The opinion of the court was delivered by: GREEN
CLIFFORD SCOTT GREEN, District Judge.
This is an action commenced by the plaintiffs, Teamsters Pension Trust Fund of Philadelphia and Vicinity and Teamsters Health and Welfare Trust Fund of Philadelphia and Vicinity ("Pension Fund", "Welfare Fund" or collectively "Funds") against Philadelphia Fruit Exchange, Inc. and Armand Campese ("Defendants") to collect unpaid fringe benefit contributions allegedly due to the Funds from Defendants. Presently pending before this court are cross motions for summary judgment. The issue presented herein is, where it is discovered by audit that an employer has made overpayments to a pension or welfare fund in certain years and it is also discovered in the same audit that the employer has been delinquent to the same fund in certain other years, can that employer, consistent with the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001a-1461 (Supp. IV 1980) ("ERISA"), set off the delinquent amounts by the amount overpaid. For the reasons discussed infra, I conclude that the employer cannot. The facts, as stipulated by the parties, are set forth below.
Jurisdiction is based on sections 502 and 515 of ERISA, 29 U.S.C. §§ 1132 and 1145 (Supp. IV 1980), Section 301(a) of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 185(a) (Supp. IV 1980) ("LMRA") and, on Section 9.1(a) and (b) of the Pennsylvania Wage Payment and Collection Law of 1961, as amended, Pa.Stat.Ann. tit. 43 § 260.9a(a) and (b) (Purdon Supp.1984-1985) ("WPCL").
Plaintiff Welfare Fund is a "multiemployer plan" and an "employee benefit plan" within the meaning of subsections 3(1), (3) and (37) of ERISA, 29 U.S.C. § 1002(1), (3) and (37) (Supp. IV 1980). The Welfare Fund is a trust fund established and maintained pursuant to the provisions of Section 302(c)(5) of the LMRA, 29 U.S.C. § 186(c)(5) (Supp. IV 1980), for the purpose of providing medical, hospitalization and other health benefits to eligible employees (and their dependents) who are in collective bargaining units covered by collective bargaining agreements with labor organizations affiliated with the Teamsters and various participating employers.
This action is brought on behalf of the Funds by Charles J. Schaffer, Jr., the Funds' Administrator, who is a "fiduciary" as that term is defined in Section 402(a)(2) of ERISA, 29 U.S.C. § 1102(a)(2) (Supp. IV 1980).
Plaintiffs, Pension and Welfare Funds are organizations or parties to whom any type of wages are payable within the meaning of subsections 9.1(a) and (b) of the WPCL, Pa.Stat.Ann. tit. 43 § 260.9a(a) and (b) (Purdon Supp.1984-1985).
Defendant Philadelphia Fruit Exchange, Inc. ("PFE") at all times relevant hereto was engaged in conduct and/or was doing business in the Commonwealth of Pennsylvania, and continues to engage in conduct and/or do business within the Commonwealth of Pennsylvania, and has employed and continues to employ persons to engage in conduct and do business on behalf of said Defendant, and, as such, is an employer within the meaning of Section 2.1 of the WPCL, Pa.Stat.Ann. tit. 43 § 260.2a (Purdon Supp.1984-1985).
At all times relevant hereto, defendant Philadelphia Fruit Exchange, Inc. was and remains a party to a collective bargaining agreement between itself and Teamsters Local Union No. 929 ("Union") pursuant to which PFE is obligated to make certain monthly contributions to the plaintiff Pension and Welfare Funds in contractually-designated amounts.
The collective bargaining agreements between PFE and the Union cover the time periods:
(a) July 23, 1976 through July 23, 1979;
(b) July 23, 1979 through July 24, ...