UNITED STATES COURT OF APPEALS
	FOR THE THIRD CIRCUIT
	___________
	
	Nos. 93-7545 and 93-7556
	___________

	MARITA L. CURCIO;
	THE ESTATE OF FREDERICK CURCIO, III

			vs.

	JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY;
	CAPITAL HEALTH SYSTEMS

		John Hancock Mutual Life Insurance Company
		("John Hancock"),

					Appellant in No. 93-
7545

	MARITA L. CURCIO;
	THE ESTATE OF FREDERICK CURCIO, III

			vs.

	JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY;
	CAPITAL HEALTH SYSTEMS

		MARITA L. CURCIO, INDIVIDUALLY AND AS 
EXECUTRIX OF THE ESTATE OF FREDERICK CURCIO, 
III

					Appellant in No. 73-
7556
	___________
	
	Appeal from the United States District Court 
	for the Middle District of Pennsylvania 
	(D.C. Civil No. 92-00789) 
	___________
	 
	Argued
	March 10, 1994
	Before:  MANSMANN and LEWIS, Circuit Judges and
		     McKELVIE, District Judge.*

	(Filed August 17, 1994)
	___________

*	Honorable Roderick R. McKelvie of the United 
States District Court for the  District of Delaware, sitting 
by designation.    

Michael D. Fishbein, Esquire (ARGUED)
Levin, Fishbein, Sedran & Berman
320 Walnut Street
Philadelphia, PA  19106

  Counsel for Appellee/Cross Appellant Marita L. Curcio

James K. Thomas, II, Esquire
Richard C. Seneca, Esquire (ARGUED)
Thomas, Thomas & Hafer
305 North Front Street
P.O. Box 999
Harrisburg, PA  17108

  Counsel for Appellee CAP Health Systems

Alan R. Boynton, Jr., Esquire (ARGUED)
McNees, Wallace & Nurick
100 Pine Street
P.O. Box 1166
Harrisburg, PA  17108

  Counsel for Appellant
	___________

	OPINION OF THE COURT
	__________

MANSMANN,  Circuit Judge.
	Frederick Curcio, III, M.D., died in an automobile 
accident while employed as a full time physician at 
Harrisburg Hospital, which is owned by Capital Health 
Systems.  Capital Health sought to provide to its employees 
basic life insurance coverage and basic accidental death and 
dismemberment coverage through John Hancock Mutual Life 
Insurance Company.  Marita L. Curcio, Frederick's widow, 
collected $200,000 in life insurance proceeds and $50,000 
from the accidental death coverage.  Claiming entitlement to 
an additional $150,000 in accidental death benefits because 
of representations made by Capital Health in its plan 
summary document, she brought an action, individually and as 
executor of Frederick's estate, against Capital Health and 
John Hancock under the Employee Retirement Income Security 
Act of 1974, 29 U.S.C.  1001-1461 (1988).  The district 
court granted summary judgment in favor of Mrs. Curcio and 
Capital Health and against John Hancock.  John Hancock 
appeals and Mrs. Curcio cross-appeals to preserve her rights 
against Capital Health.  We hold that John Hancock is not 
responsible either for Capital Health's inaccurate 
representations made to its employees or for any additional 
recovery under John Hancock's clearly stated policy.  We 
further hold that Capital Health is liable under the 
alternative theories of breach of fiduciary duty and 
equitable estoppel.  

	I.
	The historical facts of this case are not in 
dispute.  Since October of 1989,[fn1]   John Hancock has 
provided life insurance and accidental death and 
dismemberment insurance for all full-time Capital Health 
employees in an amount equal to the employee's base annual 
salary to a maximum of $50,000.  John Hancock also offered 
twenty-one senior employees, who had the same basic coverage 
as the other employees, the opportunity to purchase 
supplemental coverage, for both life and AD&D, up to the 
amount they were currently receiving.  Because no one could 
be added to this group of employees, it became known as the 
frozen group.  Dr. Curcio was not a member of this 
group.[fn2] 
	One year later Capital Health wanted to extend to 
all employees the opportunity to purchase the same 
supplemental coverage from John Hancock as offered to the 
frozen group.  Capital Health held group meetings for its 
employees where it introduced the supplemental coverage 
through an audio-visual presentation, explaining that 
supplemental insurance could be purchased in amounts 
equaling one, two or three times the amount of an employee's 
base annual salary, not to exceed $150,000.  This coverage 
amount would be in addition to the coverage amount provided 
by the basic plan.  The presentations clearly represented to 
the employees that this option was available "to increase 
your life and AD&D insurances significantly."  The 
audiotape, which was accompanied by slides, stated in 
pertinent part:
		Finally, let's look at other 
important elections you have available 
under choice plus.

		Capital Health provides free group 
life and accidental death and 
dismemberment -- or AD&D -- insurance 
for all full-time and part-time 
employees scheduled to work at least 16 
hours a week.  Each of the coverages is 
equal to:

		o	One Times Basic Average 
Earnings up to a Maximum of 
$50,000 for full-time 
employees and,

		o	One Times Basic Average 
Earnings up to a Maximum of 
$25,000 for part-time 
employees.

	You also have an opportunity of 
purchasing additional coverages up to 
three times basic average earnings 
subject to the maximums shown on the 
chart.  (Chart on Screen)

	The contributions you pay for these 
coverages are at low group rates and 
depend on your amount of coverage and 
your age.  An important point:  unless 
you take advantage of increasing your 
insurance coverages now, you will only 
be able to "step up" one additional 
level of coverage per year -- until you 
reach your coverage limit -- if you want 
higher levels of coverage in the future.  
In short, this is a one time offer.  You 
can either take advantage of the current 
enrollment period to increase your life 
and AD&D insurances significantly or 
wait until future years to increase 
coverages on a slower year to year 
basis.  (Emphasis added.)
 
	The dispute is whether the supplemental insurance 
offered to all the employees was the same as the coverage 
offered to the frozen group; specifically, did the 
supplemental coverage include life and AD&D?  John Hancock 
claims the supplemental coverage only included life 
insurance, and it points to the differing language in each 
group's policies to support its position.[fn3] 
	Dr. Curcio's salary made him eligible to purchase 
the maximum amount of coverage, which he did.  Capital 
Health charged him bi-weekly premiums of $6.00 for this 
coverage.  The record indicates, and the district court so 
found, that Dr. Curcio believed his coverage to include both 
life and AD&D insurance.  On August 5, 1991, Dr. Curcio died 
in an automobile accident.   
	A representative from Capital Health, James Henry, 
made an inquiry by telephone to John Hancock regarding a 
determination of benefits due Mrs. Curcio.  Then Assistant 
Sales Manager, Richard Lintner, responded that Dr. Curcio 
had $400,000 in coverage ($50,000 basic life, $50,000 basic 
AD&D, $150,000 supplemental life, and $150,000 supplemental 
AD&D).  	
	Shortly thereafter John Hancock recanted its oral 
representation of coverage and expressed, before a claim was 
filed, that its preliminary determination was incorrect and 
that Dr. Curcio had $150,000 in supplemental life coverage 
only, giving his beneficiary a total benefits package of 
$250,000.  John Hancock claimed that employees in Dr. 
Curcio's position never had the opportunity to purchase 
supplemental AD&D coverage, and even if they did, Dr. Curcio 
only paid premiums for $150,000 in supplemental life 
coverage.[fn4]    
	Subsequently, Mrs. Curcio filed a claim with John 
Hancock for proceeds due.  John Hancock tendered a check to 
her in the amount of $250,000.  Mrs. Curcio initiated this 
lawsuit to recover an additional $150,000 in supplemental 
AD&D benefits.

