Opinion

CARR v. JEFFERSON DEFINED BENEFIT PLAN

Court: District Court, E.D. Pennsylvania
Filed: Aug 8, 2024
Cited by: 0 cases
Authority: More cited than 31.8%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ALICE M. CARR : CIVIL ACTION

v. :

ABINGTON MEMORIAL HOSPITAL, : NO. 23-1822

et al. :

MEMORANDUM

Bartle, J. August 8, 2024

Plaintiff Alice M. Carr, after exhausting internal

claims procedures, has sued defendants Thomas Jefferson

University (“Jefferson”) and the Jefferson Defined Benefit Plan

(“Jefferson Plan”).

She claims in Count I of the complaint that she is due

pension benefits pursuant to Section 502(a)(1)(B) of the

Employee Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. § 1132(a)(1)(B), under the Jefferson Plan, into which was

merged the Abington Memorial Hospital Plan (“AMH Plan”) on

January 1, 2018.

Plaintiff alleges in Count II that Jefferson, as the

administrator for the Jefferson Plan, failed to furnish her in a

timely manner with copies of her pension benefit statement, her

personnel and wage records from 1997, and a January 1998 pension

valuation. She maintains that Jefferson is liable for a

document penalty of $110 per day1 for each of the three items

withheld under Section 502(c)(1) of ERISA, 29 U.S.C.

§ 1132(c)(1).2

The parties agreed early on that this action would be

decided on the administrative record without any further

discovery. Before the court are cross-motions for summary

judgment (Doc. # 46, 47). Defendants in the alternative have

filed a motion for judgment on the administrative record.

Under Rule 56 of the Federal Rules of Civil Procedure,

summary judgment is appropriate “if the movant shows that there

is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A

1. Section 502(c)(1) of ERISA states that the fine is $100 per

day. However, for violations occurring after July 29, 1997, the

Debt Collection Improvement Act of 1996 raised the daily limit

to $110 per day. See Final Rule Relating to Adjustment of Civil

Monetary Penalties, 62 Fed. Reg. 40696 (July 29, 1997).

2. On August 25, 2023, plaintiff voluntarily dismissed all

claims against Boston Safe Deposit and Trust Company without

prejudice. Plaintiff also alleged that defendants breached

their fiduciary duties under Section 502(a)(3) of ERISA, 29

U.S.C. § 1132(a)(3) (Count III). On November 28, 2023, the

court granted defendants’ motion to dismiss in part. It

dismissed Count III in its entirety. Order, Carr v. Jefferson

Defined Benefit Plan, Civ. A. No. 23-1822 (E.D. Pa. Nov. 28,

2023) (Doc. # 23). Count II was dismissed as to Abington

Memorial Hospital (“AMH”), the AMH Plan, and the Jefferson Plan.

Count I was dismissed as to AMH and the AMH Plan. Id.

dispute is genuine if the evidence is such that a reasonable

factfinder could return a verdict for the nonmoving party. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). The

court must draw all inferences in favor of the nonmoving party.

See In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d

Cir. 2004).

Summary judgment is granted when there is insufficient

evidence in the record for a reasonable factfinder to find for

the nonmovant. See Anderson, 477 U.S. at 252. “The mere

existence of a scintilla of evidence in support of the

[nonmoving party]’s position will be insufficient; there must be

evidence on which the jury could reasonably find for [that

party].” Id. In addition, Rule 56(e)(2) provides that “[i]f a

party fails to properly support an assertion of fact or fails to

properly address another party’s assertion of fact as required

by Rule 56(c), the court may . . . consider the fact undisputed

for the purposes of the motion.” Fed. R. Civ. P. 56(e)(2).

Under Rule 52(a) of the Federal Rules of Civil

Procedure, “[i]n an action tried on the facts without a jury or

with an advisory jury, the court must find the facts specially

and state its conclusions of law separately.” Unlike on a

motion for summary judgment, the court may make determinations

as to bias or credibility in deciding a motion on an

administrative record. See, e.g., Dwyer v. Unum Life Ins. Co.

of Am., 548 F. Supp. 3d 468, 486 n.8 (E.D. Pa. 2021).

