Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McCarrin v. Pollera

United States District Court, E.D. Pennsylvania

September 30, 2019

MICHAEL W. MCCARRIN Plaintiff,
v.
MARIO POLLERA. individually and as Union Trustee; TIMOTHY FEENEY, individually and as Union Trustee; JOSEPH LYONS, individually, and as Management Trustee; and, NEWSPAPER AND MAGAZINE EMPLOYEES UNION AND PHILADELPHIA PUBLISHERS PENSION PLAN Defendants.

          MEMORANDUM

          C. Darnell Jones, II J.

         I. INTRODUCTION

         Plaintiff Michael McCarrin commenced this action against Defendants Mario Pollera, Timothy Feeney, Joseph Lyons, and the Newspaper and Magazine Employees' Union and Philadelphia Publishers' Pension Plan, alleging that Defendants improperly denied his application for retirement benefits, in violation of the Employee Retirement Income Security Act of 1974 (“ERISA”).[1] Specifically, Plaintiff alleges that the Pension Plan, as managed and amended by Defendants, contained rules which preempted the Selective Services Act of 1940, [2]leading Defendants to deny Plaintiff vesting credit for three years of military service. Plaintiff brings his claim under Section 1132(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B). Plaintiff further alleges Defendants' actions constituted a breach of fiduciary duties, owed to both Plaintiff and other Plan Participants. Defendants filed the instant Motion for Summary Judgment, to which Plaintiff has responded and Defendants have replied. For the reasons set forth herein, Defendants' Motion shall be granted.

         II. FACTUAL BACKGROUND

         a. Undisputed Facts

         The undisputed facts[3] establish that Plaintiff commenced working as a Mailer at the Philadelphia Inquirer newspaper in September 1967. (SUF ¶ 1; RSUF ¶ 1.) He remained employed as a Mailer until he began serving in the military in 1969.[4] (SUF ¶ 2; RSUF ¶ 19.) During the years before his military service began, Plaintiff was considered a Part-time Journeymen Extra Mailer, meaning he did not have regular shifts, nor was he guaranteed a set number of shifts per week or per year. (SUF ¶ 3 n.1; ECF 45-22, Ex. D-22, ¶¶ 5-9; RSUF ¶ 35.) In 1967, Plaintiff worked 44 shifts. (SUF ¶ 1; RSUF ¶ 6.) In 1968, he worked 141 shifts. (SUF ¶ 1; RSUF ¶8.) In 1969, he worked 54 shifts. (SUF ¶ 1; RSUF ¶ 14.)

         Thereafter, from 1969 through August of 1971, Plaintiff served in the military. (SUF ¶ 2; RSUF ¶ 19.) Upon his discharge from the military, Plaintiff returned to the Inquirer and continued working there through 1974. (SUF ¶ 2; RSUF ¶¶ 21, 41-43; ECF 45-6, Ex. D-7.) During this time, he was once again employed as a Part-time Journeymen Extra Mailer, and did not have regular shifts or a set schedule. (SUF ¶ 3 n.1; ECF 45-22, Ex. D-22; RSUF ¶ 35.) In 1971, Plaintiff worked 87 shifts. (SUF ¶ 2; RSUF ¶ 21.) In 1972, he worked 106 shifts. (SUF ¶ 2; RSUF ¶41.) In 1973, he worked 165 shifts. (SUF ¶ 2; RSUF ¶ 42.) In 1974, he worked 105 shifts. (SUF ¶ 2; RSUF ¶ 43.) Plaintiff did not work at the Inquirer from 1975 through 1999.[5](SUF ¶ 5; Ex. D-7.)