	II.
	The district court concluded that the terms of the 
policy were ambiguous and, applying the doctrine of contra 
proferentum, granted summary judgment against John Hancock 
in favor of Mrs. Curcio.[fn5]   John Hancock appeals.
	The district court also held that Capital Health 
was not a proper party under ERISA because it was neither a 
benefit plan nor a fiduciary, which resulted from the 
district court's finding of a lack of discretion over the 
determination of benefits under the plan.  Thus the district 
court granted Capital Health's motion for summary judgment.  
Mrs. Curcio appeals this order as an alternative theory of 
recovery.
	We have jurisdiction pursuant to 28 U.S.C.  1291, 
and our standard of review is plenary.  Fischer v. 
Philadelphia Elec. Co., 994 F.2d 130, 132-33 (3d Cir. 1993).  
Our task is to determine whether, viewing the evidence in 
the light most favorable to the non-moving party, there 
exists a genuine issue of material fact such that a 
reasonable factfinder could return a verdict for that 
party.[fn6]   Id. (quoting Anderson v. Liberty Lobby, Inc., 
477 U.S. 242, 248 (1986)). 

	III.
	We turn first to Mrs. Curcio's claim against John 
Hancock Mutual Life Insurance Company.  The parties concur 
that the only basis upon which recovery can be had against 
John Hancock is if there is coverage under the policy that 
it issued.  The district court, utilizing the doctrine of 
contra proferentum, found coverage to exist.  This is a 
question of law subject to plenary review on appeal.  Taylor 
v. Continental Group, 933 F.2d 1227, 1232 (3d Cir. 1991).
	The contra proferentum doctrine holds that 
ambiguities in an insurance policy are to be resolved in 
favor of the insured.  Heasley v. Belden & Blake Corp., 2 
F.3d 1249, 1257 (3d Cir. 1993).  We look to the number of 
reasonable interpretations a given contract, provision, or 
term may receive in determining ambiguity.  Taylor, 933 F.2d 
at 1232.  If we find but one reasonable interpretation, then 
a fortiori there can be no ambiguity.  However, if the 
language is susceptible to more than one reasonable 
interpretation, then it will be found to be ambiguous.  
Stendardo v. Federal Nat'l Mortgage Ass'n,  991 F.2d 1089, 
1094 (3d Cir. 1993).
	Here the district court held:
	In this case, we conclude that 
reasonable persons reading the plan 
descriptions for the basic life 
insurance and the supplemental life 
insurance could fairly come to either of 
the following conclusions:  (1) that 
AD&D coverage is inherent in the phrase 
"life insurance" such that any 
supplemental life insurance purchased 
would automatically include AD&D 
coverage, or (2) that because AD&D is 
specifically referred to in the basic 
plan and not in the supplemental, it was 
simply not a part of the latter.  While 
our determination that the language is 
ambiguous hinges on an objective reading 
of the challenged passage, we find 
support for this result in the confusion 
among the defendants in the days and 
weeks following Dr. Curcio's death.

Slip op. at 11-12.  We disagree with the district court's 
analysis in two respects.  First, our review of the policy 
does not reveal an ambiguity.  Capital Health seems to have 
created the ambiguity.  Second, the term "life insurance," 
when given its fundamental and universally accepted meaning, 
does not include AD&D coverage.  Although our role here is 
to determine whether there are two possible meanings, were 
we given the task of interpreting the term, we would hold 
that the certainty and predictability that a literal 
construction of the term "life insurance" would provide 
would better serve the purposes of ERISA.  Cf. Rolhman v. 
Hawkeye-Security Insurance Co., 502 N.W.2d 310 (Mich 
1993)(giving a literal construction to the term "occupant" 
in interpreting the Michigan no-fault act). 
	The record reveals that the original policy 
applicable to Dr. Curcio clearly differentiated between life 
insurance and AD&D insurance.  In the table of contents 
under the heading of "COVERAGES," there were two entries.  
Each was discussed separately, the policy set forth two 
different filing instructions for each respective claim, 
each had different termination periods, and the payment of 
benefits to beneficiaries was provided for separately.  Most 
importantly, life insurance benefits were to be paid upon 
proof of death; however, AD&D benefits were payable in the 
event of an accident resulting in an enumerated injury or 
death.  The two are mutually exclusive, that is, one could 
exist without the other.  Suggesting that life insurance 
would include AD&D coverage is inconsistent with their basic 
definitions.
	When Capital Health asked that supplemental 
insurance be made available to all employees, the policy was 
amended accordingly.  First, an amendment which described 
the schedule for the supplemental coverage was added to the 
original policy, which discussed life insurance only.  
Subsequently a new policy was issued.  This policy, similar 
to the original, had separate entries for life and AD&D 
coverage.  In setting forth the basic coverage in the master 
schedule, the new policy mimicked the original.  It stated 
in pertinent part:

	BASIC INSURANCE (Non-Contributory)*
	Life, Accidental Death and Dismemberment Insurance
Class		Life				AD&D (Full Amount)

	The very next page described the newly offered 
supplemental life coverage.  Unlike the previous page, it 
stated:

	SUPPLEMENTAL INSURANCE (Contributory)
	Life Insurance

The headings on these pages make clear that the supplemental 
insurance included only life coverage, not AD&D.  Similar to 
the original policy, the new policy also distinguished 
between life and AD&D coverage.  It contained two different 
entries in the table of contents, life and AD&D were 
discussed separately in the text, the policy set forth two 
different filing instructions for each respective claim, 
each had different termination periods, and the payment of 
benefits to beneficiaries was provided separately.  
Additionally, the new policy clearly set forth a 90 day 
waiting period for basic life and AD&D coverage, but 
required 30 days for the supplemental life insurance.  The 
supplemental life coverage terminated at age 70, contrary to 
AD&D and basic life.
	The foregoing policies and amendments were 
provided to Capital Health, but there is no evidence that 
Capital Health ever distributed them to its employees.  In 
fact, it appears that when John Hancock offered to Capital 
Health copies of the policies and their amendments to give 
to the employees, Capital Health declined.  Rather, Capital 
Health chose to make and distribute its own summaries.  As 
we discuss infra, it was Capital Health's summary of the new 
policy that created the confusion.
	Therefore, we conclude that John Hancock's 
insurance policies were not ambiguous.  Further, the 
district court's suggested interpretation of the term life 
insurance is overly broad; life insurance does not 
inherently include AD&D insurance.  The district court erred 
in the initial steps of its analysis.  Thus, we will reverse 
the district court's order granting Mrs. Curcio's motion for 
summary judgment with respect to John Hancock and enter an 
order granting judgment in its favor.[fn7] 
	We turn now to the issues involving Capital 
Health.