The following facts, relevant to Count I alleging

denial of Plan benefits, are undisputed.

Plaintiff was hired as a relief nurse by Abington

Memorial Hospital on January 13, 1997 at a rate of $16.18 per

hour, plus a shift differential when applicable. Between 1997

and 2009, plaintiff worked part-time at AMH in various

capacities. On May 23, 2010, plaintiff was hired as a full-time

employee.

On May 23, 2012, plaintiff injured her back while

working at AMH and received workers’ compensation payments from

July 5, 2012 through April 2, 2015. She did not work at AMH

during that period. AMH terminated her employment on or about

April 30, 2013.

As an employee at AMH, she was a participant in the

AMH Plan. As noted above, on January 1, 2018, that plan merged

into the Jefferson Defined Benefit Plan. Since plaintiff was

terminated prior to the plans’ merger, her eligibility is

determined by the terms of the AMH Plan.3 Under its terms, a

3. As part of the administrative record, the parties rely on

the “Pension Plan of Abington Memorial Hospital, Amendment and

Restatement, Effective January 1, 2012,” to form the basis of

AMH’s obligations to plaintiff.

participant has a vested interest in the pension plan after

completing five years of qualifying service of 1,000 or more

hours of work in each calendar year. Participants in the AMH

Plan receive one hour of service for each hour that they work.

The parties agree that plaintiff has at least four

years of qualifying service: 2003, 2010, 2011, and 2012. The

dispute between parties focuses on whether plaintiff had 1,000

hours of qualifying service for 1997, the required fifth year,

so as to have a vested pension benefit.

On May 31, 2011, pursuant to Section 105(a)(1)(A)(ii)

of ERISA, 29 U.S.C. § 1025(a)(1)(A)(ii), Francis J. Cummings,

Director of Corporate Benefits at AMH, sent plaintiff a letter

entitled “Pension Plan of Abington Memorial Hospital Annual

Benefit Statement as of January 1, 2011.” That letter attached

a pension benefit statement which simply enumerated different

pension payments for which plaintiff would be eligible once her

pension vested. A footnote in the statement advised her that as

of January 1, 2011 she did not have a vested pension:

You are 0% vested in this benefit. You are

estimated to become 100% vested in this

benefit on January 1, 2014 assuming you

remain an active member of the Pension Plan

of Abington Memorial Hospital and earn 1,000

hours of service in each completed future

year through this date.

Plaintiff submitted her formal claim for pension

benefits with Jefferson on January 7, 2022 after the AMH Plan

merged with the Jefferson Defined Benefit Plan. The parties do

not dispute that the terms of the Jefferson Plan control

administration and claims procedure. See Jefferson Plan,

effective January 1, 2020, art. XI § 11.6.

On July 5, 2022, Jefferson denied plaintiff’s claim.

Gregory Stoner, Vice President of Total Rewards at Jefferson,

cited twenty-six items that he considered in making its

determination. He noted it was AMH’s practice to “count[] all

‘hours worked’ by Ms. Carr ‘toward her pension.’” This practice

was “memorialized” in a December 2009 email between plaintiff

and Christine Tierney, Director of Employment and Compensation

at AMH. In Stoner’s denial, he relied in part on various

summary reports produced by Mercer, a global consulting company

that provides human resources and financial consulting services

and was responsible for maintaining employee records for the AMH

Plan during the relevant periods. Finally, he found the

Jefferson Plan correctly credited plaintiff hours on the basis

of her leave of absence in 2012.