         In 2000, Plaintiff returned to work as a Mailer at the Inquirer, and he worked 38 shifts during that year.[6] (SUF ¶ 6; Ex. D-7; ECF 45-12, Ex. D-13.) In 2001, he worked 151 shifts. (SUF ¶ 6; Ex. D-7; Ex. D-13.) In 2002, Plaintiff worked 148 shifts. (SUF ¶ 6; Ex. D-7; Ex. D-13.) In 2003, he worked 38 shifts. (SUF ¶ 6; Ex. D-7; Ex. D-13.) In 2004, Plaintiff worked 24 shifts. (SUF ¶ 6; Ex. D-7; Ex. D-13.) In 2005, he worked 225 shifts. (SUF ¶ 6; Ex. D-7; Ex. D-13.) In 2006, he worked 204 shifts. (SUF ¶ 6; Ex. D-7; Ex. D-13.) In January 2007, he worked 4 shifts. (SUF ¶ 6; Ex. D-7; Ex. D-13.) Plaintiff stopped working at the Philadelphia Inquirer in 2007. (SUF ¶ 6; Ex. D-7; Ex. D-13.)

         After turning 65 years-old in 2015, Plaintiff applied for pension benefits.[7] (SUF ¶ 7; RSUF ¶ 46; Ex. D-13 at 2.) In January 2016, he provided the Plan Administrator with documents to support his claim for benefits for the years he was enlisted in the military. (SUF ¶ 8; RSUF ¶ 55; Ex. D-13 at 1.) On March 24, 2016, Plan Administrator Diane Binke sent Plaintiff a letter advising that his claim for three years of credited service for the time he served in the military was denied on the basis that he was not employed in a “covered” employment capacity prior to the year 2000. (SUF ¶ 9; RSUF ¶ 63.) Specifically, according to Binke, Plaintiff was ineligible for credited service while he was in the military because he did not work in Covered Employment either immediately before or immediately after his period of military service. (SUF ¶ 9; RSUF ¶ 63; ECF 45-4, Ex. D-5.) Binke informed Plaintiff of his right to appeal the denial, which he did on April 4, 2016. (SUF ¶¶ 9-10; RSUF ¶¶ 66-67; Ex. D-5.) The Board of Trustees of the Newspapers and Magazine Employee Union and Philadelphia Pension Fund (the “Board”) considered Plaintiff's appeal at their April 12, 2016 quarterly meeting, and again denied Plaintiff's claim for credited service for his time in the military. (SUF ¶ 11; RSUF ¶¶ 67-72.)

         Thereafter, the Board issued a letter to Plaintiff wherein it explained the reasoning behind its decision. (SUF ¶ 12; RSUF ¶ 76.) The Board stated that Plaintiff had not worked in Covered Employment from 1967 through 1974 because, under the 1972 Plan in effect when he left the Inquirer, only Regular Full-Time employees on the Inquirer's Priority List were considered covered. (SUF ¶ 12; RSUF ¶ 76; ECF 45-10, Ex. D-11.) Notwithstanding that fact, the Board found that even if Plaintiff had worked in Covered Employment from 1967 through 1974, he would not be entitled to credited service for that period because Plaintiff was not vested in any benefits under the terms of the Plan. (Ex. D-11 at 2-3.) Additionally, Plaintiff experienced breaks in service because he did not work at the Inquirer in 1974 or 1975, or between 1976 and 2000. (Ex. D-11 at 2-3.) The Board concluded that the cumulative years of break in service served to extinguish any Pension credits that Plaintiff had arguably accrued from 1967 through 1974, including any Pension credit accrual during his term of military service, whether analyzed under the terms of the 1972 Plan, its 1976 amendments or the 1985 Plan. (Ex. D-11 at 2-3.)

         b. Disputed Facts[8]

         Plaintiff disputes Defendants' contention that the 1972 Pension Plan governs his claim for benefits. Instead, he argues his claim is governed by the terms of the 2006 Pension Plan which was in effect in 2007-the last year he last worked for the Inquirer. (ECF 46, Pl.'s Resp. 19.) Plaintiff further disputes Defendants' contention that because Plaintiff did not work in Covered Employment during the years 1967 through 1974, the Inquirer made no Pension contributions on his behalf. (RSUF ¶¶ 2, 5, 13, 18, 25, 30, 36, 40, 44.) Finally, Plaintiff disputes Defendants' position that he is not entitled to military credit.