	IV.
	ERISA provides:
	[A] person is a fiduciary with respect 
to a plan to the extent (i) he exercises 
any discretionary authority or 
discretionary control respecting 
management of such plan or exercises any 
authority or control respecting 
management or disposition of its assets, 
(ii) he renders investment advice for a 
fee or other compensation, direct or 
indirect, with respect to any moneys or 
other property of such plan, or has any 
authority or responsibility to do so, or 
(iii) he has any discretionary authority 
or discretionary responsibility in the 
administration of such plan.

29 U.S.C.  1002(21)(A).[fn8]   
	Capital Health argues that ERISA only permits 
suits to recover benefits against the plan as an entity and 
against the fiduciary of the plan, and because Capital 
Health is neither of these, it is not a proper party under 
ERISA.  Gelardi v. Pertec Computer Corp., 761 F.2d 1323, 
1324-25 (9th Cir. 1985) (citing  1132(d), 1109(a) and 
1105).  The district court agreed with Capital Health that 
it is neither a "plan" nor a fiduciary.  We believe it self 
evident that Capital Health is not a "plan;" however, we 
take issue with the failure to find fiduciary status.  
	We agree with the district court that the linchpin 
of fiduciary status under ERISA is discretion.  Here the 
district court found that "John Hancock's refusal to follow 
Capital Health's directive indicates that the employer 
wielded no discretionary authority over the granting of 
benefits."  Slip op. at 11.  Thus it concluded that Capital 
Health could not be held liable for Curcio's benefits.  It 
appears the district court relied on the second phrase of 
subsection (i) above, "authority or control respecting 
management or disposition of its assets," as the basis for 
its decision.  29 U.S.C.  1002(21)(A)(i).  Unfortunately, 
the court failed to examine how the first phrase of 
subsection (i), respecting the management of the plan, or 
subsection (iii), the plan's administration, might affect 
Capital Health's fiduciary status.[fn9]   This is where we 
continue the analysis.
	Our task, simply stated, is to resolve whether 
Capital Health maintained any authority or control over the 
management of the plan's assets, management of the plan in 
general, or maintained any responsibility over the 
administration of the plan.  If we find such to be the case, 
we have a fortiori found Capital Health to be a fiduciary.  
We start from the standpoint that we have previously held 
that ERISA broadly defines a fiduciary.  Smith v. Hartford 
Ins. Group, 6 F.3d 131, 141 n.13 (3d Cir 1993).  See also H. 
Stennis Little, Jr. and Larry T. Thrailkill, Fiduciaries 
Under ERISA: A Narrow Path to Tread, 30 Vand. L. Rev. 1, 4 
(1977).
	In Smith we found a hospital that gave assurances 
of continued coverage after changing health plans to be a 
fiduciary responsible for its employees' loss in benefits 
when the new plan failed to cover a disabled employee.  We 
noted that fiduciary status under ERISA is broadly defined 
and held that the circumstances of that case dictated our 
finding that the hospital was a fiduciary.  Smith, 6 F.3d at 
141 n.3.  The particular circumstances of Smith are similar 
to our facts here.  After the hospital decided to replace 
its Blue Cross/Blue Shield policy with a self-funded 
insurance plan and because the employees had the option to 
convert to an individual Blue Cross/Blue Shield policy 
instead of enrolling in the new plan, the hospital's 
personnel director conducted seminars to help employees make 
their choices.  Id. at 135-36.  On the basis of these 
actions, we found the hospital to have fiduciary status.
	Similarly, in Genter v ACME Scale & Supply Co., 
776 F.2d 1180 (3d Cir. 1985), we held that ACME Scale & 
Supply met the ERISA definition of fiduciary as an employer-
administrator of the plan at issue.  Id. at 1184.  We found 
that the employer exercised discretionary authority and 
control in managing the plan by notifying certain employees 
when they were eligible for an increase in life insurance 
coverage not explained in the terms of the plan.  Id. at 
1184-85.  The employer's failure to notify all employees 
generally was deemed a breach of the fiduciary duty ERISA 
imposes.  Id. at 1185-86.  See also Fischer v. Philadelphia 
Elec. Co., 994 F.2d 130, 133 (3d. Cir. 1993) (finding 
employer to have fiduciary status solely on the basis of its 
role as plan administrator under ERISA); Hozier v. Midwest 
Fasteners, Inc., 908 F.2d 1155, 1158 (3d Cir. 1990) (holding 
that when employers serve as plan administrators, they 
assume the role of fiduciary under ERISA).[fn10] 
	ERISA makes clear that a fiduciary is one that 
maintains discretionary authority or discretionary 
responsibility in the administration of the plan.[fn11]   
ERISA defines "administrator" as "the person specifically so 
designated by the terms of the instrument under which the 
plan is operated."   1002(16)(A)(i) (other definitions are 
stated, but are not applicable here).  Capital Health, in 
its employee benefits booklet, labels itself as the plan 
administrator.[fn12]   It seems obvious to us that a plan 
administrator has responsibility in the administration of 
the plan.  H. Stennis Little, Jr. and Larry T. Thrailkill, 
Fiduciaries Under ERISA: A Narrow Path to Tread, 30 Vand. L. 
Rev. 1, 6 (1977).  
	Here Capital Health announced the new plan to its 
employees through literature and meetings.  Indeed, at the 
plan's inception John Hancock offered to print booklet 
certificates for each and every employee, but Capital 
declined.  Capital Health chose to print and distribute its 
own booklet certificates describing the plan and each of the 
plan's amendments.  The general information section of the 
Choice Plus Booklet distributed by Capital Health stated 
that the plan would be administered through the Employee 
Relations Department of Capital Health Systems.  It further 
stated that Capital Health could modify or amend the plan at 
any time at its sole discretion, and that Capital Health 
could terminate the plan at any time.  Finally, the 
information provided that a covered person's benefits may 
not be assigned, except by the consent of Capital Health.  
The Supreme Court has held that "one is a fiduciary to the 
extent he exercises any discretionary authority or control."  
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113 
(1989).
	We conclude that Capital Health maintained 
sufficient discretionary authority and responsibility in the 
administration of the plan so as to satisfy the statutory 
definition of a fiduciary,  1002(21)(A)(iii), thus making 
it a proper party under ERISA.[fn13]   Therefore, we need 
not address Curcio's contention that ERISA permits suits 
against parties other than plans and fiduciaries.[fn14] nn  
We caution in passing, as we have before, that the district 
courts should not easily fashion additional ERISA claims and 
parties outside congressional intent under the guise of 
federal common law.  Plucinski v. I.A.M. Nat'l Pension Fund, 
875 F.2d 1052, 1056 (3d Cir. 1989).

