Vernau v. Vic's Market, Inc.

• Decision Date: 12 March 1990
• Docket Number: No. 89-3279,89-3279
• Citation: 896 F.2d 43
• Parties: 114 Lab.Cas. P 11,923 Charles E. VERNAU, Sr. and Carl C. Huber, on behalf of themselves as Trustees and the other Trustees of the UFCW, Local 23 and Employers Health Fund, UFCW, Local 23 and Employers Legal Fund and UFCW, Local 23 and Employers Pension Fund v. VIC'S MARKET, INC. Appeal of Charles E. VERNAU, Sr. and Carl C. Huber, on behalf of themselves as Trustees and the other Trustees of the UFCW, Local 23 and Employers Health Fund, UFCW, Local 23 and Employers Legal Fund, and UFCW, Local 23 and Employers Pension Fund.
• Court: U.S. Court of Appeals — Third Circuit

Page 43

896 F.2d 43

114 Lab.Cas. P 11,923

Charles E. VERNAU, Sr. and Carl C. Huber, on behalf of themselves as Trustees and the other Trustees of the UFCW, Local 23 and Employers Health Fund, UFCW, Local 23 and Employers Legal Fund and UFCW, Local 23 and Employers Pension Fund v. VIC'S MARKET, INC.

Appeal of Charles E. VERNAU, Sr. and Carl C. Huber, on

behalf of themselves as Trustees and the other Trustees of

the UFCW, Local 23 and Employers Health Fund, UFCW, Local 23

and Employers Legal Fund, and UFCW, Local 23 and Employers

Pension Fund.

No. 89-3279.

United States Court of Appeals, Third Circuit.

Argued Sept. 26, 1989.

Decided Feb. 14, 1990.

Rehearing and Rehearing In Banc Denied March 12, 1990.

Joseph A. Vater, Jr. (argued), Meyer, Unkovic and Scott, Pittsburgh, Pa., for appellants.

Daniel W. Cooper (argued), Cooper and Lepore, Pittsburgh, Pa., for appellee.

Before HIGGINBOTHAM, Chief Judge ^*, and STAPLETON and SCIRICA, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This is an appeal from a grant of summary judgment in an action brought under the Employee Retirement Income Security Act and the Labor Management Relations Act. The district court held that the statute of limitations barred the claim and was not tolled because plaintiff failed to exercise reasonable diligence in discovering the claim. We will affirm.

I.

Defendant Vic's Market ("Vic's") owns and operates two grocery stores. In 1981, Vic's entered into a three-year collective bargaining agreement ¹ with United Food and Commercial Workers Union Local 1407 (now Local 23). The collective bargaining agreement provided that Vic's would make payments to health, legal, and pension benefit trust funds on behalf of Vic's employees, other than "customer service employees," also known as baggers. Under Article 29 of the collective bargaining agreement, baggers, whose permissible duties were limited, could not constitute more than ten percent of Vic's workforce.

Plaintiff Trustees sued Vic's on August 25, 1988, claiming that Vic's owed past-due benefit payments because it breached the agreement's ten-percent ceiling. Monthly figures supplied to the Trustees by Vic's clearly showed that the ten-percent ceiling was exceeded, often substantially, in 29 of the 31 months at issue. For example, in November 1982, the Vic's-supplied figures showed that Vic's was employing almost four times as many baggers as was permitted by Article 29. Also, in 1987, an audit by the Trustees discovered monthly underreporting of baggers. Indeed, for December 1983, the Vic's-supplied figures showed that 14.3% of its employees were baggers, but the audit fixed the figure at 53%. The Trustees maintain the remedy for these breaches of Article 29 is that for benefit-fund contribution purposes, any baggers over the ten-percent cap should be treated as if they had been benefit-eligible regular employees. The Trustees sued for these contributions ² under Sections 502(a)(3), 502(e), 502(f) and 515 of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. Secs. 1132(a)(3), (e), (f), and 1145 (1982), and under Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. Sec. 185 (1982).

Vic's claims the suit is barred by the three-year statute of limitations. The Trustees contend that the statute was tolled. The Trustees maintain that their agents who were monitoring trust fund payments were ignorant of the ten-percent limitation in the collective bargaining agreement and therefore failed to notice that the monthly figures supplied by Vic's plainly showed the ceiling was routinely and substantially exceeded. In addition, the Trustees argue even if their agents had known of Article 29, they would not, with reasonable diligence, have detected the employees not reported by Vic's.

Vic's responds that the Trustees' failure to inquire further when Vic's monthly contributions forms on their face showed continuing more than de minimis breaches of Article 29, and the Trustees' failure to inform their agents who monitored trust fund contributions of the terms of the contract, constitute an unreasonable lack of diligence. With reasonable diligence, according to Vic's, the Trustees would have seen the continuing breach, and would have investigated and acted upon it and on any underreporting revealed by an investigation. Vic's argues that under Pennsylvania tolling principles, the statute cannot be tolled when plaintiff has failed to use reasonable diligence which would have revealed the existence of a cause of action.

