                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-26-2000

Harte v. Bethlehem Steele
Precedential or Non-Precedential:

Docket 98-2052




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"Harte v. Bethlehem Steele" (2000). 2000 Decisions. Paper 110.
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Filed February 29, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-2052

ROBERT J. HARTE, Appellant

v.

BETHLEHEM STEEL CORPORATION; GENERAL PENSION
BOARD OF THE BETHLEHEM STEEL CORPORATION
AND SUBSIDIARY COMPANIES; MICHAEL P. DOPERA,
Secretary, Employee Benefits Administration Committee

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 97-cv-06528)
District Judge: Honorable Edward N. Cahn

Argued: September 28, 1999

Before: BECKER, Chief Judge, McKEE, and NOONAN*
Circuit Judges.

(Filed: February 29, 2000)

       DONALD P. RUSSO, ESQUIRE
        (ARGUED)
       60 West Broad Street
       P.O. Box 1890, Suite 300
       Bethlehem, PA 18016

Counsel for Appellant



_________________________________________________________________
* Honorable John Noonan, United States Circuit Judge for the Ninth
Circuit, sitting by designation.
       G. STEWART WEBB, JR., ESQUIRE
        (ARGUED)
       RANDOLPH STUART SERGENT,
        ESQUIRE
       Venable, Baetjer and Howard, LLP
       1800 Mercantile Bank & Trust Bldg.
       2 Hopkins Plaza
       Baltimore, MD 21201

       KATHLEEN M. MILLS, ESQUIRE
       Bethlehem Steel Corporation
       Law Department
       1170 Eighth Avenue
       Bethlehem, PA 18016-7699

       Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

This appeal, arising out of a claim for pension benefits
under ERISA, is set in the familiar factual pattern of an
employee's being denied a more advantageous pension
because of a minor shortfall in the required period of
service. Robert J. Harte had accrued credit for fourteen
years, eleven months, and eleven days at Bethlehem Steel
when the benefits plan administrator terminated his
continuous service (for pension purposes) because Harte
had been absent from work for two years. When Harte's
service was terminated, he was nineteen days short of
eligibility for the "70/80" pension he now seeks. Harte
claims that he did not learn that his service had been
"broken," and hence that he had not accrued the fifteen
years required for the pension, until approximately eight
years later. After finally being notified of his shortfall, Harte
sued, raising a host of arguments for why Bethlehem was
required to give him the 70/80 pension, including
arguments as to why his continuous service should never
have been severed. The District Court granted summary
judgment for Bethlehem.

                               2
Harte's strongest claim is a breach of fiduciary duty
claim. He argues that (1) the plan document was
ambiguous about when a break in service would be
effected, (2) he reasonably believed that he was still
employed under the terms of the plan, and therefore (3)
Bethlehem, as an ERISA fiduciary, should have at least
notified him that it was about to break his service. The
primary issue presented by this appeal is whether ERISA
requires plan administrators, as fiduciaries, to timely
inform plan beneficiaries that their service is being broken
if the severance is made pursuant to an ambiguous plan
provision that a reasonable person could interpret
differently from the administrator. We conclude that it does,
giving rise to the ancillary issues of whether the plan
provision is ambiguous, whether it is material, and whether
Harte detrimentally relied on it.

The phrase at issue in this case is "compensable
disability." The Bethlehem plan provides that an employee
may receive a 70/80 pension after fifteen years of
"continuous service." It states that although continuous
service is broken two years after leaving work for a
disability, it is not broken if the reason for leaving is a
"compensable disability incurred during course of
employment." Bethlehem represents that the plan
administrator, within his authority, has consistently
interpreted this phrase to apply only to work-related
disabilities that are compensated by state worker's
compensation, which Harte did not receive. However, Harte
applied for, received, and continues to receive,
compensation for his disability through the company's long
term disability program. On this ground, he contends that
his service should never have been broken because he has
a "compensable disability incurred during course of
employment." He submits that the term "compensable
disability" is ambiguous as to whether it comprehends long
term disability benefits as well as worker's compensation
benefits.