	V.
	We have held that an employer can be liable under 
ERISA in its fiduciary capacity for making affirmative 
misrepresentations on breach of fiduciary duty and equitable 
estoppel theories.  Fischer v. Philadelphia Elec. Co., 994 
F.2d 130, 133-35 (3d Cir. 1993).  See also Haberern v. Kaupp 
Vascular Surgeons Ltd. Defined Benefit Pension Plan, No. 93-
1892, slip op. at 23 (3d Cir. 1994); Smith v. Hartford Ins. 
Group, 6 F.3d 131, 141 n.13 (3d Cir. 1993).  Here Mrs. 
Curcio primarily presents an equitable estoppel claim, which 
is authorized under ERISA pursuant to  1132(a)(3)(B) set 
forth above.  Bixler v. Central Pa. Teamsters Health & 
Welfare Fund, 12 F.3d 1292, 1298 (3d Cir. 1993) (holding 
that  1132(a)(3)(B) authorizes the award of appropriate 
equitable relief to a beneficiary for violations of 
ERISA).[fn15]   She alternatively argues that Capital Health 
is subject to liability for breach of its fiduciary duty 
pursuant to  1109.[fn16] 
	We turn first to Mrs. Curcio's primary argument 
that Capital Health's representations made in describing its 
new plan to its employees give rise to an equitable estoppel 
claim under ERISA.  To succeed under this theory of relief, 
an ERISA plaintiff must establish (1) a material 
representation, (2) reasonable and detrimental reliance upon 
the representation, and (3) extraordinary circumstances.  
Smith v. Hartford Ins. Group, 6 F.3d 131, 137 (3d Cir. 1993) 
(citing Gridley v. Cleveland Pneumatic Co., 924 F.2d 1310, 
1319 (3d Cir. 1991)).  The district court did not address 
Mrs. Curcio's estoppel claim, presumably because it found 
Capital Health to be an improper party under ERISA.  The 
determination of an equitable estoppel claim is a mixed 
question of law and fact.  Fischer, 994 F.2d at 135.  Here 
the parties do not dispute the facts -- the written record 
contains all the evidence.  Indeed, in presenting their 
motions for summary judgment, the parties stipulated that 
the district court adjudicate all claims without trial 
solely on the basis of the written record, including the 
resolution of any material issues of fact.  Having found 
Capital Health to be a proper party, we now turn to her 
equitable theory.[fn17] 

	A.
	First, Mrs. Curcio must show that Capital Health 
made material representations.  Capital Health's 
representations regarding supplemental life and supplemental 
AD&D insurance began with an audio-visual presentation that 
Capital Health made in an effort to solicit its employees to 
enroll in its new insurance program entitled "New Choice 
Plus Flexible Benefits Plan."  The audiotape, which was 
accompanied by slides, stated in pertinent part:
	In short, this is a one time offer.  You 
can either take advantage of the current 
enrollment period to increase your life 
and AD&D insurances significantly or 
wait until future years to increase 
coverages on a slower year to year 
basis.  (Emphasis added.)

	This was not the only time Capital Health 
discussed life and AD&D insurance together.  In the summary 
plan description that Capital Health furnished to its 
employees for the original coverage, the section describing 
the amounts of insurance coverage discussed life and AD&D as 
separate coverages.  Nonetheless, in stating the amount of 
coverage, the summary plan document stated that the AD&D 
coverage would be "[a]n amount equal to your Term Life 
Insurance."  When Capital Health made Choice Plus available, 
the plan that provided supplemental life and AD&D coverages, 
rather than provide a formal amendment to the summary plan 
description, it furnished a pamphlet with a section entitled 
"Group Life & AD&D Insurance Coverages."  Cf. Gridley v. 
Cleveland Pneumatic Co., 924 F.2d 1310 (3d Cir. 1991) 
(overview brochure did not meet ERISA requirements for 
supplemental summary plan description).  This section 
begins:
	The Capital Health System provides all 
employees scheduled to work at least 16 
hours a week with Basic Group Life 
Insurance and Accidental Death and 
Dismemberment (AD&D) Insurance at no 
cost.

	With Choice Plus you also have the 
opportunity to purchase additional 
amounts, up to three times your Base 
Annual Earnings, at low group rates.

Finally, this section of the pamphlet concludes:

	This pamphlet highlights the Group Life 
Insurance and Accidental Death and 
Dismemberment Insurance coverages 
available to you.  For more detailed 
information on your plans, you should 
refer to your Summary Plan Descriptions 
covering them.  If questions arise, the 
Legal Plan Documents will govern in all 
cases.

	Although the foregoing is a general summary of the 
coverages discussed in this section of the pamphlet, 
coupling this information, which describes the coverages as 
separate but related, with the other information furnished 
to the employees, it was reasonable for Dr. Curcio to 
conclude that both life and AD&D insurance would continue to 
be made available in equal amounts, that is, in supplemental 
form.  Cf. 29 U.S.C.  1024(b)(1)(A) (requires that material 
modifications be written in a manner calculated to be 
understood by the average plan participant).  Genter v. Acme 
Scale & Supply Co., 776 F.2d 1180, 1185 (3d Cir. 1985) 
(holding that a "summary plan description must not mislead, 
misinform, or fail to inform participants and beneficiaries 
of the Plan").  See also Bower v. Bunker Hill Co., 725 F.2d 
1221, 1224-25 (9th Cir. 1984)(misleading summary plan 
description coupled with management misrepresentations 
precluded summary judgment for employer).
	Nevertheless, the question is whether these 
representations are material.  We have held that any 
provision of a plan subject to ERISA that establishes a 
benefit is a material term of the plan.  Baker v. Lukens 
Steel Co., 793 F.2d 509, 512 (3d Cir. 1986).  Here Capital 
Health was actually representing that the plan was offering 
a new benefit; thus, we find that the representations 
Capital Health made were "material representations."  See 
also Fischer v. Philadelphia Elec. Co., 994 F.2d 130, 135 
(3d. Cir. 1993) ("[A] misrepresentation is material if there 
is a substantial likelihood that it would mislead a 
reasonable employee in making an adequately informed 
decision . . . .").
	B.
	Second Mrs. Curcio must demonstrate reasonable and 
detrimental reliance upon the representations Capital Health 
made.  This factor, which is generally referred to as 
reliance, has within it two subfactors: reasonableness and 
injury.  Smith, 6 F.3d at 137.[fn18]   Mrs. Curcio testified 
in a sworn statement that she and her husband discussed the 
options available under the Choice Plus program, "including 
increasing the death and dismemberment coverage."  She 
testified that they had recently bought a home and because 
the coverage was so reasonably priced, they joked about his 
dying in an accident, her receiving double benefits, and 
paying off the mortgage.  Subsequent to this discussion, Dr. 
Curcio filled out an enrollment form electing the maximum 
amount of coverage.  This form referred only to "Group Life 
Insurance Options."  One month later, Dr. Curcio signed 
another form confirming his elections and the appropriate 
payroll deductions.  This second form did not distinguish 
between life and AD&D coverage for either basic or 
supplemental benefits.
	In Smith we held that the plaintiff's conclusory 
allegations that the Smiths could have obtained alternative 
coverage, without more, were insufficient to withstand 
summary judgment.  Smith, 6 F.3d at 137.  Here we find the 
meeting between Dr. and Mrs. Curcio significant.  There is 
more than conclusory statements; the Curcios had an actual 
discussion about the protection being afforded through the 
purchase of additional AD&D insurance.  For these reasons we 
conclude that the Curcios have suffered an injury in giving 
up an opportunity to accommodate their insurance needs 
through an independent insurance carrier because of their 
reasonable reliance on Capital Health's representations.  
Cf. McKnight v. Southern Life and Health Ins. Co., 758 F.2d 
1566, 1570 (11th Cir. 1985) ("It is of no effect to publish 
and distribute a plan summary booklet designed to simplify 
and explain a voluminous and complex document, and then 
proclaim that any inconsistencies will be governed by the 
plan.  Unfairness will flow to the employee for reasonably 
relying on the summary booklet.")