Plaintiff, on July 19, 2022, submitted an internal

appeal of Jefferson’s determination. In support of her appeal,

she submitted her social security earnings records from 1997

through 2013. That submission showed that in 1997 she was paid

$16,318 rather than $16,168.46, the amount the Jefferson Plan

recorded as her compensation for that plan year. Plaintiff

argued in her appeal that her earnings as recorded by the Social

Security Administration demonstrated the Jefferson Plan

undercounted her hours. Plaintiff outlined this discrepancy as

she understood it:

The problem with the Mercer binder reports

you provided on September 29th, is that they

do not show date ranges for the data or pay

period ending dates which almost always

straddle the December 31 end date of

calendar years. That is why the reports

from the first week of January in 2000,

2006, 2009 and 2011 give the annual

valuations for the previous years. That is

also the only rational explanation for why

the Mercer report only shows 1997 pay of

$16,168.46 whereas the Social Security

record shows AMH actually paid Ms. Carr

$16,318 in 1997.

Based on her hourly rate of $16.18 and her total 1997

compensation of $16,318, plaintiff maintained she should have

been credited with 1,009 hours for the 1997 plan year

(16,318/16.18 = 1,009).

Stoner denied plaintiff’s appeal in a letter dated

November 15, 2022.4 He explained that:

[T]he Plan uses a different definition of

compensation than does the Social Security

Administration. As such, variances between

Jefferson’s/Mer[c]er’s wage figures and the

Social Security Administration’s wage figures

are not indicative of an error; rather, such

variances are expected.

4. The record does not disclose when she received the letter.

The AMH Plan defines compensation as “the total earnings prior

to withholding, paid to a Participant by the Employer, including

bonuses paid before May 1, 1987 and all overtime pay, but

excluding expense allowances or reimbursements.” (emphasis

added). Stoner noted that the Social Security Administration

uses a different definition of compensation. Neither definition

talks about the number of hours worked or enables one to

calculate the number of hours worked in any time period.

Stoner stated it was not reasonable to infer that

plaintiff actually worked 1,009 hours in 1997 on the basis of

her total compensation. Plaintiff arrived at that number by

dividing her compensation of $16,318 for social security

purposes by her hourly rate of $16.18. According to Stoner,

such a calculation assumed, without any basis, that she did not

otherwise receive any premium pay for working a shift on a

weekend or holiday and did not receive any overtime or bonuses.

AMH, Stoner explained, had “long had a practice of paying its

health care employees” such premium pay. Thus, plaintiff’s

evidence of her earnings as recorded by the Social Security

Administration was not in his view a reliable record to rebut

the Mercer records. The Mercer records, which all corroborate

each other, are the only evidence that showed the actual number

of hours plaintiff worked. The social security records in

contrast do not list the number of hours worked but only

earnings paid.

For the above reasons, Jefferson determined that

plaintiff had 950 hours of service for the 1997 calendar year

and therefore did not have a vested pension benefit.

III

First, defendants argue that plaintiff’s claim for

benefits is time-barred because her claim accrued when she was

terminated on April 30, 2013 from her position as a nurse at

AMH. She did not file suit until May 12, 2023, over ten years

later.

Because ERISA does not contain a statute of

limitations for denial-of-benefits claims,5 the analogous statute

of limitations of the foreign state ordinarily governs. Gluck

v. Unisys Corp., 960 F.2d 1168, 1180 (3d Cir. 1992). Defendants

are correct that, in Pennsylvania, the most analogous state

cause of action to a claim for denial of pension benefits under

Section 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B), is

common law breach of contract. See Hahnemann Univ. Hosp. v. All

Shore, Inc., 514 F.3d 300, 305-06 (3d Cir. 2008). The

5. ERISA contains a statute of limitations for claims alleging

a breach of fiduciary duty but does not identify a statute of

limitations for non-fiduciary claims. See Syed v. Hercules,

Inc., 214 F.3d 155, 159 (3d Cir. 2000). Both claims brought by

plaintiff are non-fiduciary claims.

applicable statute of limitations for such a claim is four

years. Id.; 42 Pa. Cons. Stat. § 5525(8).

Federal law governs the date when a claim accrues

under ERISA, even if a state statute of limitations is being

borrowed. Romero v. Allstate Corp., 404 F.3d 212, 221 (3d Cir.

