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Larry Schrey v. Harold Lovett

November 17, 2011

LARRY SCHREY, PLAINTIFF,
v.
HAROLD LOVETT, DEFENDANT.



The opinion of the court was delivered by: Joyner, C.J.

DECISION

BACKGROUND

Plaintiff Larry Schrey commenced the present action in January, 2009 against Defendants Harold Lovett and Leslie Schrey (now deceased and no longer a part of this litigation). Plaintiff sued Defendant for allegedly breaching fiduciary duties under the Employee Retiree Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-114. A non-jury trial was held on January 25, 2011. At this time, the matter is ripe for disposition and the Court now makes the following:

FINDINGS OF FACT

1. Defendant Harold Lovett and Leslie Schrey founded the Bustleton Landscaping Company, Inc. ("the Company") in approximately 1955. (Stip. of Facts ¶ 1.)

2. The Company established a tax-qualified pension plan in approximately 1966. Philadelphia Pension Planning Corporation ("PPPC") was retained to perform administrative services. (Id. ¶¶ 3-4.)

3. In 1976, the Company amended the pension plan and named Defendant the "Administrative Authority." (Pl.'s Ex. 8 at ¶ 1.24.)

4. When PPPC was hired in 1966, Bernard Berger was the principal owner of PPPC. In January 1989, Charleen Ryan became dominant shareholder, president, and chief executive officer of PPPC. (Stip. of Facts ¶¶ 10-11.)

5. In 1989, the Company converted the pension plan to a profit sharing plan ("the Plan"). (Id. ¶ 5.)

6. Plaintiff Larry Schrey was an employee of the Company for about 41 years and retired in approximately 1996. Plaintiff was a participant, as the term "participant" is defined in ERISA,

29 U.S.C. § 1002(7), in both the older pension plan and more recent profit sharing plan. Plaintiff was fully vested in the Plan upon his retirement. (Stip. of Facts ¶¶ 2, 6-7.)

7. Defendant and Leslie Schrey were both trustees and participants of the Plan. The trustees were authorized to make investments, subject to the Company's direction and the direction of its agents, and consistent with the Plan funding policy and methods established by the Company. (Id. ¶¶ 9, 16.)

8. The trustees gave PPPC and Ryan full control over the funds comprising the Plan assets. (Id. ¶ 13.)

9. The 2001 Plan description identifies the Company as the Plan administrator. The description also expressly permits the administrator to "designate another person or persons to perform some duties ...


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