	C.
	Finally, Mrs. Curcio must demonstrate the 
existence of extraordinary circumstances.  We have not 
specifically defined this term, rather we rely on caselaw to 
establish its parameters.  In Rosen v. Hotel and Restaurant 
Employees and Bartender's Union, 637 F.2d 592 (3d Cir. 
1981), we found that extraordinary circumstances existed 
when the trustee of a pension fund advised Rosen that his 
pension was in jeopardy due to his employer's failure to 
make payments to the fund, allowed Rosen to write out a 
check for the remainder of the employer's debt, and 
deposited the check.  Id. at 598.  We held that the trustee 
was then estopped from asserting that Rosen's payment did 
not entitle him to his pension.  Id.  By contrast, in 
Gridley v. Cleveland Pneumatic Co., 924 F.2d 1310 (3d Cir. 
1991), Gridley, while continually and totally disabled in 
the hospital, increased his life insurance coverage under a 
plan that specifically required active, full-time status for 
such an increase.  Although the employer deducted additional 
amounts from his salary to cover the increase, we found that 
extraordinary circumstances did not exist when the insurance 
carrier refused the additional amount.  Id. at 1319 (citing 
Hozier v. Midwest Fasteners Inc., 908 F.2d 1155, 1165 n. 10 
(3d. Cir. 1990).    

	Under the facts of Smith, which are similar to our 
case here, we held that the fact finder could determine that 
extraordinary circumstances were established.  Smith, 6 F.3d 
at 142.  In Smith the hospital repeatedly made written and 
oral assurances that Mrs. Smith had a specific type of 
coverage.  Id.  Ironically, here we have another hospital 
misrepresenting the type of coverage for which recipients 
could enroll.  Capital Health compounded its error by 
reassuring Mrs. Curcio that she was covered in the amount of 
$400,000 after the accidental death of her husband.  In the 
face of such a tragic loss there is a certain degree of 
solace in knowing that financial woes are not on the 
horizon.  Although it was not in Capital Health's control, 
John Hancock contributed to the anguish by first confirming 
the coverage Mrs. Curcio expected and then disclaiming that 
such protection would be forthcoming.
	The roller coaster did not stop there.  Capital 
Health supported Mrs. Curcio's claim to the point of 
encouraging her to file suit, even offering to pay her legal 
fees.  It retained outside counsel to review the matter and 
offered his services to her without charge. It continually 
urged John Hancock to honor the supplemental AD&D, despite 
John Hancock's refusal.  Somewhere along the way Capital 
Health had a change of heart, for they now argue that 
supplemental AD&D was never offered in the first place.  
	These events in our view are demonstrative of 
extraordinary circumstances.  Thus, having satisfied the 
elements of her equitable estoppel claim and there being no 
reason to remand for further factual development, we 
conclude that Mrs. Curcio has established Capital Health's 
liability to her in the amount of $150,000.[fn19]   
Alternatively, we now briefly address Mrs. Curcio's argument 
regarding breach of fiduciary duty. 

	VI. 
	In Fischer we held that a plan administrator may 
not materially misrepresent, either negligently or 
intentionally, modifications to an employee pension benefits 
plan.  "Put simply, when a plan administrator speaks, it 
must speak truthfully."  Fischer, 994 F.2d at 135.  See also 
Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 
F.3d 1292, 1300 (3d Cir. 1993) (discussing fiduciary's duty 
not to misinform); Kurz v. Philadelphia Elec. Co., 994 F.2d 
136, 139 (3d Cir. 1993) (discussing the holding in Fischer).  
We further held in Fischer that material misrepresentations 
would subject a plan administrator to liability for breach 
of its fiduciary duty.  Fischer, 994 F.2d at 133-34 (citing 
Payonk v. HMW Indus., Inc., 883 F.2d 221 (3d Cir. 1989)).  
We have just found Capital Health responsible for making 
material misrepresentations for purposes of an equitable 
theory of relief.  It is thus a short step to conclude that 
Capital Health breached its fiduciary duty.
	Our analysis rests on the notion that a fiduciary 
is required to "discharge [its] duties with respect to a 
plan solely in the interest of the participants and 
beneficiaries."  29 U.S.C.  1104(a)(1).  See Fischer, 994 
F.2d at 133.  Clearly Capital Health did not do so.  
Therefore, we hold that Mrs. Curcio's alternate argument 
provides additional support for our conclusion that Capital 
Health is liable to Mrs. Curcio for the $150,000 in 
supplemental AD&D.

	VII.
	On the basis of the foregoing, we will reverse in 
part and affirm in part the district court's order.  We will 
reverse that part of the order which denied John Hancock's 
motion for summary judgment and granted it in favor of 
Capital Health.  We will affirm that part of the court's 
order which granted Mrs. Curcio's motion for summary 
judgment and entered judgment in her favor, but we will 
reverse the judgment entered against John Hancock and enter 
it against Capital Health in the amount of $150,000.   