2005). The federal “discovery rule” holds that a claim accrues

when a plaintiff discovers or should have discovered the injury

that forms the basis of his or her claim. Miller v. Fortis

Benefits Ins. Co., 475 F.3d 516, 520 (3d Cir. 2007). In the

case of a claim for denial of benefits under ERISA, a claim

accrues when there is a clear indication of repudiation. There

does not have to be a formal denial if the repudiation to the

participant is clear and is known or should have been known. A

clear repudiation can occur when the plan pays an erroneously

calculated benefit award which is less than the amount to which

the participant is entitled. See id. at 521-22; see also Keen

v. Lockheed Martin Corp., 486 F. Supp. 2d 481, 489 (E.D. Pa.

2007).

The fact that plaintiff brought this lawsuit more than

four years after she stopped working at AMH, however, does not

end the inquiry. In lieu of an otherwise applicable statute of

limitations, a plan may impose a contractual limitations period

on the time by which a participant must file suit as long as the

time period is reasonable and the otherwise applicable statute

of limitations does not forbid any shortening of the limitations

period. Heimeshoff v. Hartford Life & Accident Ins. Co., 571

U.S. 99, 105-09 (2013). Jefferson has adopted its own

limitations period here. Under the terms of the Jefferson Plan,

which controls the administration of plaintiff’s claim,

The deadline to file legal action that

relates to the Plan and seeks a remedy . . .

is the later of (1) 30 months after the

claimant knew or reasonably should have

known of the principal facts on which the

claim is based, or (2) six (6) months after

the claimant has exhausted the claims and

review procedures set forth above.

Jefferson Plan, effective January 1, 2020, art. XI § 11.6(h)

(emphasis added). This contractual provision is not

unreasonably short, and the parties cite no state law that

imposes an impediment to its validity.

Here, the limitations period in the Jefferson Plan

supersedes the Pennsylvania four-year statute of limitations.

Under the Plan, plaintiff had the option of filing this action

no later than 30 months after she knew or reasonably should have

known of the principal facts on which the claim is based or the

option of filing no later than six months after she exhausted

the Plan’s claims and review procedures. Under the first

option, the federal discovery rule is incorporated. Under the

second option, that discovery rule is not included. Under the

second option the limitations period clearly began to run, that

is accrued, when plaintiff exhausted those procedures, not at

some earlier period even if she knew or should have known of the

principal facts on which her claim is based. The accrual date

under the second option was November 15, 2022. If the time

began to run at an earlier date, the second option would be

meaningless. Plaintiff filed her complaint on May 12, 2023,

three days before the window closed. Plaintiff had a right to

rely on the Plan language which was drafted by the employer.

The court rejects for the reasons stated above, the

defendants’ argument that the plaintiff’s claim accrued when she

lost her job at AMH on April 30, 2013 and thus plaintiff’s claim

is time-barred by the Pennsylvania four-year statute of

limitations. Miller v. Fortis Benefits Insurance Co., on which

defendants rely, is inapposite. There, the Plan incorporated

the state statute of limitations. Consequently, the federal

discovery rule analysis with respect to accrual was central to

whether the claim was filed too late. Here, in contrast, the

specific language of the Jefferson Plan overrides the

applicability of any state statute of limitations with its

accrual analysis to the extent that that analysis is

inconsistent with the plan language.

Accordingly, defendants’ motion for summary judgment

on the ground that her claim is time-barred will be denied.

The court turns now to the parties’ cross-motions for

summary judgment related to plaintiff’s claim for benefits.6

Under Section 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B),

a plan participant may bring an action to recover benefits under

the terms of their employee benefit plan. Section 503 of ERISA

requires that the employee benefit plan “afford a reasonable

opportunity to any participant whose claim for benefits has been

denied for a full and fair review by the appropriate named

fiduciary of the decision denying the claim.” 29 U.S.C.

