# ROMBACH v. PLUMBERS LOCAL UNION NO. 27 PENSION FUND

> District Court, W.D. Pennsylvania · July 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10668141

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** July 26, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10668141

## How later opinions describe it (automated extraction)

- explaining ERISA “records rule” and general exclusion of additional evidence when the abuse of discretion standard applies

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CLYDE ROMBACH, III, )
)
Plaintiff, )
) 2:20-cv-01348
v. )
)
PLUMBERS LOCAL UNION NO. 27 )
PENSION FUND, )

Defendant.
OPINION
Mark R. Hornak, Chief United States District Judge
Plaintiff Clyde Rombach, III (“Plaintiff” or “Rombach”) filed suit in this Court against
Defendant Plumbers Local Union No. 27 (“Union”) Pension Fund (“Fund” or “Plan”), a multi-
employer pension plan maintained pursuant to collective bargaining agreements between the
Plumbers Local Union No. 27 and various participating employers, one of which is W.G. Tomko,
Inc., the company for which Rombach worked for over thirty (30) years. Relying on the Employee
Retirement Income Security Act, 29 U.S.C. 1001, et seq. (“ERISA”), Rombach alleges that the
Plan improperly suspended his early retirement pension benefits for which he was otherwise
eligible from October 2016 to December 2019 contrary to the provisions of the Plan and in
violation of ERISA. (ECF No. 1).
Each party has filed a Motion for Summary Judgment. (ECF Nos. 23, 26). Both Motions
have been fully briefed, oral argument held before the Court, and supplemental post-argument
materials filed. The matter is ripe for resolution.
For the reasons that follow, Plaintiff’s Motion for Summary Judgment (ECF No. 26) is
GRANTED, while Defendant’s Motion for Summary Judgment (ECF No. 23) is DENIED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Most of the historical facts involved in this case are not in dispute, and were the subject of
specific Findings of Fact and Conclusions of Law by the Plan Trustees. (ECF No. 17-2) (“FF/CL”).
Clyde Rombach first joined the Plumbers Local Union No. 27 as an apprentice plumber and

subsequently became a Plan participant in 1976. In 1987, Rombach began working for W.G.
Tomko, Inc, (“Tomko”), a contractor that performs, among other things, plumbing work here in
Western Pennsylvania. Tomko was at all times relevant to these matters a signatory and
contributing employer of and to the Plan.
Rombach worked for Tomko from 1987 until 2019, first as a foreman through
approximately 2005-2006, and then as Project Manager from some time in the 2005–2006-time
frame to 2009 following a promotion to that position. During Rombach’s time as Project Manager,
Tomko continued to make contributions to the Pension Fund on Rombach’s behalf, contributions
which the Plan accepted and for which Rombach received credit. Rombach also retained his
membership in the Union until the end of 2008, when he resigned his Union membership, at the

same point at which Tomko also stopped contributing to the Plan on his behalf.
The record reflects that Rombach’s Union membership and contributions to the Plan on his
behalf ended as of December 31, 2008. (ECF No. 17-4, Ex. D). The Trustees found that such was
the last day of Rombach’s covered employment under the applicable labor agreement and the Plan,
a point neither party contests. (ECF No. 17-4, Ex. D). And this change in status appears from the
record to coincide with Rombach’s assuming the Senior Project Manager position.
As Senior Project Manager, Rombach was performing many of the same basic duties as
he did when he was Project Manager, but as the Senior Project Manager he was at least one rung
above the Project Managers within the Tomko organization and had the responsibility for
supervising the Project Managers. (FF/CL No. 20)); however, in neither position did he personally
perform plumbing or pipefitting services, nor does it appear that he directly supervised job-site
workers or field operations as to any such work. The record is also plain that at no time while
Rombach was a Senior Project Manager were contributions to the Plan made on his behalf, nor