McKELVIE, District Judge, dissenting.
	I agree that the district court should grant 
summary judgment in favor of John Hancock.  However, I 
believe that this court should remand the claims against 
Capital Health for further proceedings.
	One could summarize the facts in this case as 
follows.  Capital promised its employees, including Dr. 
Curcio, a package of benefits.  Capital promised to set up a 
plan, to provide free life and AD&D insurance through the 
plan, and to make available the opportunity to purchase 
supplemental insurance.  Capital named itself the "Plan 
Administrator," and took on the responsibility of describing 
the terms of the plan to the beneficiaries.  Capital 
negotiated an insurance contract with John Hancock.  Hancock 
had no direct contact with the beneficiaries.  Capital 
collected payments from the employees, added its own 
contribution, and sent Hancock a lump sum payment every 
month.  The plan owns no relevant assets other than its 
contract with Hancock.  Dr. Curcio purchased as much life 
and AD&D insurance as was available, and named his wife as 
beneficiary.  Mrs. Curcio alleges, and Capital denies, that 
the supplemental insurance Capital promised to make 
available includes an additional $150,000 of AD&D coverage.  
Regardless of what Capital may have promised its employees, 
Hancock's contract with Capital does not obligate Hancock to 
pay supplemental AD&D benefits.
	Procedural Posture and Standard of Review
	In the district court, the parties filed motions 
for summary judgment.  The parties also stipulated that the 
district court could adjudicate all claims based solely on 
the written record without a trial, including the resolution 
of any material issues of fact.  The district court found as 
a matter of law that Capital is not liable and Hancock is 
liable.  The district court then entered summary judgment in 
favor of Mrs. Curcio and against Hancock, and in favor of 
Capital.  The district court did so without resolving the 
remaining issues of fact.
	Entry of summary judgment is only appropriate if 
when viewing the evidence in the light most favorable to the 
non-moving party, there is no genuine issue of material fact 
such that a reasonable factfinder could return a verdict for 
that party.  Slip op. at 7-8.  This court's review of an 
order granting summary judgment is plenary.  Fischer v. 
Philadelphia Elec. Co., 994 F.2d 130, 132 (3d Cir. 1993), 
cert. denied, 114 S.Ct. 622 (1993).  If genuine issues of 
material fact remain unresolved, they should be resolved by 
the trier of fact.  The district court is the trier of fact 
in this case.  An appellate court should not act as the 
factfinder, even where all evidence comes from documents.  
See Fed. R. Civ. P. 52(a) ("Findings of fact [by a trial 
judge], whether based on oral or documentary evidence, shall 
not be set aside unless clearly erroneous . . . .").
	Enforcement of Plan Benefits
	Mrs. Curcio argues that Capital promised to make 
available $150,000 in supplemental AD&D coverage, and that 
this promise is enforceable under the benefits enforcement 
section of ERISA.  See 29 U.S.C.  1132(a)(1)(B) ("A civil 
action may be brought . . . by a participant or beneficiary 
. . . to recover benefits due to him under the terms of his 
plan, to enforce his rights under the terms of the plan, or 
to clarify his rights to future benefits under the terms of 
the plan . . . .").  Capital argues that it did not make 
such a promise, and that in any event its promises are 
unenforceable because Capital is neither a plan nor a 
fiduciary.  The district court, relying on Gelardi, agreed 
with Capital that ERISA permits liability only against plans 
and fiduciaries.  See Gelardi v. Pertec Computer Corp., 761 
F.2d 1323, 1324-5 (9th Cir. 1985).
	I believe that ERISA does permit a person to sue 
an employer to enforce contractual promises made by the 
employer, regardless of whether or not the employer is a 
plan or a fiduciary.  See Murphy v. Heppenstall Co., 635 
F.2d 233 (3d Cir. 1980) (enforcing contractual rights 
against an employer where the plan is not a party), cert. 
denied, 454 U.S. 1142 (1982).  None of the sections of ERISA 
cited by the Gelardi court give any limitation on who may be 
sued.  See Lee v. Prudential Ins. Co. of America, 673 F. 
Supp. 998, 1003 (N.D.Cal. 1987).  Indeed, 29 U.S.C. 
 1132(d) expressly contemplates that a person other than a 
plan may be held liable.  One of Congress' primary purposes 
for enacting ERISA is "to protect contractually defined 
benefits."  Firestone Tire & Rubber Co. v. Bruch, 489 US 
101, 113 (1989).  I believe that permitting employees to sue 
their employers for allegedly breaking promises relating to 
a benefits plan is neither novel nor contrary to Congress' 
intent.  See Sprague v. General Motors Corporation, 768 F. 
Supp. 605, 612 (E.D.Mich. 1991).
	There is a genuine issue of fact regarding whether 
Capital promised to supply the Curcios with $150,000 of AD&D 
coverage.  The task of determining the terms of a plan, and 
interpreting those terms, should be left in the first 
instance to the trial court.  See Alexander v. Primerica 
Holdings, Inc., 967 F.2d 90, 96 (3d Cir. 1992).  I would 
therefore remand the case to the district court for further 
findings of fact.
	Equitable Estoppel
	I disagree with the majority's decision to grant 
summary judgment against Capital on the equitable estoppel 
cause of action.  Mrs. Curcio has not established that there 
is no genuine issue of material fact as to all elements of 
this claim.
	An ERISA beneficiary may recover benefits under an 
equitable estoppel theory "upon establishing a material 
representation, reasonable and detrimental reliance upon the 
representation, and extraordinary circumstances."  Smith v. 
Hartford Ins. Group, 6 F.3d 131, 137 (3d Cir. 1993); cf. 
Restatement, Second, Contracts  90 (common law doctrine of 
promissory estoppel).  Mrs. Curcio testified by affidavit 
that in the fall of 1990 her husband told her that he had 
seen a video tape at work, the video tape described his 
insurance benefits, and it was his understanding that these 
benefits included extra AD&D insurance.  The majority finds 
that the representations made on this tape were material, 
that the Curcios reasonably relied on these representations 
to their detriment, and that extraordinary circumstances 
exist in this case.  The district court did not make 
findings on these questions.
	A trier of fact could find that it would not be 
reasonable for the Curcios to rely on the representations in 
the video presentation.  The majority quotes from a pamphlet 
which Capital distributed to its employees.  Slip op. at 22-
23.  A section of this pamphlet, titled "GROUP LIFE & AD&D 
Insurance Coverages," contains a subsection titled "An 
Opportunity to Purchase Supplemental Amounts of Insurance 
Coverages."  The first sentence of this subsection states, 
"Through Choice Plus, you can purchase additional amounts of 
Group Life insurance at low group rates."  There is no 
mention of any opportunity to purchase additional amounts of 
AD&D.  Louise Reich, an employee of Capital, testified by 
affidavit that Dr. Curcio would have received a copy of a 
"Physician Fringe Benefit Summary."  The Summary states that 
a physician may purchase "additional supplemental life," but 
does not mention any opportunity to purchase additional 
AD&D.  A trier of fact may, or may not, find it reasonable 
to rely on one's memory of a taped presentation which may be 
in conflict with written materials.
	To establish the elements of detrimental reliance, 
a plaintiff must show that the defendant's representations 
induced action or forbearance, and that the plaintiff was 
harmed by this action or forbearance.  Restatement, Second, 
Contracts  90; see also Gridley v. Cleveland Pneumatic Co., 
924 F.2d 1310, 1319 (3d Cir. 1991), cert. denied, 111 S.Ct. 
2856 (1991).  Mrs. Curcio has failed to present any evidence 
of detrimental reliance.  The majority, finding that the 
Curcios did detrimentally rely on Capital's representations, 
seems to employ the following reasoning: Mrs. Curcio 
testified that she and her husband believed they had the 
opportunity to purchase supplemental AD&D insurance through 
Capital's benefits program.  Therefore, they had the 
opportunity to purchase additional insurance through an 
independent insurance carrier.  Therefore, they would have 
purchased additional AD&D coverage if only they had known 
that the death benefits provided by Hancock totalled 
$250,000, and not $400,000.  See slip op. at 24-26.
	As in Smith, there is no evidence that the Curcios 
could have obtained AD&D coverage from an independent 
insurance carrier.  Cf. Smith, 6 F.3d at 137 ("the Smiths' 
conclusory allegations that they could have obtained 
alternative coverage, without more, were insufficient to 
withstand summary judgment").  Furthermore, there is no 
evidence that the Curcios had any intention of seeking 
insurance from an independent carrier.  Mrs. Curcio has not 
proven that representations in the video tape caused 
detrimental reliance; there is no evidence that the 
representations induced any act or forbearance.
	The majority concludes that extraordinary 
circumstances exist in this case, in part because it finds 
that the inconsistent positions taken by the defendants 
after Dr. Curcio's death forced Mrs. Curcio to embark on a 
roller coaster ride of anguish.  Slip op. at 26-27.  Several 
aspects of this portion of the majority's opinion are 
troubling.  First, there seems to be no standard for 
determining what makes an event "extraordinary," nor does 
the majority attempt to define a standard.  It appears that 
when courts first recognized equitable estoppel as a cause 
of action in ERISA cases, the element of "extraordinary 
circumstances" was added in order to protect the actuarial 
soundness of pension funds.  See Rosen v. Hotel and 
Restaurant Emp., Etc., 637 F.2d 592, 598 (3d Cir. 1981), 
cert. denied, 454 U.S. 898 (1981); Phillips v. Kennedy, 542 
F.2d 52, 55 n. 8 (8th Cir. 1976).  In a case where a fund is 
a defendant, a court could at least balance the desire to 
make the plaintiff whole against the need to ensure that the 
fund had sufficient assets to satisfy its obligation to 
future claimants.  Here, where no fund is involved, the 
nebulous term "extraordinary" loses what definition it had, 
as there is no longer any stated purpose for the existence 
of the element.
	Second, the case for finding extraordinary 
circumstances seems rather weak.  In support of its 
conclusion that extraordinary circumstances exist, the 
majority makes the following arguments: (1) Capital 
misrepresented the Curcio's insurance coverage; (2) Capital 
repeated that mistake after Dr. Curcio died; (3) Hancock 
made the same mistake after Dr. Curcio died; (4) these 
mistakes caused Mrs. Curcio to experience anguish; and (5) 
for a while, Capital attempted to help Mrs. Curcio recover 
the disputed $150,000 from Hancock.  See slip op. at 26-27.  
As every plaintiff in an estoppel case must prove 
detrimental reliance on a material representation, the fact 
that Capital made a misrepresentation could not possibly be 
an extraordinary event.  The fact that Capital repeated its 
mistake after Dr. Curcio died may be unfortunate, but it is 
beyond dispute that at that point it was too late to make 
other insurance arrangements.  There is no evidence in the 
record that Mrs. Curcio suffered anguish, or any other harm, 
from the mistakes made after Dr. Curcio's death.  It seems 
strange to penalize Capital for mistakes made by Hancock, 
and even stranger to penalize Capital for attempting to help 
Mrs. Curcio recover the benefits she claimed.
	Third, the existence of extraordinary 
circumstances should be determined by the trier of fact.  
See Smith, 6 F.3d at 142.  I do not think that the 
circumstances identified by the majority are so extreme in 
this case as to warrant this court finding that 
extraordinary circumstances exist.
	Finally, even if Mrs. Curcio could prove all 
elements of her estoppel claim, the recovery may be less 
than $150,000.  Full enforcement of a promise is often 
appropriate in an estoppel case.  However, depending on the 
facts of the case, it may be appropriate to limit the 
recovery.  See Restatement, Second, Contracts  90 Comment 
d.  Equitable estoppel is an equitable doctrine, and is 
subject to the discretion of the trial court.  See Bechtel 
v. Robinson, 886 F.2d 644, 647 (3d Cir. 1989) ("when a trial 
court makes an equitable assessment after the operative 
facts are established, we review that assessment for abuse 
of discretion."); Plucinski v. I.A.M. Nat. Pension Fund, 875 
F.2d 1052, 1053 (3d Cir. 1989) ("because the district court 
did not address the equities . . . we remand for a 
development of the record, and for the district court to 
exercise its equitable discretion").
	Misrepresentation
	The majority states, correctly, that "a plan 
administrator may not materially misrepresent, either 
negligently or intentionally, modifications to an employee 
pension benefits plan."  Slip op. at 28.  The majority then 
finds that Mrs. Curcio established her claim for negligent 
misrepresentation.  The majority makes no attempt to show 
why summary judgment is appropriate on the issue of whether 
or not Capital made its representations negligently or 
intentionally.  The trier of fact should determine these 
questions in the first instance.
	Furthermore, even if Mrs. Curcio does establish 
all elements of this cause of action, it is far from clear 
that she should receive an award of $150,000.  The amount of 
damages for negligent misrepresentation by a fiduciary is 
not necessarily measured by the content of the 
misrepresentation, but by the damage caused to the 
beneficiary or by the profit received by the fiduciary as a 
result of the misrepresentation.  Restatement, Second, 
Trusts  205 Comment a.  There is no evidence that Capital 
gained by its representations.  As discussed above, there is 
also no evidence that Mrs. Curcio would have received 
greater death benefits but for Capital's misrepresentations.  
Therefore, it is inappropriate to direct the district court 
to award $150,000 on this claim on a motion for summary 
judgment.
	Conclusion
	The trial court granted Mrs. Curcio's motion for 
summary judgment against Hancock, and granted Capital's 
motion for summary judgment against Mrs. Curcio.  The 
majority disagrees with both decisions, yet instead of 
reversing both decisions it purports to affirm the judgment 
in favor of Mrs. Curcio and reverse on the question of which 
defendant loses.  I would reverse both grants of summary 
judgment, direct that summary judgment be entered in favor 
of Hancock and against Mrs. Curcio, and remand for further 
proceedings on Mrs. Curcio's claims against Capital.
	I respectfully dissent.