         A party asserting that a fact is genuinely disputed must support the assertion by citing to particular parts of materials in the record, which may include affidavits. See Fed. R. Civ. P. 56(c)(1). However, “conclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment.” Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009) (citing Blair v. Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002)) (internal quotation marks omitted). Instead, an affiant must set forth specific facts that reveal a genuine issue of material fact. Id. If a party fails to properly address another party's assertion of fact, a court may consider the fact undisputed and grant summary judgment. See Fed. R. Civ. P. 56(e)(2)-(3); see also Judge C. Darnell Jones II Chambers Policies and Procedures (rev'd Dec. 2, 2016), http://www.paed.uscourts.gov/documents/procedures/jonpol.pdf (“The Court will not consider any description of a fact that is not supported by citation to the record. Statements of Material Facts in support of or in opposition to a motion for summary judgment must include specific and not general references to the parts of the record that support each of the statements, such as the title of or numbered reference to a document, the name of a deponent and the page(s) of the deponent's deposition, or the identity of an affidavit or declaration and the specific paragraph relied upon. Pinpoint citations are required.”) With this standard in mind, this Court shall address each dispute in turn.

         i. The 2006 Pension Plan

         Plaintiff provides no citation to the record to support his argument that the 2006 Pension Plan governs his claim for benefits. He appears to argue that because he was trying to claim benefits under the Plan which was in effect in 2006 (what Plaintiff terms the “2006 Plan” was actually the 2001 Plan) this is the Plan under which Defendants' should have analyzed his claim. (See, e.g., RSUF ¶¶ 46-49.) Simply saying this does not make it true. Plaintiff cites to no evidence that supports his claim that the terms of the 2001 Plan govern his dispute with Defendants. In contrast, Defendants provide full evidentiary support for their position that prior Plans are what govern Plaintiff's eligibility benefits. (See generally Exs. D-11, D-14, D-15, D-16, D-17; D-24 at 60-61; see also SUF ¶¶ 9, 12). The record makes it clear that under the Plan in effect in 2006, any earlier credited service would not be counted if it had been lost under prior Plans, and it was therefore appropriate to determine whether Plaintiff had been vested under the prior Plans. (See e.g. D-16 at 1, 22-23; D-24 at 60-61.)[9] The Court therefore finds this fact to be undisputed by the record. See Fed. R. Civ. P. 56(e)(2) (“the court may . . . consider the fact undisputed” when a party fails to properly support an assertion of fact or address another party's assertion of fact).

         ii. Plaintiff's Pre-2000 Work

         The record does not support Plaintiff's position that there is a dispute about whether he worked in Covered Employment before the year 2000. Plaintiff contends this work was Covered Employment because he “worked under a unit of the Union for an employer subject to a Collective Bargaining Agreement and Plaintiff's employer was required to make contributions to the Pension for each shift worked by the Plaintiff.” (RSUF ¶ 44; see also ¶ 40.) Plaintiff provides no citation to the record to support this contention beyond his own self-serving Affidavit. Specifically, Plaintiff contends he was covered by a Pension Plan for his pre-2000 work at the Inquirer, and that “[c]ontributions were made based on Plaintiff's work to the Pension fund by Plaintiff's employer for all the shifts worked by Plaintiff[.]” (ECF No. 46-5, Pl.'s Aff. ¶¶ 1, 40.)[10] This statement-the only portion of the record to which Plaintiff cites in support of his dispute-amounts to nothing more than a conclusory, self-serving assertion, which is only part of a larger affidavit that fails to set forth specific facts to reveal a genuine issue of material fact. See Kirleis, 560 F.3d at 161.

         Furthermore, the evidentiary record before the Court demonstrates that the Inquirer did not make any Pension contributions on Plaintiff's behalf until the year 2000. (Ex. D-25 at 54:16-24 and 55:1-2.) Additionally, as Defendants note, Plaintiff's Complaint failed to put these facts at issue, as it did “not involve any claims that Defendants failed to give him pension credits for contributions made on his behalf to a predecessor Plan[.]” (ECF 47, Defs.' Surreply ¶¶ 5, 13, 18, 25; see also Compl. 2 (noting in his Synopsis of the case that “he was entitled to seven years pension credit” based on his three years of military service and four years of work in the early 2000s); RSUF ¶ 75.) As such, this does not constitute a genuine issue of material fact and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.