was he a member of the Union, nor did the Plan or the Union take issue with those status changes.
On or around August 15, 2016, Rombach, at that time aged 60 and a Senior Project
Manager, applied for early retirement benefits under the Plan based on his prior participation in
the Plan, to become effective October 1, 2016. The Plan allows for an early pension provided
that the participant “reached age 57 and completed ten years of service.” Plan Section 4.03. The
Plan acknowledged Rombach’s eligibility for such a benefit, but simultaneously suspended his
pension benefit based on his then-current work at Tomko in the position of Senior Project Manager.
Upon the issuance of the suspension directive, Rombach triggered the Plan’s administrative
appeal provision, which entitles Plan beneficiaries who have had their benefits suspended to a full
hearing before the Plan’s Trustees. Rombach, represented by counsel, appealed the benefits

suspension on February 3, 2017. The Board of Trustees of the Pension Fund denied Rombach’s
appeal on June 29, 2017 and informed Rombach of the denial on July 18, 2017. Then, on January
9, 2018 and following further correspondence between counsel for Rombach and for the Plan,
Rombach was granted a hearing before the Trustees, which was conducted on July 12, 2018.1 On
December 10, 2018, the Plan issued a final decision of the Trustees denying Rombach’s further
appeal.
On September 8, 2020, Rombach filed this civil action seeking recovery of the benefits he

1 The appeal hearing generated an extensive administrative record, including a stipulation of facts entered into by
Rombach and the Fund, by their respective counsel, along with a verbatim transcript. That administrative record is
part of the record here. (ECF No. 17).
alleges were improperly suspended during the referenced suspension period. The last month during
which Rombach’s pension benefits were suspended by the Plan was December 2019, and as of
that date, payment of his pension benefits had been reinstated. His pension benefit was thus
suspended for the last quarter of 2016 and the full years of 2017, 2018, and 2019. Rombach seeks

recovery of those suspended benefit amounts, along with any other remedies ERISA permits, such
as interest, litigation costs and counsel fees.
After conducting some fact discovery in this case while it has been in this Court, both
parties moved for summary judgment. (ECF Nos. 23, 26). Both parties responded to the respective
opposing Motions, (ECF Nos. 29, 33), and Plaintiff filed a reply (ECF No. 35). Oral argument on
the cross-motions was held. Defendant later filed a Notice of Supplemental Authority (ECF No.
39) to which Plaintiff replied (ECF No. 43). Both Motions having been fully briefed, they are ripe
for disposition.
DISCUSSION
I. Standard of Review

The issue before the Court is, in actuality, rather straightforward: namely, whether
Rombach’s work at Tomko as a Senior Project Manager and within the time window of suspension
at issue was a proper basis for the suspension of his Plan retirement benefits during that window.
In answering that question in the context of this action and the competing summary judgment
motions, the Court must first determine the applicable standard of review.
A. Summary Judgment
A court may grant summary judgment only where “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. Rule 56(c). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “There
is a genuine dispute of material fact if the evidence is sufficient for a reasonable fact finder to
return a verdict for the nonmoving party.” Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 666
(3d Cir. 2016) (citing Anderson, 477 U.S. at 248). However, a mere “scintilla of evidence” in the
nonmovant’s favor does not create a genuine issue of fact, nor does speculation or conjecture defeat

a motion for summary judgment. Ramara, 814 F.3d at 666 (citing Anderson, 477 U.S. at 252;
Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228 (3d Cir. 2009)).
Where cross-motions for summary judgment are filed, “the court must rule on each party’s
motion on an individual and separate basis, determining, for each side, whether a judgment may
be entered in accordance with the Rule 56 standard.” Auto-Owners Ins. Co. v. Stevens & Ricci Inc.,
835 F.3d 388, 402 (3d Cir. 2016). The Court’s job, then, is to determine whether there exists a
genuine issue of material fact as to any of the arguments made in favor of summary judgment for
either party.
B. Review of the Trustees’ Administrative Decision
With respect to the Court’s review of the Plan’s administrative decision, all parties agree