Although we agree with Bethlehem that the plan
administrator had the authority to make the interpretation
that he did and to effect the severance, our precedent
requires us to conclude that the company also had a

                                3
fiduciary duty to timely inform Harte of its interpretation.
We have consistently held that a fiduciary may not make
inconsistent or confusing statements or fail to disclose
material facts about a plan. It follows that when a material
plan provision regarding severance is ambiguous and
beneficiaries might predictably rely on an alternate
interpretation, a fiduciary may be held liable for failing to
inform them that their service has been broken at a time at
which they could attempt corrective action or seek
alternatives.

In short, a plaintiff may succeed on a claim under
S 502(a)(3) of ERISA when he adduces evidence that (1) a
plan provision is material; (2) it is susceptible of multiple
reasonable interpretations; (3) the plaintiff relied on it to his
detriment; and (4) the company did not timely notify the
plaintiff of its interpretation. We therefore vacate the grant
of summary judgment and remand the case for further
proceedings on the breach of fiduciary duty claim. 1 The
District Court properly granted summary judgment for
Bethlehem on all other issues, and we affirm summarily
with respect to these claims.2
_________________________________________________________________

1. Bethlehem argues that Harte should not be allowed to proceed on this
claim because it was inadequately pled. Harte did not cite S 502(a)(3) in
his complaint, nor did he seek to amend the complaint. His complaint
does, however, allege the lack of notification, and his papers refer to
several cases that revolve around S 502(a)(3) claims. Moreover, the
District Court discussed this claim in the context of one of those cases,
Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292
(3rd Cir. 1993) (a breach of fiduciary duty case that we discuss more
fully infra Section II). We are satisfied that, given our broad notice
pleading standards, Harte's breach of fiduciary duty claim has been
adequately pled.

2. Harte contends that, given the ambiguity of the plan provisions,
Bethlehem could not interpret the plan in a fashion that inhered to its
own benefit. However, under the aegis of Firestone Tire and Rubber Co.
v. Bruch, 489 U.S. 101, 114-15 (1989), when an ERISA plan provides the
plan administrator with fiduciary discretion, courts generally use the
arbitrary and capricious standard to review the administrator's
decisions. Paragraphs 5.3(a) and 8.1 of the Bethlehem plan grant the
administrator the discretion to interpret the "continuous service"
provision. Even where the company is both the plan sponsor and plan

                               4
I.

As far as is pertinent to this appeal, Harte worked at
Bethlehem in several capacities between 1973 and 1986.3
On January 27, 1986, Harte, then a project engineer, left
work because of cardiac problems (angina from a prior
anteriolateral myocardial infarction). He did notfile for, or
receive, state worker's compensation benefits. He did,
however, file for, and receive, long term disability (LTD)
benefits through the company's benefits program, which he
was still receiving as of the date he filed the present
lawsuit. On January 27, 1988, after crediting Harte with 14
years, 11 months, and 11 days of "continuous service,"
Bethlehem terminated his service. This left Harte nineteen
days short of being eligible for pensions which would
provide greater benefits than the deferred vested pension to
which he is currently entitled.

The Bethlehem Plan provides that continuous service
breaks two years after active employment ends due to layoff
or a disability, but does not break if an employee leaves
active employment due to a "compensable disability
incurred during course of employment."4 Michael Dopera,
_________________________________________________________________

administrator we have applied the arbitrary and capricious standard of
Bruch. See Abnathya v. Hoffman-La Roche, Inc., 2 F.3d 40, 45 n.5 (3d
Cir. 1993). Applying that standard, Bethlehem's plan administrator did
not abuse his discretion when he concluded that Harte did not have a
"compensable disability incurred during course of employment."
Reviewing the documents available to him, there was no clear indication
that his disability was work-based, and it was within the plan
administrator's discretion to conclude that those on worker's
compensation should be credited for continuous service for the time that
they were on worker's compensation, while those who left for other
disability-based reasons should not be so credited. The issue decided in
the text is, of course, a different one.

3. Harte also worked for Bethlehem briefly in 1952 and again between
1962 and 1967. His claim that his previous service must be used to
calculate the time he can credit towards his pension claims is patently
without merit and we reject it without further discussion.