Our review is plenary of the district court's interpretation of the applicable tolling principles and of its conclusion, based on the undisputed facts in the record, that the circumstances did not give rise to a tolling of the statute of limitations.

II.

We must first determine the proper statute of limitations. ERISA contains no applicable statute of limitations. Trustees for Alaska Laborers v. Ferrell, 812 F.2d 512, 516 (9th Cir.1987). When ERISA lacks an applicable limitations statute, the courts are obliged to apply the most analogous state statute of limitations. Connors v. Consolidation Coal Co., 866 F.2d 599, 603 (3d Cir.1989) (citing DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 158-60, 103 S.Ct. 2281, 2287-89, 76 L.Ed.2d 476 (1983)). Similarly, because the LMRA lacks an explicit limitations period for this type of action reference to the most analogous state statute of limitations is appropriate. Byrnes v. DeBolt Transfer, Inc., 741 F.2d 620, 625 (3d Cir.1984).

In Teamsters Pension Trust Fund v. John Tinney Delivery Service, Inc., 732 F.2d 319, 322 (3d Cir.1984), a case brought in Pennsylvania to recover unpaid benefits under the LMRA, we applied the three-year statute of limitations period in Pennsylvania's Wage Payment and Collection Law, 43 Pa.S.A. Sec. 260.9a(g) (Purdon Supp.1989) as the most analogous state statute. Because the action is essentially the same under the LMRA and ERISA, we will apply Tinney to ERISA. ³ Because the contracts in question terminated in July 1984 and the action was brought in August 1988, the Trustees' action is barred by the statute of limitations, unless its running is tolled.

III.

In Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-64, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295 (1975), the Court held that state tolling principles are generally to be used by a federal court when it is applying a state limitations period

Any period of limitation ... is understood fully only in the context of the various circumstances that suspend it from running against a particular cause of action.... In borrowing a state period of limitation for application to a federal cause of action, a federal court is relying on the State's wisdom in setting a limit, and exceptions thereto, on the prosecution of a closely analogous claim.

Id. at 463-64, 95 S.Ct. at 1722. The Court explained, however, that the rule need not be followed when state tolling principles are not consistent with underlying federal policy:

Although state law is our primary guide in this area, it is not, to be sure, our exclusive guide.... [C]onsiderations of state law may be displaced where their application would be inconsistent with the federal policy underlying the cause of action under consideration.

Id. at 465, 95 S.Ct. at 1722.

Under Pennsylvania tolling principles, the statute is tolled until "plaintiffs knew or using reasonable diligence should have known of the claim." Urland v. Merrell-Dow Pharmaceuticals, Inc., ⁴ 822 F.2d 1268, 1272 (3d Cir.1987). "[T]he Supreme Court of [Pennsylvania] views tolling of the statute of limitations in terms of the 'knew or should have known' standard whether the statute is tolled because of the discovery rule or because of fraudulent concealment." Id. at 1273. Reasonable diligence has been defined as follows: "There are very few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful. This is what is meant by reasonable diligence." Ibid. (quoting from Deemer v. Weaver, 324 Pa. 85, 90, 187 A. 215, 217 (1936)). Knowledge of the claim also has been defined: "plaintiffs need not know that they have a cause of action or that the injury was caused by another party's wrongful conduct," id. at 1275, for " 'once [a plaintiff] possesses the salient facts concerning the occurrence of his injury and who or what caused it, he has the ability to investigate and pursue his claim,' " ibid. (quoting Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 44, 482 A.2d 1067, 1071 (1984) (emphasis in original)).

Thus, under Pennsylvania's tolling principles, the Trustees need only meet the standard of reasonable diligence in order for the statute to be tolled. These tolling principles are not inconsistent with federal law. Cf. Byrnes v. DeBolt Transfer, Inc., 741 F.2d 620 (3d Cir.1984). ⁵

IV.

It is undisputed that month after month, for over two years, Vic's supplied the Trustees with figures showing the number of baggers and total employment at Vic's two markets. Because the ceiling on baggers was ten percent, the Trustees needed only to move the decimal point in the total employment number and compare the resulting number to the number of baggers reported. ⁶ Had the Trustees done so, they would have known instantly that Vic's was in continuing more than de minimis breach of contract. A reasonably diligent agent for the Trustees would perform such an easy calculation. Furthermore, the records show that the Trustees did not simply receive and file Vic's monthly reports. Affidavits submitted by the Trustees state that their agents frequently revised the reported figures, based on information from the union or elsewhere, in order to make corrections (see, e.g., A-291a).

The Trustees' argument that the simple calculation was not performed because they had not informed their agents about Article 29 cannot...