§ 1133(2).

A court reviews de novo an administrator’s decision

unless the plan grants discretionary authority to the

administrator to determine eligibility and interpret plan terms.

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).

The parties agree that Jefferson, as the administrator of the

Jefferson Plan, has discretionary authority. Therefore, the

court’s review is limited to whether the decision was arbitrary

and capricious, that is, made without reason, unsupported by

6. Appellate courts are divided as to whether a court may

resolve factual disputes on summary judgment in the context of

ERISA benefits cases. See Avenoso v. Reliance Standard Life

Ins. Co., 19 F.4th 1020, 1024 (8th Cir. 2021). But see Doe v.

Harvard Pilgrim Health Care, Inc., 974 F.3d 69, 72 (1st Cir.

2020). Our Court of Appeals has regularly considered cross-

motions for summary judgment. See, e.g., Noga v. Fulton Fin.

Corp. Emp. Benefit Plan, 19 F.4th 264, 266, 272 (3d Cir. 2021).

substantial evidence, or erroneous as a matter of law. Doroshow

v Hartford Life & Accident Ins. Co., 574 F.3d 230, 234 (3d Cir.

2009). When an administrator both adjudicates and pays claims,

the court should consider this conflict of interest as one

factor in determining whether there has been an abuse of

discretion. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117

(2008). Here, since Jefferson is both the plan administrator

and the plan sponsor, a conflict of interest exists.

An employer is required to maintain records

“sufficient to determine the benefits due or which may become

due to such employees” under Section 209 of ERISA, 29 U.S.C.

§ 1059(a)(1). Unless more than one employer adopts the plan,

which is not the case for the AMH Plan, ERISA does not impose an

obligation on the plan administrator to retain such records.

Plaintiff does not cite any authority concluding otherwise.

Defendants cite Haskett v. Southern Benefit Administrators,

Inc., No. 22-5817, 2023 U.S. App. LEXIS 14136 (6th Cir. June 6,

2023) for the proposition that a plan is not required to

maintain detailed employment records, such as payroll records or

timesheets. In that action, the Sixth Circuit concluded that

summary reports, such as those kept by Mercer for the AMH Plan,

to be sufficient. Id. at *16.

Plaintiff argues that Jefferson’s decision was

arbitrary and capricious both because it relied on

unsubstantiated summary records developed by Mercer and because

the plan administrator did not consider plaintiff’s social

security records. Plaintiff thus maintains that the plan

administrator’s review was not “full and fair.” For review to

be full and fair, the claimant must know what evidence the

decisionmaker has relied upon, have an opportunity to address

the accuracy and reliability of the evidence, and be provided

the opportunity for the decisionmaker to consider the evidence

presented to both parties in reaching his or her decision. See

Teeter v. Supplemental Pension Plan of Consol. Rail Corp., 705

F. Supp. 1089, 1095 (E.D. Pa. 1989) (citing Grossmuller v. Int’l

Union, United Auto. Aerospace & Agric. Implement Workers of Am.,

715 F.2d 853, 858 n.5 (3d Cir. 1983)); see also 29 C.F.R.

§ 2560.503-1(g)(1)(i)-(iv).

Plaintiff provided her social security earnings

records to Jefferson to be considered as part of her appeal of

its denial of her pension benefits. At that point, the plan

administrator was obligated to consider this evidence in

adjudicating her appeal. See Teeter, 705 F. Supp. at 1096. The

plan administrator did so.

Stoner, the Vice President of Total Rewards at

Jefferson, noted in his denial of plaintiff’s appeal that he

considered her earnings records for social security purposes

from 1997 through 2013. Plaintiff’s social security earnings

records demonstrate she earned $16,318 in the 1997 calendar

year. Based on Stoner’s description of what he reviewed, he

considered plaintiff’s social security earnings records in

making his determination.

