                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-15-2005

DiGiacomo v. Teamsters Pension
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3510




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                                                                       NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                     __________

                                           No. 04-3510
                                           __________

                                    ALFRED DIGIACOMO,
                                                   Appellant,

                                                 v.

                          TEAMSTERS PENSION TRUST FUND
                           OF PHILADELPHIA AND VICINITY,
                                                 Appellee.
                                     __________


                       On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                                  (Civil Action No. 04-1090)
                        District Judge: Honorable Legrome D. Davis
                                          __________

           Before: SCIRICA, Chief Judge, ALITO * and GARTH, Circuit Judges

                             (Opinion Filed: November 15, 2005)
                                        __________

                       OPINION OF THE COURT DENYING
                APPELLANT’S APPLICATION FOR ATTORNEY’S FEES
                                  __________

DORIS J. DABROWSKI, ESQ.
1500 Walnut Street, Suite 900
Philadelphia, PA 19102




      *
          Judge Alito did not participate in the conference resulting in this Opinion.
Attorney for Appellant
Alfred DiGiacomo

SUSAN A. MURRAY, ESQ.
Freedman & Lorry, P.C.
400 Market Street, Suite 900
Philadelphia, PA 19106

Attorney for Appellee
Teamsters Pension Trust Fund
of Philadelphia and Vicinity

Garth, Circuit Judge:

      Alfred DiGiacomo brought this action against the Teamsters Pension Trust Fund

of Philadelphia and Vicinity (the “Fund”) pursuant to the Employee Retirement Income

Security Act of 1974 (“ERISA”), 29 U.S.C. §1001 et seq., alleging that the Fund

incorrectly computed his pension benefits by refusing to credit pre-ERISA service time

accrued prior to a break-in-service. The District Court granted the Fund’s motion to

dismiss on the ground that ERISA did not preclude the Fund from relying on certain

break-in-service provisions in its governing pension plan. Those provisions explicitly

permitted the Fund to exclude DiGiacomo’s pre-ERISA service time accrued prior to his

break-in-service. A divided panel of this Court reversed, holding that Section 204 of

ERISA, 29 U.S.C. §1054, trumped the plan’s break-in-service provisions and thus

required the Fund to aggregate DiGiacomo’s pre-break and post-break service time in

calculating his accrued benefit. See DiGiacomo v. Teamsters Pension Trust Fund of




                                           -2-
Philadelphia and Vicinity, 420 F.3d 220 (3d Cir. 2005).1

       We revisit this matter only to decide whether DiGiacomo, as the prevailing party,

is entitled to attorney’s fees under ERISA, 29 U.S.C. §1132(g)(1).2 That provision

provides that “the court in its discretion may allow a reasonable attorney’s fee and costs

of action to either party.” 29 U.S.C. §1132(g)(1) (emphasis added); see also Ursic v.

Bethlehem Mines, 719 F.2d 670, 673 (3d Cir. 1983) (noting that 29 U.S.C. §1132(g)(1)

“does not automatically mandate an award to a prevailing party”) (citation omitted). We

have set forth the following five factors to guide the exercise of such discretion:

       (1) the   offending parties’ culpability or bad faith;
       (2) the   ability of the offending parties to satisfy an award of attorneys’ fees;
       (3) the   deterrent effect of an award of attorneys’ fees against the offending parties;
       (4) the   benefit conferred on members of the pension plan as a whole; and
       (5) the   relative merits of the parties’ position.

Ursic, 719 F.2d at 673.

       We conclude that application of the Ursic factors does not support DiGiacomo’s

request for an award of attorney’s fees. Our determination is particularly informed by the

first and fifth Ursic factors. As we noted earlier in these proceedings, the question



       1
           The Court denied the Fund’s Petition for Rehearing En Banc on October 5, 2005.
       2
          DiGiacomo’s counsel seeks $38,920.00 in attorney’s fees for services rendered in
successfully bringing an appeal from the District Court’s dismissal of the action. We requested
that the Fund respond to DiGiacomo’s application for attorney’s fees. On November 8, 2005, the
Fund filed Appellees’ Response in Opposition to Appellant’s Application for Attorney’s Fees,
arguing that DiGiacomo has failed to satisfy the guidelines set forth in Ursic v. Bethlehem Mines,
719 F.2d 670 (3d Cir. 1983) for an award of attorney’s fees.


                                               -3-
presented by this appeal – “whether, for accrual of benefit purposes, ERISA prevents

pension plans from denying credit for pre-ERISA service time accrued prior to a

break-in-service” – is a “close and difficult one.” DiGiacomo, 420 F.3d at 225. The

question has divided the Courts of Appeals. Compare McDonald v. Pension Plan of the

NYSA-ILA Pension Trust Fund, 320 F.3d 151, 153 (2d Cir. 2003) with Jones v. UOP, 16

F.3d 141, 143 (7th Cir.1994) and Redmond v. Burlington N. R.R. Co. Pension Plan, 821

F.2d 461, 466-67 (8th Cir. 1987). And it has led to a division within our Court. See

DiGiacomo, 420 F.3d at 228-231 (Alito, J., dissenting).

       In view of this divergence of opinion regarding the proper construction of

ERISA’s break-in-service rules, it is clear to us that there was no culpability or bad faith

on the part of the Fund in partially denying DiGiacomo’s claim for accrued benefits. It is

equally clear to us that the Fund’s legal position has significant merit. Leaving aside the

supporting opinions from the federal appellate courts, the Fund prevailed before the

Arbitrator and the District Court in the proceedings below. In addition, the Fund

reasonably relied on past decisions from our Court in enforcing its pre-ERISA break-in-

service provisions. See Haas & Cass v. Boeing Co., Civ. A. No. 90-7414, 1992 WL

221335, at *4-*7 (E.D. Pa. Sept. 4, 1992), aff’d without opinion, 993 F.2d 877 (3d Cir.

1993); see also Tanzillo v. Local Union 617, International Brotherhood of Teamsters, 769

F.2d 140 (3d Cir. 1985). In these circumstances, we find no basis for a discretionary

award of attorney’s fees to the prevailing party.



                                             -4-
       Even assuming, without deciding, that the remaining Ursic factors weigh in favor

of an award of attorney’s fees, we believe that the first and fifth Ursic factors so strongly

militate against such an award as to control our determination. Accordingly, we will deny

DiGiacomo’s application for attorney’s fees.




                                             -5-