4. In section 5.1 the term "continuous service" is defined (emphasis
added):

                               5
plan administrator of the Bethlehem Pension Plan, testified
by deposition that he broke Harte's continuous service in
January 1988, because he left for medical reasons but did
not have a "compensable disability" within the meaning of
the plan. According to Dopera, "compensable disability
incurred during course of employment" has always been
interpreted by his office to apply only to those disabilities
"where the recipient is getting worker's compensation
benefits." Dopera conceded that there was no document
available to the employees in which this interpretation was
_________________________________________________________________

       The term "continuous service" as used in this Plan means
       continuous service in the employ of one or more of the Employing
       Companies, except as in this Section 5 otherwise provided, prior to
       retirement calculated from the Employee's last hiring date (this
       means in the case of a break in continuous service, continuous
       service shall be calculated from the date of reemployment following
       the last unremoved break in continuous service) in accordance with
       the following provisions; provided, however, that the last hiring
date
       prior to the effective date of this Plan shall be based on the
practices
       in effect at the time the break occurred:

       (a) There shall be no deduction for any time lost which does not
       constitute a break in continuous service, except that in
       determining length of continuous service for pension purposes:

         (1) that portion of any absence which continues beyond two
       years from commencement of absence due to a layoff or
       disability shall not be creditable as continuous service;
       provided, however, that absence in excess of two years due to
       a compensable disability incurred during course of employment
       shall be creditable as continuous service, if the Employee is
       returned to work or retires within 30 days afterfinal payment
       of statutory compensation for such disability or after the end
       of the period used in calculating lump sum payment

         . . .

       (b) Continuous service shall be broken by:

         (4) absence which continue for more than two years, except
       that (i) absence in excess of two years due to a compensable
       disability incurred during course of employment shall not
       break continuous service, provided the Employee is returned
       to work or retires . . . .; (ii) if an Employee is absent on
       account of layoff or disability in excess of two years . . .

                               6
announced or formalized. Nor did he suggest that the plan
mandated that interpretation, but rather that the plan
"provides that we have the right to interpret provisions
under the administration section. We interpret the
compensable disability occurred during course of
employment to mean someone actually getting worker's
compensation payments." (emphasis added).

In November 1995, Harte received a letter stating that his
continuous employment had been severed as of January
27, 1988, seven years and ten months earlier, and that he
was eligible for a deferred vested pension. He immediately
objected and wrote several letters to the company.
Bethlehem apologized for not informing him earlier,
blaming the lack of official notice on a "clerical error."
Bethlehem represents that it has a policy of notifying plan
participants that their service has been broken shortly after
the severance and there is no evidence that it does not
generally do so, or that Bethlehem was acting in bad faith
when it failed to notify Harte in 1988.

Harte filed suit in District Court advancing several
claims. As far is as is relevant for this appeal, the Court
rejected Harte's contention that Bethlehem had an
obligation to notify him when he was severed because: (1)
it concluded that there was no evidence that Bethlehem
had acted in bad faith; and (2) it believed that there was no
fiduciary obligation to inform Harte that his service had
broken. The Court granted summary judgment across the
board for Bethlehem, and this appeal followed.5
_________________________________________________________________

5. We exercise plenary review over such a decision, see Olson v. General
Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996), and apply the same
test the District Court should have applied in thefirst instance, see
Lawrence v. National Westminster Bank, New Jersey , 98 F.3d 61, 65 (3d
Cir. 1996). We must therefore determine whether the record, when
viewed in the light most favorable to Harte, shows that there is no
genuine issue of material fact and that defendants are entitled to
judgment as a matter of law. See Salley v. Circuit City Stores, Inc., 160
F.3d 977, 980 (3d Cir. 1998).

                               7
II.

Harte seeks equitable relief under ERISA S 502(a)(3)
(codified at 29 U.S.C. S 1132(a)(3)), a"catchall" provision,
which "act[s] as a safety net, offering appropriate equitable
relief for injuries caused by violations that S 502 does not
elsewhere adequately remedy," including violations of S 404.
Varity v. Howe, 516 U.S. 489, 512 (1996). The alleged
violation of ERISA involves S 404 (codified at 29 U.S.C.
S 1104), which defines fiduciary duties owed by plan
administrators to their beneficiaries.6

       In its declaration of policy, ERISA states:

       [O]wing to the lack of employee information and
       adequate safeguards concerning their operation, it is
       desirable in the interests of employees and their
       beneficiaries . . . that disclosure be made and
       safeguards be provided with respect to the
       establishment, operation, and administration of such
       plans.

