Plaintiff was asked to permanently transfer from Consol to DuPont, which had merged. Plaintiff was concerned that his salary would decrease, but believed that DuPont’s more generous pension plan would offset the lower salary. Pell’s DuPont manager and supervisor both assured him that his Consol service time would be counted under the DuPont pension plan. Similar representations regarding the service date were made subsequently, under various cicumstances. The U.S. Court of Appeal for the Third Circuit found that an injunction and restitution were both appropriate equitable remedies: “In this case, the relief is an injunction to calculate Pell’s future pension payments using an earlier adjusted service date. Injunctions are legal remedies if they ‘compel the payment of money past due under a contract, or specific performance of a past due monetary obligation, a remedy that was not typically available in equity.’ The injunction imposed by the District Court in this case is forward-looking and entitles Pell to an amount of money that cannot be calculated with specificity (since it is unknown how long he will survive and be entitled to benefits). Therefore, the injunction is an equitable remedy that is permissible under ERISA…. Having determined that it was permissible for the District Court to order DuPont to pay a higher pension benefit going forward, we must examine whether the Court correctly declined to order DuPont to pay restitution for the unduly low payments Pell had already received. Because the pension funds are held in trust by DuPont and thus are specifically identifiable property, the District Court erred when it determined that restitution was not available.” See Pell v. DuPont, 539 F.3d 292 (3d Cir. 2008).
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