The opinion of the court was delivered by: PARKER
Plaintiffs, Charles T. Forde and Paul R. Grohowski, bring this action against defendants U.E. Systems Incorporated, U.E. Systems Money Inc. Purchase Plan, National Pension Service, Inc. under the Employee Retirement Income Security Act of 1974 ("ERISA"). Grohowski also sues Terrence O'Hanlon and Michael Osterer. Plaintiffs seek to recover penalties and attorneys fees. Before the Court is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
The plaintiffs, Paul Grohowski and Charles Forde, were employed by U.E. Systems from March 1, 1988 to March 3, 1992 and December, 1987 to January 22, 1993, respectively. During the course of their employment, plaintiffs, at different times, became eligible for participation in a money purchase plan established by U.E. Systems. The plan was funded entirely with contributions by U.E. Systems. Terrence O'Hanlon and Michael Osterer were Administrators and Trustees of the plan. No other fiduciaries were identified on the plan documents. After the plan was established, O'Hanlon and Osterer contracted National Pension Services ("NPS"), through its agent, Michael Meyers, to provide technical assistance in operating the plan. NPS's tasks included accounting, the preparation of annual reports and documents to be filed by the Administrators and Trustees with government agencies, the calculation of employee benefits, the calculation of contributions owed to the Plan by the sponsor, and the preparation of annual summaries of annual participants' interest in the plan, interests and amounts due at termination, and determination of employee eligibility.
On April 24, 1991, both Forde and Grohowski sent the following identical letters to Michael Meyers at NPS:
I would appreciate a statement of the U.E. Systems pension plan account. If this is not possible at the present time could you please furnish the following information:
B) the plan sponsor's 9 digit employer identification number
C) the 3 digit plan number used to identify the plan
On May 1, 1991, Meyers forwarded these letters to O'Hanlon with the accompanying cover letter:
I have tried several times to get in touch with you and have not been successful. I realize that you are extremely busy and certainly do not feel that you are avoiding me. . . I have been called weekly by [Grohowski] and I have recently received [a letter from Forde] requesting information concerning the pension program.
It seems to me they are indicating some concern as to monies in their account and I would like to address these questions. I would never be able to respond without permission from you.
On May 13, 1991, O'Hanlon wrote back to Meyers and indicated his willingness to discuss the pension plan. On March 23, 1992, U.E. Systems advised NPS that it had terminated Grohowski's employment. On April 9, 1992, NPS provided the Plan Administrator with Grohowski's termination calculations and other ...