 1970, he had over 20 years of credited service at the time the Pension Plan was created on May 1, 1962. Therefore, plaintiff claims he had a vested pension as of May 1, 1962.
The uncontradicted Affidavit of Robert L. Meyers establishes that upon the Pension Plan's inception on May 1, 1962, the Board of Administration granted past service credit only to those individuals who had worked in "covered employment" prior to May 1, 1962, (i. e., employment under a collective bargaining agreement negotiated by the Union or one of its affiliates) and who were working in "covered employment" on May 1, 1962 at which time contributions to the Pension Fund on their behalf were commenced.
The undisputed facts show that on May 1, 1962 plaintiff was not working in "covered employment" within the meaning of the Pension Plan. Section 2.1 of the 1962 Plan makes clear that a person is entitled to credited service only for the period of time that he has been a "covered member." Section 1.5 of the 1962 Plan, in turn, defines a "covered member" to mean a member of the bargaining unit for whom payments to the Pension Trust Fund are made by the Union or one of its affiliated locals.
A "member of the bargaining unit" is defined in section 1.10 of the 1962 Plan as:
(a) person who, at any relevant time, is engaged in, or is available for and seeking to obtain, and whose chief source of livelihood is, the type of work, within the geographic jurisdiction, which, on May 1, 1962 was, or after that date is, covered by a collective bargaining agreement requiring payments by the employer to the Pension Trust Fund. (emphasis supplied).
Thus, under the express terms of the Pension Plan, a person is granted past service credit only if that person was a "covered member" at the Plan's inception. To be a "covered member" a person must be covered by a collective bargaining agreement requiring payments by the employer to the Pension Trust Fund.
It is undisputed that between 1954 and 1970 plaintiff was an employer. Thus, on May 1, 1962, he was not engaged in the type of work which was covered by a collective bargaining agreement and which required payments by his employer to the Pension Trust Fund. It is also undisputed that Plaintiff, as an employer, did not enter into a collective bargaining agreement with the Union at any time.
Plaintiff does not contend that there is any ambiguity in the Plan provisions as set forth above. The plain meaning of the 1962 Plan provisions is that plaintiff had to be a "covered employee" on May 1, 1962 to be entitled to past credited service. Nowhere in the 1962 Plan is there any language indicating that past credited service is allowed simply for Union membership or for prior employment and plaintiff has not cited any Plan provisions which require a contrary interpretation. In fact, the uncontradicted evidence set forth in Mr. Meyers' Affidavit is that prior Union membership, of itself, is irrelevant to a determination of eligibility for pension benefits and that the Board of Administration has consistently ruled that an individual may not be credited for service prior to May 1, 1962 unless the individual had been working under the terms of collective bargaining agreement negotiated by the Union or one of its local affiliates, and had been working in such covered employment on May 1, 1962.
The undisputed facts are that plaintiff was not working in covered employment on May 1, 1962. Therefore, as a matter of law, I find that plaintiff was not entitled to credited service for his Union membership and employment prior to 1970 and that he lacked the requisite 10 years of credited service to qualify for pension benefits upon his retirement in 1975.
Since I have found that plaintiff did not accrue credited service for his employment and Union membership in the years prior to 1970, I do not need to consider plaintiff's arguments that any break-in credited service was cured by his subsequent credited service from 1970-1975. In any event, this argument is without merit under the terms of the Plan. Because plaintiff was an employer who did not have a collective bargaining agreement with the Union or one of its affiliates, his break-in service is determined by reference to section 2.4(a) of the Plan. The Pension Plan provides, at section 2.5, that a section 2.4(a) break-in credited service cannot be cured by subsequent credited service. Thus, plaintiff's claim that any break-in credited service was cured falls of its own weight under the express provisions of the Plan.
B. As a Matter of Law, Defendants Cannot Be Estopped From Relying On the Express Provisions of the 1962 Plan
Alternatively, plaintiff asserts that even if the actual terms of the Plan do not permit past service credit for his Union membership and employment prior to 1970, he is entitled to it based on a statement contained in an informational booklet issued by the Pension Fund in May, 1968. This booklet described the highlights of the Pension Plan in lay terms and contained the statement:
Service prior to May 1, 1962 is credited from your date of initiation into a local Union affiliated with the Metropolitan District Council of Philadelphia and Vicinity.