Stoner made clear that he assessed the evidence

presented both by the Jefferson Plan and plaintiff in reaching

his determination. He provided a detailed explanation for why

the total social security earnings did not match the Jefferson

Plan summary records. He explained that a variance existed

because, as permitted by ERISA:

[T]he Plan uses a different definition of

compensation than does the Social Security

Administration. As such, variances between

Jefferson's/Mer[c]er's wage figures and the

Social Security Administration’s wage

figures are not indicative of an error;

rather, such variances are expected.

Stoner further explained that plaintiff’s calculation

of 1,009 hours presumes she did not receive any “premium pay for

different shifts (e.g., weekends and holidays, overtime) or

bonuses, all of which AMH has long had a practice of paying its

health care employees (including in 1997)[.]” Plaintiff

presented no affidavit or other evidence that she was an

exception and never received any differential pay in 1997.

Stoner concluded that the Jefferson Plan’s record of 950 hours

worked in 1997, supported by multiple records maintained by

Mercer, “is reliable, and that [plaintiff’s] argument to the

contrary is unpersuasive.” Jefferson’s explanation has remained

consistent over time.

There is no evidence before the court that the records

contemporaneously maintained by Mercer, an outside entity, are

incorrect. The records show plaintiff’s total hours of service

that the Jefferson Plan has counted for each plan year. Each

document that states her hours worked corroborates the others.

These summary reports serve as the historical record for all

plan participants. The Social Security records submitted by

plaintiff show only her annual earnings. They do not record the

number of hours worked per year for those earnings. Plaintiff

is simply drawing an inference that she worked more than 1,000

hours in 1997 based on her hourly rate. Stoner is relying on

the content of the Mercer records which chronicle the actual

number of hours plaintiff worked. It was not unreasonable for

the plan administrator to rely on those records.

Finally, the court must take into account that

Jefferson, the plan administrator, was conflicted. “The Supreme

Court’s broad view of whether a conflict of interest exists,

therefore, encompasses an arrangement where an employer makes

fixed contributions to a plan, evaluates claims, and pays claims

through a trust.” Miller v. Am. Airlines, Inc., 632 F.3d 837,

847 (3d Cir. 2011). It is undisputed that Jefferson is the plan

sponsor of the Jefferson Defined Benefit Plan, which is funded

through a trust. Therefore Jefferson is responsible for both

paying claims as well as evaluating the claim’s validity.

This conflict of interest must be balanced with other

factors. Our Court of Appeals has explained that a court should

only “disturb an administrator’s decision based on a conflict of

interest if evidence either suggests the conflict actually

infected the decision[-]making or if the conflict is one last

straw that calls a benefits determination into question.”

Dowling v. Pension Plan for Salaried Emps. Of Union Pac. Corp. &

Affiliates, 871 F.3d 239, 251 (3d Cir. 2017). Where there is no

evidence that a conflict has affected the administrator’s

decision-making or that there were additional procedural factors

that suggest the benefits determination was incorrect, the court

should apply deference to the decision. Id.

In this action, plaintiff has failed to provide

evidence demonstrating that the conflict influenced Jefferson’s

decision-making. Beyond the fact that Jefferson is the plan

sponsor, there is no further information identified by plaintiff

that would suggest Jefferson’s decision-making was impacted by

this conflict. Further, she has not identified any procedural

irregularities. In Miller v. American Airlines, our Court of

Appeals overturned a benefits determination on the basis that

the determination was arbitrary and capricious. 632 F.3d at

856. In contrast to the situation here, the court there found

not only that the administrator had a conflict of interest, but

also that the administrator reversed its decision without new

medical information, relied on non-existent plan requirements in

making its determination, and failed to comply with Section 503

of ERISA, 29 U.S.C. § 1133. Miller, 632 F.3d at 848-52.

In this action, Jefferson has maintained its position

in denying plaintiff’s benefits, relies on its uncontested,

contemporaneously maintained, records showing the hours of

service worked provided adequate notice regarding her denial,

and afforded her the opportunity to appeal. The administrator

met the ERISA requirement for full and fair review in denying

pension benefits to plaintiff and had a reasonable basis for

doing so. The existing conflict does not call into question the

administrator’s decision.