that the Plan itself grants the Trustees broad discretion in the administration of the Plan, including
the interpretation and application of its terms. Plan Section 10.04. Given that broad grant of
discretion, the highly deferential “abuse of discretion” standard of review would apply in resolving
the Motions for Summary Judgment. Viera v. Life Ins. Co of North America, 642 F. 3d 407, 413
(3d Cir. 2011); Clauss v. Geisinger Health Plan, 196 F. Supp. 3d 463, 469 (M.D. Pa. 2016). Under
that standard, the only “record” properly before the Court with respect to facts, as well as the basis
for the Plan’s suspension decision and the affirmance of that decision following the July 2018
Trustees’ hearing, would be the administrative record created as a result of that hearing. That
record is on the docket. (ECF No. 17).
In our Circuit, application of that standard of review by this Court of the Trustees’ decision
in these circumstances turns on the Court assessing whether the Trustees’ decision was “arbitrary
and capricious” or “an abuse of discretion”, with those terms being used interchangeably. Fleisher
v. Standard. Ins. Co., 679 F. 3d 116, 121 n.2 (3d Cir. 2012). When such a standard is applied in a

case such as this, the Court does not consider matters not advanced to the Trustees. Howley v.
Mellon Fin. Corp., 625 F. 3d 788, 793 (3d Cir. 2010); University Hospitals of Cleveland v.
Emerson Electric Co., 202 F. 3d 839 (6th Cir. 2000). And in reaching its conclusions here, the
Court need not, and does not, consider the factual matters advanced by both parties outside of the
administrative record before the Trustees. Noga v. Fulton Financial Corp. Employee Benefit Plan,
et al., 19 F. 4th 264 (3d Cir. 2021) (explaining ERISA “records rule” and general exclusion of
additional evidence when the abuse of discretion standard applies).
For these purposes, the standard of review is quite deferential, but that does not mean that
it is weightless. It is one that has “teeth”. Schlear v. Carpenters Pension and Annuity Fund, 22-
1843, 2023 WL 3569971, *3 (E.D. Pa. May 18, 2023). The decision of a plan administrator is

considered to be arbitrary and capricious if it is without a rational connection between the known
facts and the decision at issue, or between the found facts and the evidence before the decision
maker. Clauss at 469 (quoting Bellaire Gen’l Hosp v. Blue Cross Blue Shield, 97 F. 3d 822, 828
(5th Cir. 1996).
Plaintiff advocates for a different standard of review than that outlined above, arguing that
where the Plan or its Trustees purports to interpret or apply positive law beyond the language of
the Plan, such as ERISA itself or its implementing Regulations, the standard of review becomes
de novo, and the record may be supplemented with new facts. Rombach attempts to do at least two
things as to and from the record in these regards.
First, he asserts that the Trustees improperly accepted as true certain statements of fact
contained in a stipulation made as part of the administrative record by counsel for the parties.
Rombach has advanced no reason for this Court to conclude that such stipulation entered into by
Rombach while represented by counsel should not be taken at face value, either by the Trustees in

their proceeding or by the Court in this action, nor why the Trustees at the appeal hearing should
not have treated the matters set out in the stipulation as proven without further evidence. No matter
the standard of review, that stipulation is properly in the record, and should and will be taken as
conclusive on the factual matters set forth in it and as stated by the Court here as having been
established. The Court concludes that the stipulation, and the facts contained in it were properly
before the Trustees and could be considered by them.
Second, Rombach argues that because the written decision of the Trustees on the appeal to
them cites to provisions of ERISA and its Regulations, (ECF No. 17-2), the standard of review for
all matters in this action becomes de novo. But this is not so. In considering the arguments of the
parties and the record before the Court, the Court concludes that, to the extent the decision at issue

actually relies on an application of positive statutory or regulatory law, Rombach is correct in that
a de novo standard of review would apply. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,
115 (1989). But a review of the Trustees’ decision, and the appeal proceedings before them,
reveals that the Trustees’ decision was based on their interpretation of the Plan itself, and to the
extent that references were made to ERISA or relevant federal Regulations, such were to buttress
or reinforce those conclusions and not as an independent evaluation of federal law, such that the
abuse of discretion standard is not displaced. See Penn v. Howe Baker Engineers, 898 F. 2d 1096,
1101 (11th Cir. 1990).
The Court will therefore apply the abuse of discretion standard in reviewing the Plan’s
decision interpreting the terms of its own Plan. In light of this approach, the Court does not believe
that factual supplementation of the record as offered up by the parties is either appropriate or
necessary.
II. Even applying the “abuse of discretion” standard, Rombach is entitled to summary
judgment in his favor.

