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VERNAU v. FRANKSTOWN FOOD A RAMA

December 30, 1986

CHARLES E. VERNAU, SR., CAR C. HUBER, on behalf of themselves as Trustees and the other Trustees of the U.F.C.W. Local 23 and CONTINUING PENSION FUND, CONTRIBUTING EMPLOYERS HEALTH FUND, and CONTRIBUTING EMPLOYERS LEGAL FUND
v.
FRANKSTOWN FOOD A RAMA, INC.



The opinion of the court was delivered by: WEBER

 After a non-jury trial in this ERISA action for the recovery of delinquent contributions to employee benefit plans, both parties petitioned this court for an award of fees and costs under the Act. 29 U.S.C. § 1132(g).

 Plaintiffs, trustees of the employee benefit trusts, had alleged that defendant corporation was the employer responsible for contributions for two separate supermarkets. Following non-jury trial of the issue, we concluded that another separate and distinct corporation, not a party to this litigation, was the employer responsible for contributions at one of the stores. As a result, plaintiff was only able to recover from defendant the contributions due on one store and not the other.

 Having recovered at least a portion of the delinquent contributions they sought, plaintiffs petitioned for an award of fees. Having been successful in the defense of a large portion of the claim, defendant also seeks fees.

 The applicable provision of the Act is at 29 U.S.C. § 1132:

 
(g) Attorney's fees and costs; awards in actions involving delinquent contributions
 
(1) In any action under this subchapter (other than an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs to either party.
 
(2) In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan --
 
(A) the unpaid contributions,
 
(B) interest on the unpaid contributions,
 
(C) an amount equal to the greater of --
 
(i) interest on the unpaid contributions, or
 
(ii) liquidated damages provided for under the plan . . .
 
(D) reasonable attorney's fees and costs of the action, to be paid by ...

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