Footnotes

[fn1] .  	Prior to October, 1989, Capital Health contracted with 
Phoenix and Prudential Insurance Companies for its employee insurance 
program.  In the summer of 1989 Capital Health hired Coopers & Lybrand 
to interview various other insurance companies in an effort to acquire a 
new plan.  Coopers & Lybrand negotiated the agreement with John Hancock 
on behalf of Capital Health.
[fn2] .  	John Hancock asserts that originally it did not intend to 
provide to the frozen group a policy containing additional AD&D 
benefits.  Although those additional benefits were never negotiated with 
Capital Health, because John Hancock was receiving an additional amount 
in premiums above that which was expected for the life coverage and 
which seemed to represent an AD&D premium, John Hancock agreed to add 
AD&D to the frozen group's coverage.  John Hancock issued a new policy 
indicating the change.
[fn3] .  	Just as in the frozen group's situation a year earlier, John 
Hancock issued new policies to reflect the change in coverage.  However, 
unlike the frozen group's premiums, John Hancock argues that the 
premiums for the general group's new policy only included payments for 
life coverage. 
[fn4] .  	Initially Capital Health argued to John Hancock that 
additional AD&D benefits were included in the contributory plan and 
encouraged Mrs. Curcio to file suit against John Hancock to challenge 
the determination of benefits under the policy.  Capital Health urged 
John Hancock to honor the additional AD&D amount, but John Hancock 
refused.  Subsequently, Capital Health changed its position and now 
contends that the additional AD&D was never included in the policy.
[fn5] .  	This suit was originally filed in the Court of Common Pleas 
of Dauphin County, Pennsylvania.  Because Mrs. Curcio's claims were 
governed by ERISA, John Hancock removed the case to the United States 
District Court for the Middle District of Pennsylvania pursuant to 28 
U.S.C.  1441.  An amended complaint was filed on July 16, 1992, 
asserting theories of relief grounded in ERISA.    
[fn6] .  	In presenting their motions for summary judgment, the 
parties stipulated that the district court adjudicate all claims without 
trial solely on the basis of the written record, including the 
resolution of any material issues of fact.
[fn7] .  	Because we find that the insurance policy is not ambiguous, 
we need not address the parties' arguments regarding the district 
court's use of the contra proferentum doctrine.  We note in passing that 
any question about the use of this doctrine in ERISA cases that was left 
open in Taylor v. Continental Group, 933 F.2d 1227 (3d Cir. 1991) was 
answered in our decision in Heasley v. Belden & Blake Corp., 2 F.3d 1249 
(3d Cir. 1993).
[fn8] .  	It is without doubt that the insurance policy at issue here 
is part of an employee benefit plan within the meaning of ERISA.  29 
U.S.C.  1002(1) and (3).  In order to comply with ERISA requirements, 
29 U.S.C.  1022, Capital Health published to its employees a Statement 
of ERISA Rights and a list of General Provisions and Information.  
Further, John Hancock asserted in paragraph four of its motion to remove 
this case to federal court that the life insurance policy is an employee 
welfare plan subject to the provisions of ERISA.  