The court must give deference to Jefferson’s decision

and does not engage in de novo review. In sum, the decision of

Jefferson was not arbitrary and capricious. The motion of

defendants Jefferson Defined Benefit Plan and Thomas Jefferson

University for summary judgment as to Count I will be granted,

and the cross-motion of plaintiff for summary judgment will be

denied.

Plaintiff claims in Count II of the complaint that

Jefferson, as plan administrator, is liable for a document

penalty of $110 per day for withholding documents under Section

502(c)(1) of ERISA, 29 U.S.C. § 1132(c)(1). The following

relevant facts are undisputed.

On October 13, 2021, plaintiff’s counsel sent a letter

addressed to the plan administrator of the AMH Plan, Francis J.

Cummings, Director of Corporate Benefits of AMH, and David

Levin, of the AMH Corporate Benefits department. In it, her

counsel requested “the latest updated summary plan description,

the Plan document itself, the latest Plan annual report, any

terminal report, the bargaining agreement, trust agreement,

contract, and any other instrument under which the applicable

Plans operate.” Significantly, the letter also stated in a

stand-alone sentence: “please send me a current statement of Ms.

Carr’s retirement benefit account(s).” Plaintiff’s counsel

followed up with a second letter to the same addressees on

November 1, 2021 which reiterated these requests. He also sent

a copy of this second letter to Thomas Jefferson University “via

USPS First Class and Priority Mail.” On December 9, 2021,

Cummings spoke with plaintiff’s counsel regarding plaintiff’s

retirement benefits but failed to provide counsel with the

correct contact information for the Jefferson Plan

administrator. As a result, counsel followed up via email with

Cummings on December 9, December 15, and December 22, 2021.

These emails requested that Cummings forward plaintiff’s October

13 and November 1 letters to the plan administrator.

On December 22, 2021, John Parkinson, the Director of

Retirement at Jefferson, emailed plaintiff’s counsel in

response. He stated that the documents plaintiff requested were

attached to the email and would be mailed to the office of

plaintiff’s counsel by December 23. Parkinson’s response

provided the relevant plan documents but declined to provide a

pension benefit statement because

A review of the Plan’s records indicates

that Ms. Carr did not have a vested pension

benefit entitlement from the Plan at her

termination of employment on April 30, 2013.

Therefore, no benefit statement from the

Plan is enclosed. . . . Plan records

indicate that Ms. Carr did not complete five

Years of Service with at least 1,000 hours

during the course of her employment from

January 13, 1997 through April 30, 2013.

On December 28, 2021, plaintiff’s counsel requested

“Ms. Carr’s service records with a breakdown by year of her

completed Hours of Service” as well as “records relating to Ms.

Carr’s accrued PTO benefits and all employee handbooks or rules

relevant to PTO benefits.” On January 5, 2022, Parkinson

provided a spreadsheet which noted that plaintiff had 950 hours

of service in 1997, and more than 1,000 hours of service in

2003, 2010, 2011, and 2012. Parkinson declined to provide

further personnel or wage records absent a subpoena.

Plaintiff’s counsel responded that same day. He

explained that such personnel and wage records would be

necessary in order to “determine Ms. Carr’s annual Hours of

Service and entitlement to retirement benefits under the Plan.”

He reiterated this request on January 28, 2022. On February 4,

2022, Kate Kleba, Associate General Counsel of Jefferson,

responded that Section 105(a) of ERISA does not require

Jefferson to provide “personnel and wage records” to plaintiff.

See 29 U.S.C. § 1025(a)(1)(B)(ii). Plaintiff’s counsel repeated

his request on July 22, 2022. Jefferson denied this request

again on August 16, 2022.

Section 105 of ERISA requires that a plan

administrator “furnish a pension benefit statement . . . to a

participant or beneficiary of the plan upon written request.”