       . . .

       It is hereby declared to be the policy of this chapter to
       protect . . . the interests of participants in employee
       benefit plans and their beneficiaries, by requiring the
       disclosure and reporting to participants and
       beneficiaries of financial and other information with
       respect thereto, by establishing standards of conduct,
_________________________________________________________________

6. Section 404(a)(1) provides that:

       a fiduciary shall discharge his duties with respect to a plan
solely in
       the interest of the participants and beneficiaries and--

       (A) for the exclusive purpose of:

       (i) providing benefits to participants and their beneficiaries; and

       (ii) defraying reasonable expenses of administering the plan;

       (B) with the care, skill, prudence, and diligence under the
       circumstances then prevailing that a prudent man acting in a like
       capacity and familiar with such matters would use in the conduct
       of an enterprise of a like character and with like aims;

       . . .

                               8
       responsibility, and obligation for fiduciaries of
       employee benefit plans, and by providing for

       appropriate remedies, sanctions, and ready access to
       the Federal courts.

29 U.S.C. SS 1001(a),(b).

In interpreting similar claims, we have looked to these
statements and noted that ERISA was enacted, in part, to
ensure that employees receive sufficient information about
their rights under employee benefit plans to make well-
informed employment and retirement decisions. See Jordan
v. Federal Express Corp., 116 F.3d 1005, 1012 (3rd Cir.
1997). The goals of the "fiduciary duty jurisprudence"
arising out of ERISA are " `to protect and strengthen the
rights of employees, to enforce fiduciary standards, and to
encourage the development of private retirement plans.' " Id.
at 1014 (quoting In re Unisys Savings Plan Litig., 74 F.3d
420, 434 (3d Cir. 1996)).

These ends are partially served through ERISA's
reporting requirements. But the fiduciary duty to disclose
and explain is not achieved solely by technical compliance
with the statutory notice requirements. In In re Unisys
Corp. Retiree Med. Benefit "ERISA" Litig. , 57 F.3d 1255
(1995), we stated that

       satisfaction by an employer as plan administrator of its
       statutory disclosure obligations under ERISA does not
       foreclose the possibility that the plan administrator
       may nonetheless breach its fiduciary duty owed plan
       participants to communicate candidly, if the plan
       administrator simultaneously or subsequently makes
       material misrepresentations to those whom the duty of
       loyalty and prudence are owed.

Id. at 1264.

The contours of these duties must be defined by the
courts in "develop[ing] a federal common law of rights and
obligations under ERISA-regulated plans." Varity, 516 U.S.
at 497 (citing Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 110-11(1989)). Administrators have a fiduciary
duty "not to misinform employees through material
misrepresentations and incomplete, inconsistent or

                                9
contradictory disclosures." Unisys, 57 F.3d at 1264. Not all
misleading statements or omissions by a fiduciary are
actionable, only those that are material. A representation or
omission is material if "there is a substantial likelihood that
it would mislead a reasonable employee in making an
adequately informed retirement decision." Unisys, 57 F.3d
at 1264. The issue of materiality is a matter for the fact-
finder if reasonable minds can differ on whether a
misleading statement or omission would affect a reasonable
employee's retirement decision. See Fischer v. Philadelphia
Elec. Co., 994 F.2d 130, 135 (3d Cir. 1993).

This case does not involve affirmative misrepresentations.
However, we have made clear that a fiduciary not only has
a negative duty not to misrepresent material facts to plan
beneficiaries, but also a corresponding affirmative duty to
speak "when the trustee knows that silence might be
harmful." Bixler v. Central Pa. Teamsters Health & Welfare
Fund, 12 F.3d 1292, 1300 (3rd Cir. 1993). The duty
extends to "those material facts, known to thefiduciary but
unknown to the beneficiary, which the beneficiary must
know for its own protection." Glaziers & Glassworkers
Union Local No. 252 Annuity Fund v. Newbridge Sec., Inc.,
93 F.3d 1171, 1182 (3rd Cir. 1996). "The duty to disclose
material information is the core of a fiduciary's
responsibility." Id. at 1281 (quoting Bixler, 12 F.3d at
1300).