As noted above, both parties were represented by counsel in the appeal proceedings before
the Trustees of the Plan. Among other things, counsel stipulated to certain facts. Concisely, the
question before the Court, on the basis of those stipulated facts and those found by the Trustees, is
whether the Plan’s determination that Rombach’s work for Tomko as a Senior Project Manager
during the time window at issue was work that triggered suspension of his benefits under the Plan
was proper, or more accurately, whether its decision that such work did trigger the suspension was
an “abuse of discretion”.
In answering that question, the key issues before the Plan were (1) whether Rombach was
generally entitled to begin receiving an “early pension” under the Plan’s provisions (answered
“yes”); (2) whether Rombach was working more than 40 hours a month (answered “yes”); (3)
whether that work was in the same geographic region as the work covered by the various union-
represented employees covered by the Plan (answered “yes”); (4) whether Tomko was performing
work in an industry that included plumbing and pipefitting work (answered “yes”); (5) whether
that industry was one “in which any employees covered by the Plan were employed” when

Rombach’s early pension was to begin being paid (answered “yes”); (6) whether Rombach was
employed by Tomko as a “Senior Project Manager” during the time window at issue (answered
“yes”); and (7) whether Rombach as a Senior Project Manager was employed in a “trade or craft
utilized in the industry”. Pursuant to the stipulation of facts agreed to by both parties, none of the
issues at (1) through (6) are in dispute, and the answer to each such question was properly found
to be “yes”.
The only remaining issue, then, was as to question (7), namely, whether Rombach, as a
Senior Project Manager at Tomko, was employed during the suspension time window at issue “[i]n
a trade or craft utilized in the industry” such that he would be ineligible to collect pension benefits

under the Plan while so employed, e.g. that his benefits were properly suspended. Plan Section
12.03. Upon Rombach’s administrative appeal, the Trustees determined that he was so ineligibly
employed, and that suspension of his pension benefits was proper under the Plan and was also
consistent with the benefit suspension provisions of ERISA.
The record demonstrates that the Trustees had before them a number of facts that they
could consider in determining whether Rombach was ineligible for the payment of pension benefits
during the specified time window. More importantly for the purposes of the Court’s review here,
however, is that there were a number of stipulated facts in the administrative record and available
to the Trustees that were necessarily material and found by the Trustees in their Findings, but that
they failed without explanation to explain whether or how they were considered in making their

determination. It is on the basis of that failure that the Court concludes the Trustees’ decision was
arbitrary, and therefore an abuse of discretion.
The central question before the Trustees was whether, while working as a “Senior Project
Manager”, Rombach was to have his benefits suspended because he was employed in a “trade or
craft utilized in the industry.” In evaluating that question, the Trustees made a number of findings.
First, the Trustees found that many of the daily tasks of the work of the “Senior Project
Manager” were, for all intents and purposes, essentially the same as that of a “Project Manager”,
with perhaps a few modest upgrades, and that there was not a separate written job description for
the “Senior” level role, but only one for that of the “Project Manager”. These findings are
sufficiently supported by the administrative record. At the same time, however, the Trustees also
found that the Senior Project Manager was responsible for supervising the Project Managers at
Tomko, plainly placing it at least one step above the Project Manager position. Importantly, the
Trustees did not address the latter found fact in reaching their conclusion that benefit suspension

was required by the Plan’s terms. (FF/CL No. 36).
Second, the Trustees found, and it is without dispute, that while Rombach was working as
a “Project Manager”, retirement contributions were made on his behalf to the Plan, and he retained
his Local 27 membership. (FF/CL No. 18). The reasons for this are left unexplained in the
administrative record and in the Trustees’ ultimate decision; in fact, at oral argument before this
Court, neither party could explain whether or why that position was considered covered under the
Plan’s provisions or the underlying labor contract. At the same time, however, nothing in the record
reflects that Rombach or the Plan disclaimed those contributions, that Tomko sought to get its
contributions back, or that the Plan thought it necessary to return those contributions on the basis
that they were improperly remitted for hours worked in a non-covered job classification.

