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NOBILE v. PENSION COMM. OF THE PENSION PLAN FOR EM

June 17, 1985

RALPH R. NOBILE, as the Executor of the Estate of ANnette Pace and PETER GERADI, Plaintiffs, against PENSION COMMITTEE OF THE PENSION PLAN FOR EMPLOYEES OF NEW ROCHELLE HOSPITAL and THE NEW ROCHELLE HOSPITAL MEDICAL CENTER, Defendants


The opinion of the court was delivered by: KNAPP

MEMORANDUM & ORDER

WHITMAN KNAPP, D. J.

 This action is brought by Ralph Nobile as Executor of the Estate of Annette Pace (the "decedent") and by Peter Geradi, the son and designated beneficiary of an interest in the decedent's pension plan. Defendants in the action are the Pension Committee of decedent's pension plan and the New Rochelle Hospital and Medical Center, decedent's former employer. The case is now before us on defendants' motion to strike plaintiffs' jury demand. For the reasons which follow we grant the motion.

 Plaintiffs' complaint alleges various statutory and common law claims for relief which arise from a single and largely undisputed set of facts. The decedent was a participant in a pension plan (the "Plan") for employees of defendant New Rochelle Hospital and Medical Center. As a vested plan participant she was entitled, on retirement, to certain income. Unless a plan participant elected an option, the retirement income was payable in the form of a Retirement pension (single life annuity) under which no death benefits were available. A participant could, however, pursuant to § 12.3 of the Plan, elect a Life Pension With Ten-year Certain Option (the "Option"). Under the Option, an actuarially reduced pension is paid to the participant for life with the provision that if the participant dies before 120 monthly payments have been made, the reduced monthly pension payments are continued to the participant's designated beneficiary until all 120 payments have been completed. under the current Plan, which became effective in 1981, the election of the Option is valid only *fn1" if the participant continues to live for 180 days after the date on which the election is filed with the Pension Committee. under the prior 1975 plan, the Option was valid only if the participant elected at least 2 years before the Norma. Retirment [Retirement] Age, *fn2" or submitted proof of good health.

 On January 6, 1982, the decedent became aware that she was suffering from terminal cancer. In early February she was admitted to the hospital at which she was employed and underwent surgery, followed by chemotherapy and radiation treatments which lasted through January of 1983.

 Plaintiffs allege that in late July, 1982, some four months after her operation, the Benefits Manager at the Hospital undertook to counsel decedent regarding her Plan benefits. Although defendants deny plaintiff's characterization of the meeting, they concede that a meeting took place between the Benefits Manager and decedent, and that the Benefits Manager did not inform decedent that on retirement she could choose between a monthly lifetime annuity or the Ten-Year Certain Option, nor that if she elected the Option it would be valid only if she lived for 180 days after such election. Decedent did not make an election at that time and continued working until her retirement on January 1, 1983.

 Sometime in early January, 1983 decedent again met with the Benefits Manager. On January 13 she elected the Option and designated her son Peter Geradi as her beneficiary. Thirty-nine days later she died.

 After decedent died, defendants advised her son that they considered decedent's Option election null and void because she had died before the 180th day of the waiting period prescribed by the Plan. After exhausting the claim procedures enunciated by the Plan itself, plaintiffs filed the instant action in which they allege five claims: The first two claims, brought under ERISA, 29 U.S.C. § 1001 et seq., allege that both defendants, the Pension Committee of the Pension Plan for Employees of the New Rochelle Hospital (the "Pension Committee") and the New Rochelle Hospital and Medical Center (the "Hospital"), breached their duty of disclosure by not furnishing to the decedent a copy of the 1981 Plan Summary (29 U.S.C. §§ 1021, 1022, 10249b)), and their fiduciary duty, pursuant to 29 U.S.C. § 1104, by failing to provide the decedent with the information necessary to make a reasoned decision regarding benefits. The third and fourth claims, brought only against the defendant Hospital, allege a common law breach of fiduciary duty and a breach of the common law of trusts. The fifth claim, against both defendants, alleges an arbitrary and capricious denial of benefits. For relief, plaintiffs request the 120 monthly payments (less any monies already received), with interest and punitive damages.