In Bixler, a widow sued her husband's former employer
for failing to provide complete and accurate information
about her insurance options, a failure which she claimed
harmed her by leading her not to select a particular option.
See 12 F.3d at 1296. We held that an ERISA fiduciary who
explains insurance benefits has a "duty to convey complete
and accurate information," and remanded part of the case
to the district court to determine whether material facts
were withheld from her and if the defendant was acting as
a fiduciary. Id. at 1302.

In Jordan v. Federal Express Corp., 116 F.3d 1005, 1006-
10 (3rd Cir. 1997), the plaintiff learned--only after
retirement and divorce--that he could not transfer the
benefits of his plan to his new wife, and that the plan was
irrevocable. These details about the plan were in the plan

                               10
document itself, but Jordan never requested nor received a
complete copy of the plan, and he claimed that he would
have chosen a different plan had he known. He did receive
a written summary of his retirement options that did not
include a reference to irrevocability. Nonetheless, we held
that a reasonable fact finder could conclude that, despite
its full compliance with ERISA and plan-based reporting
requirements, the plan administrator had breached its
fiduciary duty by failing to provide him this information.
See id. at 1016.

Bethlehem argues that Jordan is distinguishable because
in Jordan the plan administrator had already acted and
provided incomplete information. See id. at 1016-17. It
contends that sending Jordan information triggered a duty
to provide complete information about the plan, and since
Bethlehem did not provide any information, a duty of
completeness cannot have been triggered here. This
argument fails for two reasons. First, the Jordan panel did
not base the duty to inform completely on the company's
prior limited effort at communication. See id. Second,
providing a written plan is itself an affirmative act. In a
plan, as in a summary plan document, beneficiaries have
reason to expect that complete information about all
material provisions is available to them when they review
the document. Confusing or incomplete information in a
plan is at least as likely to cause reliance on a reasonable
misinterpretation as is confusing or incomplete information
in a summary of the plan. Indeed, when a summary plan or
letter includes incomplete information, the employee retains
the possibility of reviewing the entire plan, whereas there
are no more authoritative documents to review when the
ambiguous provision is in the plan itself.

Therefore, we conclude that there is an incomplete
disclosure when, as in this case, a material plan provision,
easily accessible by a beneficiary, uses terms that are
susceptible to reasonable misinterpretation and detrimental
reliance thereon. Naturally, in considering the
"reasonableness" of a beneficiary's interpretation, the
company's own pronouncements and widely-known
company practice must be taken into account; if a company
adequately informs beneficiaries of its interpretation of a

                               11
term (when it retains discretion to interpret), it would be
patently unreasonable to understand it otherwise. 7 The
"duty to convey complete and accurate information," Bixler,
12 F.3d at 1302, logically encompasses a duty to use clear
language when describing material terms in a plan, or
explain it when it is unclear. The failure to notify a
beneficiary that his or her service is being broken pursuant
to an ambiguous provision falls within the category of
breaches of duty for "failure to disclose" outlined in Bixler,
Jordan, Glaziers, and Unisys.

III.

Applying this framework, we conclude that Bethlehem
should not have been granted summary judgment on
Harte's breach of fiduciary duty claim. The term
"compensable disability incurred during the course of
employment" is a material term in the context of the plan.
The meaning of the phrase affects whether one's
employment is considered continuous or broken off, and a
fiduciary acting with care, skill, and prudence would know
that an employee would want--and need--to know whether
his or her disability fell within this category. It is the kind
of phrase that is likely to "mislead a reasonable employee in
making an adequately informed retirement decision."
Unisys, 57 F.3d at 1264. If Harte knew that he was not
included in this category, he could have tried to return to
less strenuous work for at least nineteen days, or
attempted to find work, either at Bethlehem or elsewhere,
that would allow him to receive better insurance, or he
could have encouraged his wife to seek employment that
would better insure them both.

       The disputed phrase is:

       [A]bsence in excess of two years due to a compensable
       disability incurred during course of employment shall
       not break continuous service.
_________________________________________________________________

7. Although we focus on Bethlehem's failure to notify in this case, we
note that it could just as easily have fulfilled its fiduciary duties by
using
clear language in the plan--i.e., a statement that"compensable
disability" only applied to individuals receiving state worker's
compensation.

