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DENZER v. PUROFIED DOWN PRODS. CORP. PROFIT-SHARIN

July 18, 1979

James Denzer, Plaintiff,
v.
Purofied Down Products Corp. Profit-Sharing and Retirement Plan et al., Defendants.



The opinion of the court was delivered by: KNAPP

MEMORANDUM AND ORDER

The plaintiff, James Denzer, brought this action under the Employment Retirement Income Security Act of 1974, 29 U.S.C. § 1001 Et seq. ("ERISA") to recover pension benefits. The defendants, Purofied Down Corp. ("Purofied"), the Purofied Down Corp. Profit-Sharing and Retirement Plan (the "Plan") and Bankers Trust Co. (the "Trustee"), move under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted. The defendants' motion is supported in part by matters outside the pleadings; thus we must treat it as a motion for summary judgment. Fed.R.Civ.P. 12(b). Under such a motion, we have the power to grant summary judgment for a non-moving party. Morrissey v. Curran (2d Cir.) 423 F.2d 393, 399, Cert. denied, (1970) 400 U.S. 826, 91 S. Ct. 52, 27 L. Ed. 2d 56.

 We deny defendants' motion. In addition, we find that the plaintiff is entitled to summary judgment in his favor. We will enter a judgment for the plaintiff unless within twenty days the defendants submit papers persuading us that such action would be unwarranted or inappropriate.

 Unless otherwise indicated, the following material facts are undisputed: In 1962, the plaintiff began working for Purofied. One of the benefits which accrued to the plaintiff upon entering Purofied's employ was membership in the Plan. Article VII, § 1(1) of the Plan provided that:

 
"In the event of a discharge or resignation, without cause . . ., prior to retirement, of a member who has been continuously a member for a period of four or more years ( *fn1" ) such member shall be entitled to a severance benefit . . . . The severance benefit of a discharged . . . member shall be a percentage of the amount standing to the credit of such member in his account on the effective date of such discharge or resignation as determined below: . . . Ten or more years of membership in the Plan 100%."
 
Article IV, § 1(a) of the Plan provided that "(n)o amendment shall operate to deprive a Member of any rights or benefits vested in him under the Plan prior to such amendment."
 
On January 13, 1978, the plaintiff's employment with Purofied was terminated without cause. At that time the plaintiff was forty-three years of age and had accumulated $ 18,957 in benefits under the Plan. After leaving Purofied, the plaintiff demanded immediate payment of these benefits under Art. VIII, § 1(1) of the Plan.
 
Purofied refused to pay, contending that an amended Plan had recently been adopted which allowed Purofied to delay payment of the plaintiff's benefits until he reached the age of sixty-five. The amended Plan had been adopted on July 13, 1978, with a provision that it would be retroactively effective as of September 1, 1976. Section 8.1(a) of the amended Plan provided that:
 
"(A) Distribution to a Participant of the nonforfeitable portion of his Account shall commence not later than the sixtieth (60th) day after the close of the Plan Year in which the later of the following events occur:
 
(1) the Participant's Normal Retirement Date, or
 
(2) the termination of the Participant's employment with all Controlled Companies."
 
Section 1.23 of the amended Plan defined "Normal Retirement Date" as "the later of (A) the 65th anniversary of the Participant's birth; or (B) the tenth anniversary of participation under the Plan or, if earlier, under the Prior Plan . . . ."
 
Having failed to obtain benefits upon demand, the plaintiff brought this action under ERISA, 29 U.S.C. § 1132(a)(1)(B), to obtain immediate payment of benefits. In this action, the plaintiff claims benefits under three theories. First, he contends that he is entitled to benefits under the terms of ERISA. Second, he argues that benefits were awarded to other similarly situated Plan members, and that the Trustee acted arbitrarily and capriciously in denying his claim for immediate benefits. Third, the plaintiff argues that the amended Plan cannot be applied retroactively to deprive him of a right which vested in him under the old Plan, I. e., the right to receive benefits upon termination of employment without cause.
 
The plaintiff's first argument is based upon a novel reading of § 206(a) of ERISA, 29 U.S.C. § 1056(a). That ...

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