Third, the Trustees specifically found that the Project Manager was “covered” by the Plan,
but that the Senior Project Manager’s position was not a Union-covered position, nor was it
covered by the Plan. (FF/CL No. 19).
Thus, from the Court’s perspective, by their conduct, all of the parties here appeared to
treat the Project Manager position as one properly covered by the Union labor agreement and the
Plan, necessitating Rombach’s Union membership and contributions to the Plan on his behalf
based on work in the Project Manager position. But it is in the failure to offer any explanation as
to why the Senior Project Manager position was nevertheless an ineligible job for the purposes of
Rombach’s Union membership and contributions to his pension by the Plan that the Plan’s
reasoning went awry.
To the extent that Rombach had Plan contributions made on his behalf while a “Project
Manager” carries any meaning, the reality that the change in his job title resulted in those
contributions stopping must logically also carry meaning. The same goes for his change in Union

membership status. For reasons not explained at all by the Trustees, when Rombach moved to the
Senior Project Manager’s position, those two very material attributes of Rombach’s employment
with Tomko changed—he was no longer a member of the Union, nor were contributions to the
Plan being made on his behalf. And that those changes were proper is demonstrated by the absence
in the record of any protest by the Plan or the Union of those two significant changes. Considering
all of the Trustees’ Findings together—that the daily tasks of the two positions were essentially
the same, that Rombach did receive contributions while employed as a Project Manager, that those
contributions were proper under the Plan, that the Senior Project Manager position supervised the
Project Managers and was neither a “Union” position nor was it covered by the Plan—coupled
with their failure to consider necessary and material facts, the ultimate decision rendered by the

Trustees was inherently arbitrary.
The Trustees’ decision to deem Rombach ineligible for the then-current payment of
retirement benefits in the Senior Project Manager’s position, both initially and upon appeal, was
devoid of consideration of those material status changes. And a Trustee’s decision regarding a Plan
member’s eligibility for pension contributions that fails to consider or address material facts in the
administrative record and actually found by the trustees is inherently arbitrary. Here is why.
While Rombach was classified as a “Project Manager,” he had contributions to the Plan
made on his behalf and for at least part of that time remained a member of Local 27. In the Court’s
judgment, it is inherent in the Trustees’ decision that such was both proper and indicative of
Rombach working in a covered “craft or trade in the industry” while he was a Project Manager.
After all, while in that position, Rombach was a Union member, and contributions to the Plan, one
covering “Union” work, were made on his behalf. And as noted above, the Trustees found that
such was a “Union” position.

But if the Trustees gave weight (as the Court concludes they necessarily did) to Rombach’s
Local 27 membership and the contributions to the Plan on Rombach’s behalf as indicating his
being employed in a covered “trade or craft”, those factors evaporated when Rombach was
elevated to the new role of Senior Project Manager and was no longer a member of the Union and
no longer received contributions towards his pension, changes that went without protest from the
Union or the Plan (or its Trustees). So, by those significant changes in Rombach’s status vis a vis
the Union and the Plan, in addition to the heightened leadership duties that Rombach took on as a
Senior Prokect Manager, all parties involved here necessarily recognized that his status relative to
the Plan and the Union, as well as his work duties, had materially changed when he was promoted
to the Senior Project Manager’s position. Otherwise, the Trustees would have been (properly)