 DISCUSSION

 Whether plaintiff is entitled to a jury under ERISA, 29 U.S.C. § 1001 et seq., is not at all clear. We considered, but did not decide, the question in Sixty-Five Security plan v. Blue Cross and Blue Shield (S.D.N.Y. 1984) 583 F. Supp. 380, 389. We there indicated dictum that a plaintiff in an ERISA enforcement action might be so entitled. We relied on the reasoning in Pollock v. Castrovinci (S.D.N.Y. 1979) 476 F. Supp. 606. that case, although affirmed without opinion, 622 F.2d 575, has since been strongly questioned by the Court of Appeals. See Katsaros v. Cody 2d Cir. 1984) 744 F.2d 270, 278-79, cert. denied, 469 U.S. 1072, 105 S. Ct. 565, 83 L. Ed. 2d 506. Several circuits have already confronted the issue and have definitively ruled that ERISA provides no right to a jury. In Re Vorpahl (8th Cir. 1982) 695 F.2d 318, 320-22; Calamia v. Spivey (5th Cir. 1980) 632 F.2d 1235, 1237; Wardle v. Central States, Southeast & Southwest Areas pension Fund (7th Cir. 1980) 627 F.2d 820, 829-830, cert. denied, 449 U.S. 1112, 101 S. Ct. 922, 66 L. Ed. 2d 841. See also Rubin v. Decision Concepts, Inc. (S.D.N.Y.. 1983) 566 F. Supp. 1057; Note, "The Right to Jury Trials in Enforcement Actions under Section 502(a)(1)(B) of ERISA," 96 Harv. L.Rev. 737, 738 (1983). On reconsidering the question we find the reasoning of these latter authorities persuasive. As the court in Wardle, after analyzing the legislative history of ERISA stated (6217 F.2d at 829):

 
We conclude that Congress' silence on the jury right issue reflects an intention that suit for pension benefits by disappointed applicationsre equitable. Such suits under the law of trusts have existed for quite a while in state courts had have been en- tertained in federal courts under their diversity jurisdiction. These suits have been considered equitable in character. This conclusion has been based primarily on the law of trusts, which provides a beneficiary with a legal remedy only with respect to money the trustee is under a duty to pay unconditionally and immediately to the beneficiary. Restatement (Second) of Trusts §§ 197-198 (1959). Thus the most reasonable interpretation is that Congress intended to provide general federal jurisdiction over equitable suits that had traditionally been brought in the state courts. (Footnotes and citations omitted.)

 We therefore conclude that plaintiff is not entitled to a jury on the ERISA claims alleged in the first two counts of her complaint.

 We now turn to whether plaintiffs are entitled to a jury on their state law claims -- claims of breach of fiduciary duty, breach of the common law of trusts, and arbitrary denial of benefits. To make such a determination we must examine the nature of the claims and the relief sought. See Ross v. Bernhard (1970) 396 U.S. 531, 24 L. Ed. 2d 729, 90 S. Ct. 733 . A claim entitled s litigant to a jury trial only if it "involves rights and remedies of the sort traditionally enforced in an action at law, rather than in an action in equity or admiralty." Pernell v. Southall Realty (1974) 416 U.S. 363, 375, 40 L. Ed. 2d 198, 94 S. Ct. 1723 .

 At the outset we note that the reasoning quoted from the Wardle, supra -- denying a jury in an ERISA enforcement action because juries are not available in action s asserting comparable state claims -- would seem to indicate a similar result for the state claims here involved. *fn3" There exist, however, several cases -- not controlling upon us -- that seem to suggest an opposite result. Jefferson national Bank v. Central national Bank of Chicago (7th Cir. 1983) 700 F.2d 1143; Dixon v. Northwestern national Bank (D. Minn. 1969) 297 F. Supp. 485. Those cases proceed on the assumption that a jury should be afforded where the sole remedy sought by the plaintiff is the payment of money, regardless of whether or not equitable considerations give rise to the defendant's duty to make such ...


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