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DENNIS v. BOARD OF TRUSTEES OF THE FOOD EMPLRS. LA

October 25, 1985

RONALD C. DENNIS and DONNA L. DENNIS, his wife, Plaintiffs
v.
BOARD OF TRUSTEES OF THE FOOD EMPLOYERS LABOR RELATIONS ASSN. AND UNITED FOOD AND COMMERCIAL WORKERS UNION PENSION FUND, Defendant



The opinion of the court was delivered by: CALDWELL

 I. Introduction.

 The parties have filed cross motions for summary judgment. The plaintiffs, Ronald C. Dennis (Dennis) and his wife, Donna L. Dennis, allege in their complaint that the defendant Board of Trustees unlawfully suspended Dennis's pension benefits in violation of the pension plan. Defendant asserts that the suspension was in compliance with the agreement and a proper exercise of its discretion.

 II. Background.

 Plaintiff Dennis was an employee of Acme in York, Pennsylvania, for thirty-one and a half years. (Complaint, para. 6). When Acme withdrew from the supermarket business in that area, he was forced out of his employment in June of 1982. (Complaint, para. 7; Counterclaim, para. 3). He subsequently found employment with Pantry Fresh, a food store in Camp Hill, Pennsylvania, in January of 1983. Because he was ostensibly eligible for a pension following thirty years of Acme employment, he also decided to apply for pension benefits in July of 1983. Prior to the termination of his employment, Dennis had received a copy of the Summary Plan Description. It contained the following suspension of benefits rule which plaintiffs deny being aware of at the time Dennis applied for his pension:

 
Employment After Retirement
 
After you retire under the Plan, you are free to find work in another industry without jeopardizing your pension, with one exception. If your pension is a disability pension and you lose your eligibility for Social Security disability before age 65, your pension will stop.
 
If you obtain work in the same industry, the same trade or craft and geographic area covered by the Plan, your pension from this Plan may be suspended during the period of that employment.
 
If you are in doubt about whether taking a certain job after a retirement will cause your pension to be suspended, you may ask the Board of Trustees for a ruling. Write a letter to the Board and give the name and address of the company you intend to work for and describe the nature of your duties.

 (Exhibit H to defendant's motion for summary judgment) (emphasis added).

 Dennis began receiving pension benefits on August 1, 1983. (Affidavit of Hugh Brookhart, para. 5). He informed the Board of his Pantry Fresh employment in response to a routine, annual questionnaire sent to pensioners to determine if they were working and, hence, possibly no longer eligible for a pension. The questionnaire was more specific than the summary of the plan, defining employment in the retail food industry as employment "with a Retail Food Store of a structure size similar to any of the employers in the Plan."

 III. Discussion.

 We must evaluate the motions under the following, well ...


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