                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-21-2007

Leckey v. Stefano
Precedential or Non-Precedential: Precedential

Docket No. 06-3161




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Recommended Citation
"Leckey v. Stefano" (2007). 2007 Decisions. Paper 2.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/2


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                                                                     PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                          Nos. 06-2483, 06-3161 & 06-3162


                     JANICE B. LECKEY; JANICE B. LECKEY,
                      Executrix of the Estate of Evelyn O. Knapp,
                       a/k/a Evelyn Olliffe Knapp, Deceased also
                        known as JANICE BURGER LECKEY

                                                     Appellant
                                          v.

                      PAUL W. STEFANO; FRANK W. JONES,
                        Administrators of the Estate of William
                        E. Knapp, Deceased, and Trustees of the
                      Insurance Trust of William Knapp, deceased


                     Appeal from the United States District Court
                      for the Western District of Pennsylvania
                        (D.C. Civil Action No. 95-cv-00108)
                     District Judge: Honorable David S. Cercone


                                Argued April 24, 2007

                     Before: McKEE and AMBRO, Circuit Judges
                             ACKERMAN,* District Judge

                            (Opinion filed August 31, 2007)

William R. Caroselli, Esquire
Caroselli, Beachler, McTiernan & Conboy
312 Boulevard of the Allies

   *
    Honorable Harold A. Ackerman, United States District Judge for the District of New
Jersey, sitting by designation.
8th Floor
Pittsburgh, PA 15222

Edward C. Leckey, Esquire (Argued)
1034 Fifth Avenue
Pittsburgh, PA 15219

      Counsel for Appellant

David A. Strassburger, Esquire (Argued)
Harry F. Kunselman, Esquire
Strassburger, McKenna, Gutnick & Potter
444 Liberty Avenue
Suite 2200 Four Gateway Center
Pittsburgh, PA 15222

      Counsel for Appellee

Mary Beth Buchanan
  United States Attorney
Eileen J. O’Connor
  Assistant Attorney General
Kenneth L. Greene, Esquire
Michelle B. Smalling, Esquire (Argued)
Department of Justice, Tax Division
Post Office Box 502
Washington, D.C. 20044

      Counsel for Amicus Curiae
      Commission of Internal Revenue


                ORDER AMENDING PRECEDENTIAL OPINION

AMBRO, Circuit Judge

       It is now ordered that the published Opinion in the above case filed August 31,
2007, be amended as follows:

      On page 10, in the first sentence of footnote 7, insert “claim” between
“§ 1132(a)(1)(B)” and “because” so that the sentence reads:

                                            2
              In her brief, Leckey appears to abandon her § 1132(a)(1)(B) claim because
              it would be futile to sue a plan that no longer has any assets.

      On page 25, in the sixth line of footnote 10, change “Jun. 6, 2007” to “June 6,
2005” so that the citation reads:

              Leckey v. Stefano (Leckey II), No. 95-108 (W.D. Pa. June 6, 2005), at 4.

        On page 26, in the tenth line of the footnote, change “Par. 26” to “Apr. 26” so that
the citation reads:

              Leckey v. Stefano (Leckey I), No. 95-108 (W.D. Pa. Apr. 26, 2004), at 21
              (granting in part and denying in part cross-motions for summary judgment).

        On page 33, in line 10, change the comma after “Mass” to a period so that the
citation reads:

              Mass. Mut. Life Ins. Co., 473 U.S. at 147.

        On page 33, in the third line from the bottom of the page, delete “(8th Cir.1995)”
so that the citation reads:

              Roth, 61 F.3d at 603.

       On page 38, in the seventh line from the bottom of the page, change “If the plan
contain” to “If the plan contained” so that the sentence reads:

              If the plan contained a qualified annuity requirement, William died after
              illegally removing assets from the Trust, and so the proper remedy for this
              29 U.S.C. § 1132(a)(2) violation is to restore those assets.

       On page 39, line 8, change “1113(a)” to “1113” so that the citation reads:

              29 U.S.C. § 1113.

       On page 39, lines 11–12, change “29 U.S.C. § 1113(c)” to “Id.”

       On page 44, lines 1–2, change “the William’s estate” to “William’s estate” so that
the sentence reads:

              Here, Leckey alleges that the funds wrongfully withdrawn from the Pension

                                             3
             Trust were deposited in a Charles Schwab brokerage account that is
             currently an asset of William’s estate (and thus under the control of the
             nominal defendants).


                                         By the Court,

                                         /s/ Thomas L. Ambro, Circuit Judge

Dated: December 21, 2007
CRG/cc: William R. Caroselli, Esq.
         Edward C. Leckey, Esq.
         Kenneth L. Greene, Esq.
         Michelle B. Smalling, Esq.
         David A. Strassburger, Esq.
         Harry F. Kunselman, Esq.




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