Askew v. R.L. Reppert, Inc.
| Decision Date | 05 February 2016 |
| Docket Number | Civil Action No. 11-cv-04003 |
| Court | U.S. District Court — Eastern District of Pennsylvania |
| Parties | DERRICK ASKEW, Plaintiff v. R.L. REPPERT, INC.; RICHARD L. REPPERT; R.L. REPPERT, INC. EMPLOYEES PROFIT SHARING 401(k) PLAN; and R.L. REPPERT, INC. MONEY PURCHASE PLAN (DAVIS BACON PLAN), Defendants R.L. REPPERT, INC.; RICHARD L. REPPERT; R.L. REPPERT, INC. EMPLOYEES PROFIT SHARING 401(k) PLAN; and R.L. REPPERT, INC. MONEY PURCHASE PLAN (DAVIS BACON PLAN), Third-Party Plaintiffs v. CALIFORNIA PENSION ADMINISTRATORS & CONSULTANTS, INC., Third-Party Defendants |
APPEARANCES:
JAMES E. GOODLEY, ESQUIRE
MARC L. GELMAN, ESQUIRE
On behalf of Plaintiff
ROBERT J. KRANDEL, ESQUIRE
On behalf of Defendants and
Third-Party Plaintiffs
DANIEL S. STRICK, ESQUIRE
On behalf of Third-Party Defendant
TABLE OF CONTENTS
Page
Count Five: Prohibited Transaction - ERISA ............. 60
Count Six: Benefits Declaration ........................ 61
Legal Fees .............................................. 69
CONCLUSION ................................................... 70
OPINIONJAMES KNOLL GARDNER United States District Judge
Plaintiff Derrick Askew brings this suit against his former employer R.L. Reppert, Inc. ("Reppert, Inc."); Richard L. Reppert; R.L. Reppert, Inc. Employees Profit Sharing 401(k) Plan; and R.L. Reppert, Inc. Money Purchase Plan (Davis Bacon Plan) for a number of alleged violations of the Employee Retirement Income Security Act of 1974 ("ERISA")1.
For the reasons expressed below, I grant in part, and deny in part, plaintiff's motion for partial summary judgment and dismissal. I also grant in part, and deny in part, defendants' and third party plaintiffs' motion for summary judgment.
This matter is before the court on Plaintiff's Motion for Partial Summary Judgment (Counts I, IV - Reppert Pension Plans) and Dismissal (Reppert Health Plans) (Document 73) and Defendants and Third Party Plaintiffs R.L. Reppert, Inc., et al.'s Motion for Summary Judgment Against Plaintiff Derrick Askew (Document 90).
Plaintiff filed his motion for partial summary judgment on April 10, 2015 together with a memorandum of law in support and exhibits. Defendants filed their Response to Motion for Partial Summary Judgment with exhibits on April 24, 2015 (Document 78). Plaintiffs' [sic] Reply Memorandum of Law in Support of Plaintiff's Motion for Partial Summary Judgment and Dismissal was filed on June 19, 2015 (Document 87).
Defendants filed their motion for summary judgment on July 31, 2015, together with a memorandum of law in support and exhibits. Plaintiff's Response to Defendant Reppert's Motion for Summary Judgment was filed August 14, 2015 (Document 92).
Oral argument was conducted on both motions for summary judgment on September 22, 2015, at which time the matter was taken under advisement. Hence this Opinion.
For the following reasons, plaintiff's motion for partial summary judgment and dismissal is granted in part on Count One of his Class Action Complaint because I conclude that defendant Reppert, Inc. failed to produce any required documents pertaining to the 401(k) Plan within thirty days of plaintiff's written request and because defendant failed to produce a custodial agreement with Nationwide Trust Company, FSB.