                                 12
Bethlehem claims that this phrase has consistently been
interpreted to cover only those cases where a participant
applied for and received worker's compensation for a work-
related injury. However, Dopera himself called his reading
of the phrase an "interpretation," suggesting that the
language did not mandate a particular result. Although the
phrase could refer only to those disabilities arising out of
work, a reasonable person could also read this phrase to
apply to any disability, illness, or injury that came upon an
employee during the broad time frame of "active
employment." Certainly, someone such as Harte who was
actually receiving compensation for his medical condition
through Bethlehem's long term disability program could
think that he had suffered a "compensable disability."8
There is a genuine issue of material fact as to whether the
phrase is susceptible of multiple reasonable interpretations.

Of course, this phrase cannot be read in a vacuum, and
it is possible that Bethlehem will present evidence at trial
that will demonstrate that in the context of employment
with that company, it was not reasonable to expect that the
phrase would be differently interpreted. However,
construing the facts in the light most favorable to Harte, as
we must at this juncture, we conclude that the phrase was
susceptible to at least two reasonable interpretations, one
of which would cover someone like Harte, who was
receiving compensation through long term disability
benefits.

As to the detrimental reliance question, Bethlehem
argues that there is insufficient evidence that Harte relied
on his misinterpretation of the plan. Therefore, the
argument continues, since no harm flowed from the failure
of communication, the failure to notify should not be
actionable. Harte counters that had he learned of his
severance, either immediately or within a short time
afterwards, he would have taken several steps. He submits
_________________________________________________________________

8. Harte also claims that his illness was due in part to the stress of
work, and adduced evidence that his doctor, at the time he left
Bethlehem, concurred in this view. This evidence adds weight to his
claim that he reasonably believed that his disability was "incurred
during the course of his employment."

                               13
that he could have gone back to work for nineteen days and
then attempted to join those days to his previous fourteen
odd years (as the plan allows), or, alternatively, he could
have applied for different pensions or invested in separate
insurance. Although Harte has not put evidence in the
record of alternate pensions for which he could have
applied, we believe that he could have at least attempted to
return to work.

Bethlehem notes that he had no absolute right to return
to work, and that Harte was physically infirm and
incapable of working according to his own physician.
However, just as we cannot assume that Bethlehem would
have accepted a petition for such a brief tour of duty, we
similarly cannot assume that it would not have. Harte had
cardiac troubles, and now claims that he has Parkinson's
disease. Although these disabilities may be incompatible
with long term labor, Harte might have been able to put in
a few weeks of consulting (his work did not require heavy
labor) to achieve his desired pension, and Bethlehem might
have accommodated him. Moreover, as noted above, Harte
could have sought out alternate sources of insurance. We
are satisfied that although Harte had no absolute right to
return to work and possibly lacked the ability to do so, a
reasonable jury could conclude, even on this spare record,
that had he known that he was no longer receiving credit
for "continuous service" he could have acted in a way to
protect himself.9 Now, eight years later, his physical
condition may have deteriorated such that he can no longer
obtain the protections he might previously have sought.
_________________________________________________________________

9. Bethlehem also argues that even if it had a duty to notify Harte, it
would not apply to the moment of discharge, but rather, as is its policy,
"within a reasonable period following a break in service." Therefore,
"[t]he
date on which Plaintiff received a Notice of Deferred Vested Pension
could not possibly alter the benefits to which he is entitled under the
Plan." However, Bethlehem's internal policy of notification does not
circumscribe its fiduciary duties under ERISA. If ERISA requires that
fiduciaries notify individuals of ambiguities in plan documents if they
might reasonably be respected to rely, to their detriment, on an incorrect
reading of an ambiguity, a company may not avoid this duty by
establishing a lesser reporting requirement for itself.

                               14
It may seem that any one who was away from the
company as long as Harte was would have to know that
they had been severed. But Harte continued to receive long
term disability payments, and considered himself a disabled
employee, instead of a disabled ex-employee. In sum, we
believe that a jury could conclude that Harte was not even
on constructive notice of Bethlehem's policy of interpreting
the plan provision, or of his own severance.

In view of the foregoing, the judgment with respect to the
claim for a breach of fiduciary duty for failure to notify will
be vacated, and the case remanded to the District Court for
further proceedings. In all other respects the judgment will
be affirmed. Parties to bear their own costs.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               15