seeking back contributions as to Rombach’s service while he was Senior Project Manager or
otherwise calling into question why Rombach was doing the “same job” as that of a Project
Manager but without Plan contributions on his behalf.
But there is no record that such occurred, or that the Plan or its Trustees considered
Rombach’s lack of Union membership, the absence of contributions to the Plan on his behalf, or
the fact that as a Senior Project Manager Rombach took on supervisory duties when they elected
to equate the Project Manager and Senior Project Manager positions for all relevant purposes. In
fact, the record reflects that the Trustees gave no weight in reaching their conclusions to their own
factual finding that the Senior Project Manager position supervised the Project Managers at
Tomko. And while there was plainly some overlap of daily duties between the prior “Project
Manager” position and the “Senior Project Manager” position, that change generated a new title
for Rombach, along with responsibility for supervising the Project Managers, and it plainly had
important new consequences—the stoppage of Plan contributions and the cessation of Union

membership. Those new consequences and responsibilities, which were set out in the
administrative record, are nowhere addressed in the Trustees’ ultimate conclusion at FF/CL 36.
These factors distinguish the situation in this case from that in Helgemo v. Operating
Engineers Local 324 Pension Fund, No. 21-2951, 2022 WL 670139 (6th Cir. March 7, 2022)
relied upon by the Defendant, a case in which there was “plenty of overlap” between pre- and post-
retirement positions, making the plan trustees upholding a suspension of benefits not an abuse of
discretion. Id. at *4. Here, there was a fundamental change in the relationship between the involved
positions and Rombach’s formal relationship with both the Union and the Plan, a change not
reflected or addressed in the Trustees’ decision. (ECF No. 17-2).
In the Court’s judgment, the Trustees’ conclusory equation of the Project Manager and

Senior Project Manager positions for purposes of the Plan’s pension benefit suspension provision
without considering and then addressing the change in the relationship between Rombach, the
Union, and the Plan when he went from being a Project Manager to being a Senior Project Manager
was arbitrary and unreasonable.
In equating the two positions, the Trustees failed to explain or even address the material
and relevant differences between them for the purposes of Rombach’s eligibility for Plan
membership. That such changes occurred is not in dispute and such was in the factual record before
and found by the Trustees, but it nevertheless appears that the Trustees simply concluded that the
two jobs, Project Manager and Senior Project Manager, were one and the same. (FF/CL No. 36).
Specifically, the Trustees found (1) that the Senior Project Manager supervised the Project
Managers at Tomko, (2) that that role had at least some greater responsibilities than those of the
Project Managers, (3) that the Project Manager position was “covered” by the Plan, and (4) that
the Senior Project Manager position was not covered by the Union or the Plan. (FF/CL Nos. 17-

20). Yet, notwithstanding those specific Findings, and without explanation, they went on to
conclude that the two positions were “identical” in responsibilities without further explanation,
and therefore Rombach’s status as Senior Project Manager mandated the suspension of the Plan
benefits for which he was otherwise eligible. (FF/CL No. 36).
In short, by concluding that the Senior Project Manager position was “work in the trade or
craft utilized in the industry” simply because the Project Manager position was such a position,
which is the inescapable import of their decision, the Trustees failed to consider that Rombach’s
position change was fundamental enough that he was at least one level above the Project Manager
position in Tomko’s operations, and that Union membership and Plan contributions had ceased
without protest or objection, and that the Senior Project Manager position carried with it those

enhanced supervisory responsibilities.
Instead of addressing the actual differences between the Project Manager and Senior
Project Manager positions that Rombach held, or explaining why one position merited Rombach’s
membership the Union and participation in the Plan while the other necessitated his suspension
from benefits under the Plan (and yet considering the two positions the “same”), the Trustees’
decision was seemingly focused on the undisputed reality that Tomko was a business in the
construction industry and one that performed plumbing and pipe fitting work. Tomko
unquestionably does work “in the industry”. But that conclusion failed to address the key question
of whether Rombach himself was employed in a “trade or craft utilized in the industry” while a
Senior Project Manager. The Trustees’ focus on the work of Tomko’s business was at best a
materially incomplete analysis and at worst one that was fundamentally incorrect.
Boiled to their essentials, the benefits suspension provisions of the Plan focus on whether
or not a retiree has come back to work in a job that is covered by the Plan, with the principle being

