# CARR v. JEFFERSON DEFINED BENEFIT PLAN

> District Court, E.D. Pennsylvania · August 8, 2024

URL: https://www.frixlaw.com/law-library/cases/10667013

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** August 8, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.
I
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).
II

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.
IV
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.
V
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.
VI
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);
see also Fed. R. Civ. P. 6(d).

Jefferson failed to respond to plaintiff’s request
until December 22, 2021. In that letter, John Parkinson,
Director of Retirement at Jefferson, explained that plaintiff
needed at least 1,000 hours in five years of service in order to
have a vested pension benefit entitlement. However, Jefferson’s
records determined “that Ms. Carr did not have a vested pension
benefit entitlement from the Plan at her termination of
employment on April 30, 2013.” Plaintiffs contend that this
explanation is not a pension benefit statement. While it may
not have been called a pension benefit statement, it contained
the essential information of such a statement. Pursuant to
Section 105(a)(2)(A), it set forth “on the basis of the latest

available information” that plaintiff had not accrued any
benefits in a manner “calculated to be understood by the average
plan participant[.]” 29 U.S.C. § 1025(a)(2)(A).
It is the plan administrator who is supposed to know
the terms of the Pension Plan, a complex legal document, and the
relevant information pertaining to the participant. The
salutary purpose of supplying a participant with a pension
benefit statement is to apprise the participant of the status of
the participant’s benefits or potential benefits, whether vested
or inchoate. What plaintiff received on December 22, 2021
served that purpose.
Later correspondence by plaintiff’s counsel suggests

that he interpreted the letter as providing the essence of a
pension benefit statement. Though he reiterated his requests
for an accounting of plaintiff’s retirement benefits in an email
dated December 28, 2021 to Jefferson, plaintiff’s counsel does
not pursue his request for a pension benefit statement after
receipt of Parkinson’s December 22, 2021 explanation.
Any pension benefit statement must be furnished within
thirty days after receipt of the request. The statute provides
for a penalty of $110 per day for an untimely response.
29 U.S.C. § 1132(c)(1). Jefferson failed to provide a pension
benefit statement until December 22, 2021, sixty-seven days
after October 16, the day it is presumed that Jefferson received

the October 13, 2021 letter. A response was thirty-seven days
overdue.
Jefferson maintains that Romero v. SmithKline Beecham,
309 F.3d 113, 120 (3d Cir. 2002), requires that the court find
that the plan administrator’s delay prejudiced plaintiff before
the court may impose a penalty. 309 F.3d 113, 120 (3d Cir.
2002). The court disagrees. While prejudice to the plaintiff
is one of the appropriate factors to be considered, Romero did
not hold that prejudice is an essential condition to imposition
of a penalty. The Court of Appeals cited decisions where
prejudice was not a sine qua non. See id. (citing Bannistor v.
Ullman, 287 F.3d 394, 407 (5th Cir. 2002); Yoon v. Fordham Univ.

Faculty & Admin. Ret. Plan, 263 F.3d 196, 204 n.11 (2d Cir.
2001)).
The response of Jefferson in furnishing to plaintiff
the information related to a pension benefit statement, as noted
above, was 37 days late. Jefferson provided no excuse for being
dilatory and acted only after several follow-up letters from
plaintiff’s counsel. While plaintiff may not have been
prejudiced, Jefferson’s conduct was intentional. The court
notes that the duty imposed by Congress on plan administrators
under Section 502(c) to act in a timely fashion is not
precatory. See 29 U.S.C. § 1132(c). The court will exercise
its discretion to award plaintiff a penalty of $4,070 ($110 x 37

days) for this lapse.
Plaintiff also seeks in Count II the imposition of a
penalty against Jefferson for its failure to provide personnel
and wage records from 1997 and a 1998 pension valuation. She
maintains that Section 105(a), 29 U.S.C. § 1025(a), required
their production because that subsection “should be interpreted
broadly to accommodate a plan participant’s request that the
administrator provide the computations to support the amount
stated.” Haberern v. Kaupp Vascular Surgeons Ltd. Defined
Benefit Plan & Tr. Agreement, 822 F. Supp. 247, 264 (E.D. Pa.
1993), rev’d in part, 24 F.3d 1491 (3d Cir. 1994). However,
Section 502(c) of ERISA, as a statutory penalty provision, is

strictly construed. It only requires the administrator to
furnish a pension benefit statement stating the total benefits
accrued and nothing else. Where “Congress has not plainly and
unmistakably established that [Section] 502(c) penalties should
be applied to violations of the kind here at issue,” the court
should decline to interpret the penalty provision to embrace
such violations. Groves v. Modified Ret. Plan for Hourly Paid
Emps. of Johns Manville Corp. & Subsidiaries, 803 F.2d 109, 118
(3d Cir. 1986). Plaintiff’s request to be provided with other
documents does not fit within the definition of a pension
benefit statement.
Accordingly, plaintiff’s motions for summary judgment

in Count II for a penalty will be granted in the amount of
$4,070. Defendant’s motion for summary judgment in Count II
will be denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10667013. Public record. Not legal advice.