                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-3209
                                       ___________

                                RAYMOND O’BLENIS,
                                           Appellant

                                             v.

     NATIONAL ELEVATOR INDUSTRY PENSION PLAN; INTERNATIONAL
        UNION OF ELEVATOR CONSTRUCTORS LOCAL UNION NO. 1;
       MICHAEL RIEGGER; JOHN DOES 1-10; PLAN ADMINISTRATOR
                 ____________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                                (D.N.J. No. 2-13-cv-05842)
                      District Judge: Honorable Stanley R. Chesler
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 24, 2016
          Before: JORDAN, BARRY and VAN ANTWERPEN, Circuit Judges

                                 (Filed: March 25, 2016)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Raymond O’Blenis appeals from an order of the United States District Court for

the District of New Jersey, which granted the Defendants’ summary judgment motions.

We will affirm the District Court’s judgment.

       Because the history and facts of the case are thoroughly reviewed in the District

Court’s well-reasoned opinion, we will limit our discussion to facts especially pertinent

to our decision. O’Blenis was for many years a member of the International Union of

Elevator Constructors of New York and New Jersey, Local One (“Local One”), and

participated in its pension plan. O’Blenis eventually had to take a non-union job,

requiring him to resign from Local One. O’Blenis called Local One to inform it of his

decision to resign, and he spoke with Michael Riegger, Local One’s secretary-treasurer.

According to O’Blenis, Riegger informed him that if he retired, he would receive “two

thousand eight hundred something dollars” per month in pension benefits. Riegger also

gave O’Blenis the telephone number for the pension plan’s benefits office.

       O’Blenis applied for a pension, and despite receiving forms that said “Pension

Type: EARLY VESTED” and listed “Type Reduc.” of 50% or over with corresponding

calculated amounts, he believed that he would be receiving the “Normal Benefit” of over

$2,800 (listed at the top of the forms). After his application was complete, O’Blenis was

sent a more explicit form showing that his monthly benefit with “straight life” calculation

would be $1,468.30, minus health insurance deductions, for a total of $672.30 per month.

He acknowledged receiving this form, but still believed he would be getting over $2,800

per month (once again, the “normal benefit” listed at the top of the form). He requested
                                             2
direct deposit of the checks, and he did not receive bank statements or check his bank

balance until months later when he had trouble paying his mortgage.

       After unsuccessful administrative appeals, O’Blenis filed a counseled complaint

against Local One, Riegger, and the National Elevator Industry Pension Plan and its

administrator, claiming breach of fiduciary duty and equitable estoppel. O’Blenis did not

claim that the benefits he received were improperly calculated under the plan, but

claimed that the Defendants “materially misrepresented his status with respect to the

amount of his monthly pension benefit,” that the misrepresentations were made by

fiduciaries, and that he “relied upon this advice in making the decision to retire when he

did.” He also alleged that there were “extraordinary circumstances” warranting relief.

Complaint, Dkt. #1 at 6.

       Following discovery, the District Court granted the Defendants’ two summary

judgment motions. O’Blenis filed a timely, pro se appeal.

       We review the District Court’s order granting summary judgment de novo and

review the facts in the light most favorable to the nonmoving party. Burns v. Pa. Dep’t of

Corr., 642 F.3d 163, 170 (3d Cir. 2011). We will affirm if our review reveals that “there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a).

       We have recognized a cause of action for equitable estoppel under ERISA

§ 502(a)(3), 29 U.S.C. § 1132(a)(3). See Curcio v. John Hancock Mut. Life Ins. Co., 33

F.3d 226, 235 (3d Cir. 1994). A plaintiff seeking equitable relief in an ERISA case must
                                             3
establish: (1) a material misrepresentation or fraudulent concealment; (2) reasonable and

detrimental reliance upon the misrepresentation or concealment; and (3) extraordinary

circumstances. Pell v. DuPont, 539 F.3d 292, 300 (3d Cir. 2008).

      Assuming for the sake of argument that Riegger made a material

misrepresentation to O’Blenis regarding what the amount of his pension would be,1 we

agree with the District Court that O’Blenis could not show reasonable reliance on that

misrepresentation. First, O’Blenis had no reason to believe that Riegger had the authority

to bind the pension plan. In fact, O’Blenis acknowledges that Riegger gave him the

phone number to call the pension plan, implying that O’Blenis needed to contact

someone else. Second, the plan sent O’Blenis two “calculation/option” sheets reflecting

that O’Blenis would receive a reduced pension, followed by a third document that

informed O’Blenis of the exact amount that he would receive monthly. While O’Blenis

may have misread the forms or misunderstood the forms, we cannot find that he was

“reasonable” in relying on the one line on those forms that stated the “normal benefit”

where the rest of each form went into detail about his reduced pension. Because




1
  Riegger testified in his deposition that he did not tell O’Blenis how much he would
receive as a pension, but only gave him the telephone number for the pension plan. As
we view the evidence in the light most positive to the opposing party, we will assume for
sake of the analysis that Riegger informed O’Blenis of the amount. See Tolan v. Cotton,
134 S. Ct. 1861, 1866 (2014).

                                            4
O’Blenis did not raise a material issue of fact regarding his reasonable reliance, the

District Court properly awarded summary judgment on the equitable estoppel claims.2

       To the extent O’Blenis’s complaint raises a separate claim of a breach of fiduciary

duty under ERISA, summary judgment is appropriate because there is no genuine dispute

that any fiduciary under the plan or any person who acted with apparent authority of the

plan misrepresented any plan information. See Burstein v. Ret. Account Plan For Emps.

of Allegheny Health Educ. & Research Found., 334 F.3d 365, 384 (3d Cir. 2003) (setting

forth elements). Aside from bald statements that Riegger had apparent authority to act

for the plan, O’Blenis offers what he characterizes as a “pension claim denial” letter

written by Leonard Legotte, the president/business manager of Local One. Presumably

his argument is that Legotte acted for the plan, and thus all Local One officials could act

for the plan. But Legotte’s letter, which apparently was in response to O’Blenis’s inquiry

about his pension calculation, explicitly states that “Local No. 1 does not control or




2
  We need not reach the other prongs of the test, but we note that there is some question
as to whether, even assuming he were reasonable in relying on Riegger’s statement,
O’Blenis relied on the statement to his detriment. See Dist. Ct. Op. at 13-14 (noting
O’Blenis’s video statement in the record stating “that he would have had to ‘beg[],
borrow[], [and/or] steal’ to hold off on withdrawing his benefits,” suggesting that
necessity drove the timing of his pension withdrawal rather than misstatement of his
benefit amount). And we note that even if O’Blenis had met all of the prongs of the
equitable estoppel test, the District Court might have been justified in denying relief due
to O’Blenis’s lack of diligence in confirming the information he allegedly received from
Riegger with either the pension plan or his own bank. Cf. Pace v. DiGuglielmo, 544 U.S.
408, 419 (2005) (stating in context of equitable tolling of a period of limitations that
“petitioner’s lack of diligence precludes equity’s operation”).
                                             5
administer [the plan] and cannot correct the agreement which you made with the Pension

Plan when you determined to retire at age 57.” App. 1633a.

      For these reasons and those stated by the District Court, summary judgment was

appropriate. We will thus affirm the District Court’s judgment.




                                            6
