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PORCELLINI v. STRASSHEIM PRINTING CO.

September 26, 1983

MICHAEL C. PORCELLINI
v.
STRASSHEIM PRINTING CO., INC., et al.



The opinion of the court was delivered by: VANARTSDALEN

 VanARTSDALEN, J.

 I. Introduction

 Michael C. Porcellini, the plaintiff in this action, is a former employee of defendant Strassheim Printing Co., Inc. (Strassheim). He was terminated from his employment at Strassheim on or about July 2, 1981. During his employment at Strassheim, Mr. Porcellini was a participant and a beneficiary of Strassheim's profit-sharing trust and Strassheim's pension trust. In this action, Mr. Porcellini alleges that he made repeated requests for information relating to the amount of money which had accumulated in the respective trusts on his behalf. He contends that the defendants failed and refused to deliver the requested information in violation of the duties and responsibilities imposed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq. Mr. Porcellini seeks to recover under Section 1132(c) of ERISA which permits a court, in its discretion, to award a statutory penalty of up to $100.00 per day against a plan administrator who fails or refuses to comply with a request for information which the administrator is required under ERISA to produce. Upon consideration of the testimony and the exhibits presented at trial, I make the following findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).

 II. Findings of Fact

 1. Michael C. Porcellini was employed at Strassheim Printing Co., Inc., for approximately eighteen years. Strassheim is a small, family-owned, printing business. Mr. Porcellini was the most senior, non-family member in a management position.

 2. William G. Strassheim is the former president of the company. In June of 1978, Mr. Strassheim's son, Ronald G. Strassheim, became active in the company's management and operation. By December of 1978 or January of 1979, Ronald G. Strassheim was running the entire business and William G. Strassheim was no longer actively involved in the daily decision-making. Ronald G. Strassheim was involved in an automobile accident in March of 1980 and his father resumed the company's management until December of 1980 when Ronald G. Strassheim returned to his job. Ronald G. Strassheim is currently the company's president.

 3. William G. Strassheim has continued to work for the company on a part-time basis working primarily at home and making only occasional visits to the company's premises. He maintains an office in his home in which he does some type-setting and some work with a home computer.

 4. Mr. Porcellini was terminated by Ronald G. Strassheim on or about July 2, 1981.

 5. Strassheim instituted two employee benefit plans during the course of Mr. Porcellini's employment. The Strassheim Printing Company Employee's Pension Trust is a non-contributory single employer pension trust initiated in September of 1973 and restated and amended in compliance with ERISA in September of 1976. The Strassheim Printing Company Profit-Sharing Trust is a non-contributory single employer profit-sharing trust initiated in January of 1976. Mr. Porcellini was a participant and a beneficiary of both plans.

 7. Plaintiff's Exhibit No. 1 is a summary plan description of the Strassheim profit-sharing trust. Plaintiff's Exhibit No. 2 is a summary plan description of the Strassheim pension trust. Mr. Porcellini received summary plan descriptions at or about the time that the plans were initiated.

 8. The professional administrator of both trusts is R.E.G. Estate Planning Associates (R.E.G.). Prior to the initiation of the respective employee benefit trusts, Robert Gladden of R.E.G. met and discussed the plans with William G. Strassheim, who at the time was Strassheim's president. Mr. Gladden also discussed the nature and the significance of the plans with Mr. Porcellini on several occasions. Copies of the plan documents for the pension trust and the profit-sharing trust, as well as the annual reports for each trust, were on file at the office of R.E.G. at all relevant times.

 9. When the plan administrator of the profit-sharing trust was changed from William G. Strassheim to Ronald G. Strassheim, Mr. Gladden sent a notification of the change to the Strassheim Printing Company, Inc. Mr. Porcellini did not receive said notice.

 10. Mr. Porcellini was concerned about the amount of money which had accrued in his profit-sharing and pension plans. In the fall of 1980, he made an oral request to William G. Strassheim as to the amount of money which had inured to his benefit. He received no explanation or response. Mr. Strassheim did not inform Mr. Porcellini that his son, Ronald G. Strassheim, was the plan administrator of the profit-sharing trust and that questions regarding the profit-sharing trust should be made in writing to him or to R.E.G.