that if the employee has done so, pension benefits should not flow during that renewed term of
employment in a covered “trade or craft”; an employee does not get to go back to the type and
kind of job from which they retired and nonetheless keep receiving early pension benefits along
with their wages during that return engagement. See Eisenrich v. Minneapolis Retail Meat Cutters
and Food Handlers Pens. Plan, 574 F. 3d 644, 644-50 (8th Cir. 2009) (involving benefits
suspension provisions aimed at preventing “double dipping” during retirement from a covered
position while also collecting wages from reemployment in covered employment). So it was
important in considering the core issue here that the Trustees address whether the Senior Project
Manager position was actually “in a trade or craft utilized in the industry”. Simply equating the
Project Manager’s position with that of the Senior Project Manager based on little more than the

verbiage of a written job description, without taking into account that all parties involved
considered the first position a “Union” position accompanied by Plan contributions and yet did not
consider the second position (one with enhanced management duties) to be so qualifying, stopped
far short of the full analysis required of the Trustees.
In addition, that an employer generally engages in covered work, that is, that it employs
people performing work “in a trade or craft utilized in the industry” may be relevant to the
determination of the central question here, but such does not make all jobs at that employer
necessarily included within work “in a trade or craft utilized in the industry”. The approach that
the Trustees took of focusing on the work that Tomko as a business conducted, coupled with their
comparison of the written descriptions for the Project Manager and Senior Project Manager jobs,
stopped far too short, as the actual question before them was whether the employee—here,
Rombach—was so employed.
Under the broader theory that the Plan Trustees employed here, every position at Tomko,

bottom to top, would be an “occupation” that included work “in the craft or trade involved” that
triggers a suspension of benefits.As this Court posited at oral argument in this case, the Trustees’
broad interpretation of the Plan, focusing on what “Tomko the business” did as a whole, would
lead to the result that an employee moving into a top executive position from a Plan-covered
position would also be considered to be employed in a “trade or craft in the industry”. Under any
standard of review, that unreasonably gives too broad of a reading to the suspension language
within the Plan’s provisions. In adopting such theory in Rombach’s case, the Trustees acted
unreasonably, erroneously and arbitrarily.
CONCLUSION
Applying the relevant “abuse of discretion” standard of review, the Court concludes that

the bases for the Plan’s conclusion that Rombach’s work as a Senior Project Manager had him
employed “in a trade or craft utilized in the industry” was unreasonable, arbitrary, and an abuse of
discretion. The Trustees’ analysis that, because there was a substantial overlap between the stated
duties of the Project Manager and the Senior Project Manager positions and because Tomko itself
was more broadly involved in the relevant industry, Rombach’s new position required the
suspension of Plan contributions, was materially incomplete, failing to fully take into account the
work and responsibilities that Rombach was responsible for in the Senior Project Manager
position and the material status changes that occurred when Rombach became a Senior Project
Manager.
Rombach’s pension benefit suspension was therefore arbitrary and capricious,
unreasonable and an abuse of discretion. Given the record before the Trustees and now the Court,
the conclusion that Rombach was, while a Senior Project Manager, employed in a “trade or craft
utilized in the industry” was without factual support when the record is considered as a whole, and

for the Trustees to conclude otherwise was demonstrably an erroneous abuse of discretion and
arbitrary.
The Plaintiff’s Motion for Summary Judgment will be granted, and that of the Defendant
denied. The Plan shall take all steps necessary to reverse the financial and any other impact on
Rombach of the suspension during the time window at issue, including payment over of the
suspended early pension benefits, prejudgment interest, and post-judgment interest commencing
on the date of this Order, each at the statutorily applicable rate.
For the reasons set out above, Plaintiff’s Motion for Summary Judgment (ECF No. 26) is
GRANTED. Defendant’s Motion for Summary Judgment (ECF No. 23) is DENIED. Should
counsel for Plaintiff seek the award of attorney’s fees and awardable litigation costs, such petition

shall be submitted to the Court within 21 days of the date of this Opinion.
An appropriate Order will issue.

s/ Mark R. Hornak
Mark R. Hornak
Chief United States District Judge

Dated: July 26, 2024

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10668141. Public record. Not legal advice.