We agree with Plaintiff. Our reading of the Complaint and its attachments do not indicate the existence of any administrative path to relief. For that reason and for the purposes of this motion to dismiss, Plaintiff's claim is not barred for failure to exhaust administrative procedures. In the alternative, we find that the allegation in the Complaint that Plaintiff has "done all acts necessary to receive the [LTD] benefits" can reasonably be inferred to allege that Plaintiff has exhausted whatever remedies existed. Complaint P 37. For this reason, we deny this portion of Defendants' Motion.
4. Pre-Emption by ERISA
Count II brings a claim for disability-based discrimination under the PHRA. ERISA "supersedes any and all State laws insofar as they may now or hereafter relate to any employee benefit plan" covered by ERISA. 29 U.S.C. § 1144(a). According to Defendants, the PHRA relates to this ERISA-covered plan, and is therefore pre-empted. Plaintiff argues, however, that the PHRA is not pre-empted because it is co-extensive with the ADA, and as such, is preserved by ERISA.
The Supreme Court has made a number of rulings on the issue of pre-emption under ERISA and despite the parties' disagreement over their meaning, the case-law is uniform and coherent. First, the Supreme Court has consistently held that a state law "relates to" a plan if the law directly or indirectly regulates the plan itself. New York Conf. of Blue Cross & Blue Shield v. Travelers Ins. Co., 131 L. Ed. 2d 695, 115 S. Ct. 1671 (1995). A law that, in contrast, only regulates the insurer or affects pricing does not relate to a plan. Id. at 1679. So, in Travelers, the Court held that a New York law did not relate to a plan when the law regulated the amount hospitals charged different insurance companies, even when those different charges resulted in some benefit plans being more expensive than others. Id. In contrast, the Court found that a different New York law did relate to a plan when the law prohibited employers from structuring their employee benefit plans in a way that discriminated on the basis of pregnancy. Shaw, 463 U.S. at 97.
Under the above guidance, we have no problem finding that the PHRA relates to ERISA in that it prohibits employers from structuring their employee benefit plans in a way that discriminates on the basis of disability. This does not end the analysis, however, because Plaintiff argues that even if the PHRA relates to the plan, the PHRA is not pre-empted because it is co-extensive with the ADA.
Shaw explained that ERISA exempts federal laws from pre-emption. 29 U.S.C. § 1144(d). Certain federal laws, such as Title VII and the ADA, specifically preserve nonconflicting state laws. 42 U.S.C. § 12201. These laws contain work-sharing and referral arrangements between the federal and state governments. The Supreme Court reasoned that if these co-extensive state laws were pre-empted by ERISA, that the federal government's ability to enforce its laws would be impaired. For that reason, the Court held that state laws that are co-extensive with federal laws are not pre-empted under ERISA. By the same token, "state laws [that] prohibit employment practices that are lawful under" federal law are properly pre-empted. Id. at 103. Further, a state law can have portions of it pre-empted and portions of it not pre-empted. Id. at 105-06.
Above, we found that Plaintiff had adequately pleaded a cause of action under the ADA. Pennsylvania is a "referring" state with a work-sharing agreement with the EEOC and the PHRA is co-extensive with the ADA in at least large part. Under the Shaw holding, then, Plaintiff's claim under the PHRA is not pre-empted by ERISA insofar as the PHRA provisions are compatible with the ADA. Id. at 104. For this reason, we find that Count II is not properly dismissed to the extent that the PHRA is co-extensive with the ADA.
Defendants also seek to dismiss Count IV, an estoppel claim under state law, on the ground that it is pre-empted by ERISA. Plaintiff responds that in fact, his claim is a federal ERISA estoppel claim, not a state one. As such, he contends that his claim can stand because he has pleaded all the necessary elements of an ERISA estoppel claim. Gridley v. Cleveland Pneumatic Co., 924 F.2d 1310, 1319 (3d Cir.), cert. denied, 501 U.S. 1232, 115 L. Ed. 2d 1023, 111 S. Ct. 2856 (1991); National Cos. Health Benefit Plan v. St. Joseph's Hosp., 929 F.2d 1558, 1571-72 (11th Cir. 1991); Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155 (3d Cir. 1990); Pane v. RCA Corp., 868 F.2d 631 (3d Cir. 1989).
Defendants deny that Plaintiff has stated a claim for ERISA estoppel. They contend that in the Third Circuit, a Plaintiff must plead extraordinary circumstances in addition to the elements Plaintiff did plead. Curcio v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 235 (3d Cir. 1994); Stires v. Sprint Corp., 1995 U.S. Dist. LEXIS 15432, No. 95-1510, 1995 Westlaw 632077 (D.N.J. Sept. 18, 1995).
We agree with Defendant that Plaintiff must plead extraordinary circumstances in order to state a claim for equitable estoppel. The cases cited by Plaintiff do not contradict this holding due to the fact that those cases arose either in different fact settings or were resolved on different bases. Furthermore, we find that Plaintiff has failed to plead extraordinary circumstances and for that reason, Count IV must be dismissed. If Plaintiff is able to amend his Complaint to make such an allegation, he may petition the Court for leave to amend. Otherwise, the dismissal of Count IV is with prejudice.
5. Breach of Fiduciary Duty
Count V of Plaintiff's Complaint purports to state a claim under 29 U.S.C. § 1109(a), which makes a fiduciary liable to an ERISA plan for any losses resulting from a breach of that fiduciary's duties. Defendants maintain that Plaintiff cannot state a claim under this section because only the plan may recover the losses, not an individual beneficiary. Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 141-42, 87 L. Ed. 2d 96, 105 S. Ct. 3085 (1985); Walter v. International Ass'n of Machinists Pension Plan, 949 F.2d 310 (10th Cir. 1991).
In response, Plaintiff agrees that he cannot recover solely under section 1109(a). Instead, he contends that he should have pleaded his claim under section 1132(a)(3), which allegedly does permit recovery by individual plaintiffs. He asks leave of this Court for permission to amend his complaint in the event this Count is dismissed. We do dismiss Count V for failure to state a claim and do grant Plaintiff fifteen days leave to amend Count V.
An appropriate Order follows.
AND NOW, this 18th day of March, 1996, upon consideration of Defendants' Motion to Dismiss Counts I, II, III, IV and V of Plaintiff's Complaint and responses thereto, the Motion is hereby GRANTED in PART and DENIED in PART. The Motion is GRANTED with respect to Counts IV and V. Plaintiff is GRANTED fifteen days from the date of this Order's entry to amend Count V. The Motion is hereby DENIED in all other respects.
BY THE COURT:
J. CURTIS JOYNER, J.
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