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Pantry Pride Inc. v. Retail Clerks Tri-State Pension Fund

October 31, 1984

PANTRY PRIDE, INC. AND PANTRY PRIDE ENTERPRISES, INC., APPELLEES
v.
RETAIL CLERKS TRI-STATE PENSION FUND, NORMAN L. TYRIE, ROBERT CARMAN, JOHN C. BRENNAN, WILLIAM CAMPBELL, ANGELO J. LAGANO, SAMUEL ROCCO, WILLIAM STEBBINS, WENDELL W. YOUNG, III, ROLAND COLEMAN, JOHN DAILEY, EDWARD FAGEN, JOSEPH E. LAIR, J. FRED MAURER, JAMES VARIAN, RONALD ROSMINI AND JOHN BOGAN, APPELLANTS



Appeal from the United States District Court for the Eastern District of Pennsylvania

Author: Seitz

Before: SEITZ, GIBBONS and HUNTER, Circuit Judges OPINION OF THE COURT

SEITZ, Circuit Judge.

I.

The Retail Clerks Tri-State Pension Fund and its trustees, defendants in this declaratory judgment action, appeal from an order of the district court denying, in part, their motion for interim employer's withdrawal liability payments demanded under the Multiemployer Pension Plan Amendments Act (the "MPPAA"), 29 U.S.C. §§ 1399(c)(2), 1401(d) (1982). Jurisdiction of this appeal is asserted under 28 U.S.C. 1292(a)(1).

II. FACTS

Food Fair, Inc., the plaintiff's predecessor, operated a chain of grocery stores in Pennsylvania, New Jersey, and Delaware. Beginning in 1959, Food Fair, pursuant to its collective bargaining agreements, began contributing to the Retail Clerks Tri-State Pension Fund (the "Fund"). In 1979, as part of a bankruptcy reorganization, the 101 stores in Pennsylvania and New Jersey were closed. This left, in the geographic area covered by the Fund, only the 5 Delaware stores. In 1981, those 5 stores were also closed.

Upon the closing of the Delaware stores, the Fund determined that Pantry Pride Enterprises, Inc. ("Pantry Pride"), Food Fair's successor in interest, had withdrawn from the pension plan and was liable to the Fund under the MPPAA for its share of the Fund's total unfunded vested benefits. 29 U.S.C. § 1381 (1982). The Fund calculated Pantry Pride's share to be $20,935,000, payable in 79 monthly installments of $326,379.16 and a final payment of $107,972.06. Pursuant to 29 U.S.C. § 1399(b)(1), the Fund demanded that Pantry Pride pay the withdrawal liability.

Pantry Pride brought this action in the district court for a declaratory judgment that the MPPAA was unconstitutional. Although the Act requires arbitration of disputes arising over withdrawal liability, the district court, upon motion by Pantry Pride, stayed arbitration pending the resolution of the constitutional challenge in accordance with this Court's decision in Republic Industries v. Central Pennsylvania Teamsters Pension Fund, 693 F.2d 290 (3d Cir. 1982).

The Fund then filed a motion with the district court asking, inter alia, that Pantry Pride be required to pay the withdrawal liability to the Fund during the pendency of the litigation in accordance with the previously calculated schedule. The district court denied this motion in part, limiting the payments required to $15,000 per month. The Fund appeals from this order.

III. APPEALABILITY

Pantry Pride contends that the order of the district court was not appealable as either a final decision under 28 U.S.C. § 1291, or as an interlocutory order under 28 U.S.C. § 1291(a)(1).*fn1

An interlocutory order "granting, continuing, modifying, refusing, or dissolving injunctions" is appealable under 28 U.S.C. § 1292(a)(1). In determining whether an order is appealable as an order refusing an injunction, there are two requirements. First, the order must have the effect of refusing an injunction. Carson v. American Brands, Inc., 450 U.S. 79, 84, 67 L. Ed. 2d 59, 101 S. Ct. 993 (1981). Second, the appeal must "further the statutory purpose of "permit[ting] litigants to effectively challenge interlocutory orders of serious, perhaps irreparable consequences." Id. (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 99 L. Ed. 233, 75 S. Ct. 249 (1955)).

The district court's order refused, in part, the Fund's motion for an injunction to compel the interim payment of withdrawal liability. Although the language of the Fund's motion did not use the word "injunction," this court must look to the substance of the request, rather than rely on its language in determining whether an order is an appealable denial of an injunction.*fn3 Cf. Ettelson v. Metropolitan Life Insurance Co., 317 U.S. 188, 192, 87 L. Ed. 176, 63 S. Ct. 163 (1942) (interpreting a predecessor to 28 U.S.C. § 1292(a)(1)). In this case, the Fund requested, inter alia, that the ...


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