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June 19, 1992

JOHN A. CAMARDO, SR., Plaintiff,


The opinion of the court was delivered by: CAROL E. HECKMAN

This matter was referred to the undersigned by the Hon. Richard J. Arcara pursuant to 28 U.S.C. § 636(b)(1)(B) to hear and report on all dispositive motions. Presently before the court are Defendant's motions to dismiss pursuant to Fed.R.Civ.P. 12 and 19 and/or for summary judgment pursuant to Fed.R Civ.P. 56. The following constitutes the undersigned's proposed findings and recommendations for the disposition of said motions.


 Plaintiff John A. Camardo ("Plaintiff"), born April 18, 1935, was employed by General Motors Corporation ("GMC") at its Tonawanda plant from October, 1961, through July 11, 1983, when he suffered a back injury on the job. Plaintiff alleges that he tried to go back to work on July 15, 1983, but claims his leg "buckled and gave way" on his way into the plant (Plaintiff's Memorandum of Law, Item 18, p.2). Plaintiff returned home, and has not worked since. He has received medical treatment from several physicians for both physical and mental injuries.

 Plaintiff received disability benefits under GMC's disability plan from July 12, 1983 through December 1, 1983. In response to GMC's request, Plaintiff underwent a company physical on December 6, 1983, and was told by the company doctor that he could return to work the next day, with a 25 lb. weight restriction. At that time he was also handed a written "Return to Work Notice" containing the same directions and information. He claims that severe back and leg pains prevented him from returning to work on December 7, 1983 and, in fact, caused him to be placed into traction for approximately two weeks. Item 18, p. 2.

 In August, 1984, Plaintiff received an award of Social Security disability benefits based on the Social Security Administration ("SSA")'s determination that he was totally disabled from gainful employment as of July 11, 1983. Plaintiff has also been receiving New York State Workers' Compensation benefits from July 12, 1983 to present.

 In his complaint, filed October 15, 1987 (Item 1), Plaintiff seeks a judgment directing Defendant General Motors Hourly-Rate Employees Pension Plan ("Defendant" or the "Plan") to provide him disability pension benefits, pursuant to the requirements of § 502 of ERISA, 29 U.S.C. § 1132. The Plan provides for a disability pension for GMC employees who become totally and permanently disabled prior to attaining age 65 with at least 10 years of credited service (a copy of the Plan is attached as Exh. A to Plaintiff's Affidavit, Item 17). Plaintiff alleges that upon his receipt of the favorable decision from the SSA, he contacted GMC regarding application for disability pension benefits and was advised by an unidentified GMC personnel department employee that he was not entitled to such benefits because his employment with GMC had terminated his employment as of December 12, 1983. See Item 17, Par. 15.

 Plaintiff's attorney wrote the Plan Administrator on October 11, 1984, to request application forms on Plaintiff's behalf (Item 17, Exh. H), and received a response dated October 18, 1984 from Mrs. Ida Law, GMC's Employee Benefits Supervisor, which denied his request for pension application forms, explaining that Plaintiff was ineligible since his employment record showed that he was released as a "voluntary quite as of December 12, 1983 and therefore was not an "employe" [sic] within the meaning of the Plan. Item 17, Exh. I. Plaintiff's attorney wrote back on February 12, 1985, requesting an appeal from the ineligibility determination and advising the supervisor that it was "difficult to determine how [Plaintiff] could 'voluntarily quit' at a time when he was totally and permanently disabled." Item 17, Exh. J. Plaintiff claims that there was no response to this appeal, and none appears in the record. By letter dated December 8, 1986, Plaintiff renewed his request for application forms and information about the appeal process. Item 17, Exh. K. Again, Plaintiff claims there was no response.


 GMC, as Defendant, moves for summary judgment dismissing the complaint on the grounds that: (1) Plaintiff was not a GMC employee within the meaning of the Plan since he refused to comply with the "Return to Work Notice" delivered to him on December 6, 1983, which required him to report to work within 3 days, and Plaintiff therefore became a "voluntary quit" having "broke seniority" under § 111(b) of the Collective Bargaining Agreement between GMC and the United Automobile, Aerospace and Agricultural Implement Workers of America ("UAW") (the "National Agreement") (see Exhibits of Defendant GMC, Item 11(a), Exh. 1, pp. 83-84); (2) Plaintiff failed to exhaust his three-fold administrative remedies as provided in the National Agreement (id., pp. 26-43 (Grievance Procedures)), including his GMC contractual remedies, intra-Union remedies, or intra-Plan remedies; (3) Plaintiff has failed to join GMC, UAW, the GMC-UAW Joint Board of Plan Administration, and Metropolitan Life (the Plan's 2hunderwriter) as indispensable Parties pursuant to Fed.R.Civ.P. 19(b), and has improperly sued the Plan which is not a suable legal entity; and, (4) GMC's determinations that Plaintiff was not an eligible "employee" and that he could return to work are res judicata and beyond the applicable statutes of limitations (30 days under the Plan, or 6 months under § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185), commencing December 12, 1983 (the date it was determined that Plaintiff was a "voluntary quit"). See Defendant's Brief in Support, Item 12.

 In opposition (Plaintiff's Memorandum of Law, Item 18), Plaintiff argues that the instant action was clearly brought "to recover benefits due to him under the terms of the Plan, to enforce his rights under the terms of the Plan, or to clarify his rights to future benefits under the terms of the Plan" as provided in § 502 of ERISA. According to Plaintiff, he attempted to apply for disability pension benefits based on the fact that he was permanently and totally disabled prior to December 12, 1983--the date Defendant contends he was a "voluntary quit"--but was denied this attempt. Thus, according to Plaintiff, he was disabled while he was still emloyed by GMC, and was wrongfully denied the opportunity to recover benefits due him under the Plan in violation of ERISA, a claim wholly distinct from any claim that GMC breached the National Agreement when it made the "voluntary quit" determination (Item 18, pp. 7-11).

 Plaintiff also contends that the Plan is a proper party under the express provisions of ERISA, which provides that "an employee benefit plan may sue or be sued under [§ 502] as an entity." Thus, according to Plaintiff, his claim for relief against the Plan for enforcement of his right to collect benefits is correctly sued (id., pp. 11-12), and within the six-year statute of limitations applicable to ERISA (id., pp. 13-14). Plaintiff further contends that § 224 of the GMC-UAW National Agreement specifically provides that "no matter respecting the provisions of the Pension Plan . . . shall be subject to the grievance procedure established in this Agreement, . . ." (Item 11(a), Exh. 1, p. 146), and therefore no remedy is provided by the National Agreement under which he could sue for the relief he seeks (Item 18, 12-13).

 Finally, Plaintiff contends that the Plan itself does not contain an administrative appeals procedure for dental of an application for benefits and failure to issue an eligibility determination, and thus exhaustion of administrative remedies would have been futile in this case (id., p.15). See, e.g., Berger v. Edgewater Steel Co., 911 F.2d 911 (3d Cir. 1990).

 Oral argument was held on June 16, 1992, at which counsel for the parties were heard. Based on the matters addressed at argument and on the record before me, for the reasons discussed below, I recommend that the court deny each of Defendant GMC's motions, and further recommend that the court direct the Plan Administrator to provide Plaintiff with appropriate application forms or to otherwise allow Plaintiff to properly apply for disability pension benefits under the Plan's provisions for Total and Permanent Disability Retirement.


 Section 502 of ERISA provides, in ...

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