29 U.S.C. § 1025(a)(1)(B)(ii). Such participants or

beneficiaries need not be current employees. See 29 U.S.C.

§ 1002(7)-(8). A pension benefit statement must indicate the

total benefits accrued and the nonforfeitable pension benefits,

if any, which have accrued, and the earliest date on which

benefits will become nonforfeitable. 29 U.S.C.

§ 1025(a)(2)(A)(i). Such statement must be provided within

thirty days of the request. 29 U.S.C. § 1132(c)(1). Plaintiff

maintains in Count II that Jefferson failed to provide her with

the following three items: (1) a pension benefit statement, (2)

personnel and wage records from 1997, and (3) a January 1998

pension valuation.

Plaintiff argues the court should impose a penalty

pursuant to Section 502(c)(1) of ERISA, 29 U.S.C. § 1132(c)(1),

for Jefferson’s failure to provide these documents to her within

the mandated thirty days. Section 502(c)(1) states that “[a]ny

administrator” who fails to meet the requirements of Section

105(a) or other sections of ERISA:

[M]ay in the court’s discretion be

personally liable to such participant or

beneficiary in the amount of up to $100 per

day from the date of such failure or

refusal, and the court may in its discretion

order such other relief as it deems proper.

Id.

A plan administrator is only required to provide a

pension benefit statement to beneficiaries or participants. A

participant is a person with a “colorable claim to vested

benefits[.]” Miller v. Rite Aid Corp., 334 F.3d 335, 342 (3d

Cir. 2003) (citing Firestone Tire, 489 U.S. at 117-18)). A

colorable claim is defined as one which is non-frivolous and

made in good faith. See Ericson v. Greenberg & Co., P.C., 118

F. App’x 608, 610-11 (3d Cir. 2004). It was undisputed that

plaintiff had four years of vested service with AMH with only

1997, the fifth year, contested. Her social security records

showed she had earned more during 1997 than the Jefferson Plan

had on record. By dividing her earnings as stated in the social

security records by her hourly rate, the number of hours she

worked in 1997 would exceed 1,000. Although she did not

prevail, her claim was colorable. It was not frivolous and was

made in good faith.

Jefferson argues a penalty should not be imposed on

the basis of plaintiff’s October 13, 2021 letter because it was

not addressed to Thomas Jefferson University and therefore the

plan administrator was not on notice of the request.

Nonetheless, Jefferson does not dispute that the letter was

received and reviewed by Cummings, who was employed by Jefferson

and who had some responsibility as to the AMH Plan. This

October 13, 2021 letter serves as clear notice to Jefferson of

plaintiff’s request.

Jefferson further maintains that the letters sent by

plaintiff’s counsel did not put Jefferson on “clear notice”

because plaintiff did not request a pension benefit statement as

characterized by Section 105(a). See Kollman v. Hewitt Assocs.,

LLC, 487 F.3d 139, 144-45 (3d Cir. 2007). Although plaintiff’s

counsel did not cite Section 105(a)(1)(B)(ii) in his October 13,

2021 letter, he specifically requested a “current statement of

[plaintiff’s] retirement benefit account(s).” Citing the

specific subsection of the statute is not necessary. The words

used were sufficiently precise to serve as “clear notice” that

plaintiff requested a pension benefit statement. In any event,

Jefferson understood that a provision benefit statement was

requested since in its response, dated December 22, 2021, it

stated that “no benefit statement from the Plan is enclosed.”

Jefferson does not dispute that Cummings received the

October 13, 2021 letter, which was sent via First Class and

Priority Mail. However, the record does not disclose the date

Cummings received it. The letter was sent from an address in

Philadelphia to an address in the Philadelphia suburbs. Absent

evidence to the contrary, it is reasonable to presume it was

received at the latest, on October 16, 2021, three days after it

was sent. See Hayes v. N.J. Dep’t of Hum. Servs., No. 23-1829,

2024 WL 3464517, at *2 (3d Cir. July 19, 2024) (precedential);