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Vernau v. Vic's Market

filed: February 14, 1990.

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. 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, APPELLANTS



On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil Action No. 88-01917.

Higginbotham, Chief Judge*fn* , Stapleton and Scirica, Circuit Judges.

Author: Scirica

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*fn1 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*fn2 under Sections 502(a)(3), 502(e), 502(f) and 515 of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1132(a)(3), (e), (f), and 1145 (1982), and under Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 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, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (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.C.S.A. § 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.*fn3 Because the contracts in question terminated in July 1984 ...


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