Plaintiff's motion is denied in part on Count One, because I find that (1) defendant Reppert, Inc. was notobligated to produce any documents regarding the Davis Bacon Plan; (2) defendant Reppert, Inc. fulfilled any document production obligations it had with respect to trust agreements, periodic benefits statements, notice of vested deferred benefits, disclosure of financial reports, Section 404(c) disclosures, notice of qualified default investment, notice of availability of investment advice, and depository documents for the 401(k) Plan;2 (3) plaintiff has not provided sufficient evidence to demonstrate entitlement to any custodial agreements other than the Nationwide Trust Company agreement; and (4) there are genuine disputes of material fact relating to what, if any, penalties should be imposed on defendant for such failure.
Plaintiff's motion for partial summary judgment and dismissal is denied on Count Four because defendants Reppert, Inc. and Richard L. Reppert had no obligation under ERISA to engage a certified public accountant to conduct any audits of the Davis Bacon Plan and because there are genuine disputes of material fact as to whether defendants were required by ERISA to do so for the 401(k) Plan.
Defendants' and third party plaintiffs' motion for summary judgment is granted in part, regarding the Davis Bacon Plan, on Counts One and Four because I find that the Davis BaconPlan was defunct and nonexistent after 2001. Defendants' motion is also granted in part regarding trust agreements, periodic benefits statements, notice of vested deferred benefits, disclosure of financial reports, Section 404(c) disclosures, notice of qualified default investment, notice of availability of investment advice and depository documents for the 401(k) Plan because I conclude that defendant Reppert, Inc. fulfilled any document production obligations it had regarding those documents.
Defendants' motion is denied on that part of Count One on which I granted plaintiff's motion for partial summary judgment and for the same reasons. Defendants' motion is also denied on that part of Count One regarding the other custodial agreements other than the Nationwide Trust Company agreement because plaintiff has raised a genuine issue of material fact regarding whether those other custodial agreements are, like the Nationwide Trust Company agreement, documents which defendant Reppert, Inc. is obligated to produce.
Defendants' motion is denied on Count Four because there are genuine disputes of material fact regarding whether defendants were required by ERISA and failed to conduct audits of the 401(k) Plan.
Finally, defendants' motion is granted regarding Count Two because plaintiff is not entitled to any outstandingplan documents. Defendants' motion is also granted regarding Counts Three, Five and Six, because plaintiff can produce no competent evidence which would permit a rational trier of fact to find in plaintiff's favor on those counts.
Jurisdiction is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiff brings claims under 29 U.S.C. §§ 1024, 1132 and various other provisions of ERISA.
Venue is proper pursuant to 28 U.S.C. § 1391(b) because defendants reside in, and a substantial part of the events giving rise to this action occurred in, Emmaus, Lehigh County, Pennsylvania, which is located within this judicial district.
On June 17, 2011 Plaintiff filed a six-count Class Action Complaint3. Count One alleges violations of ERISA document production requirements under, among others, 29 U.S.C. § 1024(b)(4) and seeks statutory penalties pursuant to 29 U.S.C. § 1132(c)(2) against Reppert, Inc. as plan administrator.
Count Two avers the same violations as Count One and seeks injunctive relief to compel defendants Reppert, Inc. and Richard L. Reppert to satisfy their statutory document production obligations under ERISA.
Count Three asserts that defendants Reppert, Inc. and Richard L. Reppert failed to establish a trust in violation of 29 U.S.C. § 1103.
Count Four alleges that defendants Reppert, Inc. and Mr. Reppert breached their fiduciary duties in violation of 29 U.S.C. § 1104.
Count Five avers that defendants Reppert, Inc. and Mr. Reppert conducted prohibited transactions in violation of 29 U.S.C. § 1106.
Finally, Count Six alleges that defendants denied benefits owed to plaintiff and seeks a declaration of benefits.
On September 15, 2011 defendants filed a Third Party Complaint against California Pension Administrators & Consultants, Inc. ("CalPac"), seeking to hold it liable for contribution and indemnity to the extent that the defendants themselves were found liable to plaintiff.
On November 14, 2011 CalPac filed a motion to dismiss the Third Party Complaint. On September 28, 2012 I granted that...
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