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October 13, 1982


The opinion of the court was delivered by: GILES


 Teamsters Pension Trust Fund of Philadelphia and Vicinity ("Pension Fund") and the Teamsters Health and Welfare Fund of Philadelphia and Vicinity ("Welfare Fund") move to dismiss plaintiff's second amended complaint for failure to state a claim and for lack of jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b). For the reasons which follow, defendants' motion is granted.

 This is an action instituted by Crown Cork and Seal Company, Inc. ("Crown"), an employer contributor, for a declaratory judgment pursuant to 28 U.S.C. § 2201 (1976) to determine its rights to recover excess contributions which it mistakenly made to the defendant Funds. The parties have stipulated to the following facts.

 As an employer, Crown is obligated to make monthly contributions to the Pension Fund and the Welfare Funds. The Funds are multiemployer plans and employer benefit plans as defined in section 3(3) and (37) of the Employee Retirement Income Security Act, ("ERISA"), 29 U.S.C. § 1002(3) and (37) (1976 and Supp. IV, 1980). They are maintained for the sole purpose of providing retirement and welfare benefits for participants, eligible employees and dependents. The employees are members of collective bargaining units covered by collective bargaining agreements between labor organizations affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and various participating employers. Crown alleges that as a result of its misunderstanding of the terms of these collective bargaining agreements it forwarded to both Funds contributions which exceeded the contractually prescribed amounts.

 On August 20, 1979, as the result of a random field audit conducted by the Funds for the period January 1, 1978 through December 31, 1978, Crown was notified that it had made excess contributions in the amount of $4,418.77 to the Pension Fund and $4,422.85 to the Welfare Fund. On September 18, 1979, Crown applied for the return of these excess contributions and made a subsequent written demand on February 20, 1980. On March 21, 1980, the Funds advised that it questioned the propriety of refunding any of the mistakenly made contributions. Crown then informed the Funds that the total amount of its excess contributions to both Funds for the years 1970-1978 approximated $80,000.00. None of these disputed funds have been returned.

 Crown filed suit seeking a declaration that the contributions were overpaid due to a mistake of fact or law within the meaning of the Multi-Employer Pension Plan Amendments Act of 1980, ("MEPPA") 29 U.S.C. § 1103(c) (2) (A) (ii) (Supp. IV 1980), and that the statute does not prohibit the return of excess pension contributions. Five bases for subject matter jurisdiction are asserted: (1) 28 U.S.C. § 1331 (1976) -- alleging "arising under" jurisdiction to interpret the rights of the parties under section 403(c)(2)(A) of ERISA, 29 U.S.C. § 1103(c) (2) (A) (ii) by MEPPA as amended; (2) section 502(e) (1) of ERISA, 29 U.S.C. § 1132(e) (1) (1976); (3) section 4301 of MEPPA, 29 U.S.C. § 1451 (Supp. IV 1980); (4) 28 U.S.C. § 1337(a) (1976) -- alleging a case or controversy requiring the interpretation and application of ERISA, a statute affecting and/or regulating interstate commerce; and (5) section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1976) -- alleging a dispute requiring the interpretation of collective bargaining agreements. In addition, plaintiff asserts a pendent state claim with respect to its right to restitution of mistakenly made contributions received by the Funds prior to January 1, 1975, the effective date of ERISA. Defendants move to dismiss, basically asserting that none of the purported bases of jurisdiction supports federal subject-matter jurisdiction and that absent jurisdiction over the federal claims the court should not hear the pendent state claims.

 To understand fully the parties' positions, some background on ERISA's statutory scheme is necessary. ERISA was enacted in 1975 to provide for comprehensive regulation of employee pension plans. A review of its preamble, 29 U.S.C. § 1001 (1976), makes it apparent that in enacting ERISA Congress' overriding concern was that employees with long years of employment and contributions are assured of receiving their pension benefits. *fn1" "Because ERISA is employee-oriented, Congress specifically provided that the assets of a plan 'shall never inure to the benefit of any employer.' 29 U.S.C. § 1103(c) (1)." Reuther v. Trustees of the Trucking Employees of Passaic and Bergen County Welfare Fund, 575 F.2d 1074, 1077 (3d Cir. 1978).

 As a very limited exception to this general rule, ERISA provided that the requirement that a plan's assets shall not inure to an employer's benefit would not prohibit the return to the employer of contributions made by a mistake of fact, within one year after the payment of the contribution. 29 U.S.C. § 1103(c) (2) (A) (1976).

 In response to problems of growth and stability which Congress perceived to be peculiar to multi-employer pension plans, ERISA was amended by MEPPA. One of Congress' concerns in enacting MEPPA was the refund of mistaken contributions which it addressed in 29 U.S.C. § 1103(c) (2) (A) (ii) (Supp. IV 1980). The scant legislative history of this provision indicates that ERISA's "mistake of fact" exception was believed to be too narrow in the case of multi-employer pension plans, and was expanded to provide that a contribution due to a mistake of fact or mistake of law should be eligible for return to the employer if specified conditions are met. 96th Cong., 2d Sess., 126 Cong. Rec. S. 10130 (daily ed. July 29, 1980). *fn2" Thus, section 403(c) (2) (A) was amended to read:

In the case of a contribution . . . made by an employer to a multi-employer plan by a mistake of fact or law . . . paragraph 1 shall not prohibit the return of such contributions . . . to the employer within 6 months after the plan administrator determines that the contribution was made by such a mistake. (emphasis added).

 29 U.S.C. § 1103(c) (2) (A) (ii) (Supp. IV 1980).

 The MEPPA amendments left the basic jurisdictional provisions of ERISA untouched. Section 502(e) (1) of ERISA, 29 U.S.C. § 1132(e), provides "the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, or fiduciary." 29 U.S.C. § 1132(e) (1) (1976). Section 502(a) provides that a civil action may be brought by a participant, beneficiary, fiduciary, or the Secretary of Labor. Even though this express statutory language does not include employers within the scope of persons empowered to bring actions under ERISA, plaintiffs assert that this court has jurisdiction to hear their claim.

 In sorting out the parties' arguments on jurisdiction, I note that the concepts of "jurisdiction" and "cause of action" are intertwined. Whether subject matter jurisdiction exists in this case is a separate inquiry from whether a cause of action may properly be asserted. To avoid any confusion, I shall address these issues separately. Of plaintiff's asserted bases of jurisdiction, I find that only one is appropriate -- federal ...

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