 11. Subsequent to his termination, Mr. Porcellini made an oral request to Ronald G. Strassheim for information concerning the amount of money which had accumulated in his profit-sharing trust and in his pension trust. Mr. Porcellini received no information from Ronald G. Strassheim as a result of that request.

 12. In August of 1981, Mr. Porcellini met with Mr. Gladden of R.E.G. The purpose of the meeting was to discuss with Mr. Gladden the various options available to Mr. Porcellini upon Mr. Porcellini's receipt of the accrued funds in the pension and profit-sharing trusts. Mr. Gladden did a "work-up" of the approximate amount of benefits that Mr. Porcellini could expect to receive. Mr. Gladden showed Mr. Porcellini the calculations from the insurance company that was involved in the investment of the funds, but was unable to give Mr. Porcellini the exact amounts which he could expect because the final contributions from the Strassheim company had not yet been received. Mr. Gladden and Mr. Porcellini discussed the possibility of "rolling-over" the trust funds but Mr. Porcellini did not make a final decision at that time.

 13. Although Mr. Porcellini wanted verification of the figures used by Mr. Gladden to compute the anticipated trust fund benefits, Mr. Porcellini did not make such a request to Mr. Gladden at the August, 1981 meeting, either orally or in writing. No request was made by Mr. Porcellini at that meeting for the trust documents or the annual reports.

 14. Mr. Porcellini met with Mr. Gladden again in October of 1981 to sign the necessary surrender papers which would enable him to obtain the funds being held in the pension and profit-sharing trusts. Mr. Porcellini made no request at the October, 1981 meeting for information from Mr. Gladden, such as the trust documents or annual reports, to enable him to verify the amounts which Mr. Gladden informed him he would be receiving.

 15. Since Mr. Porcellini received no response as a result of his oral requests to William Strassheim or Ronald G. Strassheim for information which would have enabled him to verify the amount of money withheld on his behalf in the pension and profit-sharing trusts, Mr. Porcellini contacted the United States Department of Labor for assistance in obtaining this information. The Department of Labor was unable to provide assistance to Mr. Porcellini.

 16. In December of 1981, Mr. Porcellini employed legal counsel in order to obtain the funds withheld in the pension and profit-sharing trusts and to obtain information which would enable him to verify the amounts withheld.

 17. On December 9, 1981, Howard J. Casper, Esquire, as counsel for Mr. Porcellini, wrote to William G. Strassheim demanding immediate payment of the benefits under both the pension and profit-sharing trusts. Mr. Casper further requested copies of the trust documents for both plans, copies of the plans themselves and the most recent copies of the Form 5500 which are the annual reports submitted to the government. The letter further stated, "We would appreciate hearing from you as plan administrator concerning all of the above immediately." The letter was addressed to William G. Strassheim at the Strassheim company address.

 18. At the time this letter was written, Ronald G. Strassheim was the plan administrator of the Strassheim profit-sharing trust. The administrator of the Strassheim pension trust at this time was Strassheim Printing Co., Inc. William G. Strassheim was an employee of Strassheim at this time, although Ronald G. Strassheim was running the business.

 19. William G. Strassheim received the letter which was sent by Mr. Casper to the Strassheim company office. Mr. Strassheim read the letter and referred it to Mr. Gladden of R.E.G. Mr. Strassheim did not give his son Ronald G. Strassheim a copy of the letter from Mr. Casper. Mr. Strassheim did not know what the documents were which were requested in the letter.

 20. On December 23, 1981, Margery Christman, an employee of R.E.G., wrote to Mr. Porcellini and enclosed with that letter copies of the summary plan descriptions for the pension trust and the profit-sharing trust. A copy of that letter was sent to William G. Strassheim. The letter from Margery Christman to Michael C. Porcellini did not include copies of the trust documents, the plans or the annual reports.

 21. On December 31, 1981, Mr. Casper wrote to Margery Christman at R.E.G. advising that Mr. Porcellini was represented by counsel. Mr. Casper requested once again copies of the respective trust documents and plans with the particular sections, ...


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