[fn9] .  	Subsection (ii) does not seem to apply nor does Mrs. Curcio 
so argue. 
[fn10] .  	We have previously summarized the law in this area as 
follows:

	[W]here an administrator of a plan decides matters required in 
plan administration or involving obligations imposed upon the 
administrator by the plan, the fiduciary duties imposed by ERISA attach.  
Where, however, employers conduct businesses and make business decisions 
not regulated by ERISA, no fiduciary duties apply.  And, when employers 
wear "two hats" as employers and as administrators ". . . they assume 
fiduciary status `only when and to the extent' that they function in 
their capacity as plan administrators, not when they conduct business 
that is not regulated by ERISA."  

Payonk v. HMW Industries, Inc., 883 F.2d 221, 225 (3d Cir. 1989) 
(citations omitted).
[fn11] .  	Section 1102(a)(1) states that "[e]very employee benefit 
plan . . . shall provide for one or more named fiduciaries who jointly 
or severally shall have authority to control and manage the operation 
and administration of the plan."  Section 1102(a)(2) further states that 
"the term 'named fiduciary' means a fiduciary who is named in the plan 
instrument, or who, pursuant to a procedure specified in the plan, is 
identified as a fiduciary."  We have been unable to locate, nor do the 
parties point out, the "named fiduciary" of the Capital Health plan.
[fn12] .  	Capital Health calls to our attention a case from the Ninth 
Circuit that it claims supports its position that it is not a fiduciary.  
Gelardi v. Pertec Computer Corp., 761 F.2d 1323 (9th Cir. 1985).  
Gelardi is easily distinguishable for, unlike our case, the employer 
relinquished its role as plan administrator by hiring an outside 
corporation to administer the plan; and as a result, the Ninth Circuit 
held that the employer was not "a fiduciary because it retained no 
discretionary control over the disposition of claims."  Id. at 1325.  
Surprisingly, the court also held that the retained administrator was 
not a fiduciary because it did not "exercise fiduciary responsibilities 
in the consideration of claims.  [It] perform[ed] only administrative 
functions, processing claims within a framework of policies, rules, and 
procedures established by others."  Id. at 1325.  We emphasize that the 
Ninth Circuit, similar to the district court here, failed to analyze the 
definitional section of fiduciary pertaining to the plan's 
administration.  1002(21)(A)(iii).  
[fn13] .  	Our holding is with respect to  1002(21)(A)(iii) only.  As 
stated above, the first phrase of subsection (i), authority or control 
respecting the management of the plan, may also lend support; however, 
it is unnecessary for our conclusion here, and we reserve for another 
day the task of defining its parameters. 

[fn14] .  	ERISA affords the beneficiary of an employee benefit plan 
opportunity the ability to bring a civil suit to recover benefits due.  
It provides in part:
	(a) Persons empowered to bring a civil action
	A civil action may be brought--

		(1) by a participant or beneficiary . . .
		(B) to recover benefits due to him under the terms of his 
plan, to enforce his rights under the terms of the plan, or to clarify 
his rights to future benefits under the terms of the plan;

		(2) by the Secretary, or by a participant, beneficiary or 
fiduciary for appropriate relief under section 1109 of this title;

		(3) by a participant, beneficiary, or fiduciary   . . . (B) 
to obtain other appropriate equitable relief . . . (ii) to enforce any 
provisions of this subchapter or the terms of the plan.

	*     *     *

	(d) Status of employee benefit plan as entity

		(2)  Any money judgment under this subchapter against an 
employee benefit plan shall be enforceable only against the plan as an 
entity and shall not be enforceable against any other person unless 
liability against such person is established in his individual capacity 
under this subchapter.  

29 U.S.C.  1132 (emphasis added).  Mrs. Curcio further contends that 
the "any other person" phrase of  1132(d)(2) authorizes a suit against 
any person who undertake
ys a promissory obligation to provide benefits pursuant to the terms of 
an ERISA regulated plan.  Although she argues that such is plainly the 
rule in the Third Circuit, the cases she cites clearly do not support 
this theory.  Heasley v. Belden and Blake Corp., 2 F.3d 1249, 1258 n.10 
(3d Cir. 1993); Ulmer v. Harsco Corp., 884 F.2d 98, 102 n.1 (3d Cir. 
1989); Anthius v. Colt Industries Operating Corp., 789 F.2d 207, 212-13 
(3d Cir. 1986).

[fn15] .  	Notably, we have recently held that damages are not 
recoverable under  1132(a)(1)(B).  Haberern v. Kaupp Vascular Surgeons 
Ltd. Defined Benefit Pension Plan, No. 93-1892, slip op. at 24.  Here, 
Mrs. Curcio relies on  1132(a)(3)(B).
[fn16] .  		(A) Any person who is a fiduciary with respect to a 
plan who breaches any of the responsibilities, obligations, or duties 
imposed upon fiduciaries by this subchapter shall be personally liable 
to make good to such plan any losses to the plan resulting from each 
such breach, and to restore to such plan any profits of such fiduciary 
which have been made through use of assets of the plan by the fiduciary, 
and shall be subject to such other equitable or remedial relief as the 
court may deem appropriate, including removal of such fiduciary.  A 
fiduciary may also be removed for a violation of section 1111 of this 
title.

29 U.S.C.  1109. 

	Mrs. Curcio argues that Capital Health need not be a fiduciary to 
be found liable under an equitable estoppel theory under ERISA.  Because 
we find Capital Health to be a fiduciary, we need not reach this issue.  
Cf. Smith v. Hartford Ins. Group 6 F.3d 131, 141 n.13 (3d Cir. 1993) 
(intimating that fiduciary status is required to be liable on an 
equitable estoppel claim under ERISA).   
[fn17] .  	The equitable theory of relief under ERISA is not to be 
construed as conflicting with our precedent precluding oral or informal 
amendments to ERISA benefit plans.  Confer v. Custom Engineering Co., 
952 F.2d 41, 43 (3d Cir. 1991); Frank v. Colt Industries, Inc., 910 F.2d 
90, 98 (3d Cir. 1990)' Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 
1163-64 (3d Cir. 1990).  Cf. Haberern v. Kaupp Vascular Surgeons Ltd. 
Defined Benefit Pension Plan, No. 93-1892 n.6 (3d Cir. 1994).  Here, 
Capital Health not only made oral representations, but also distributed 
written material describing the coverage.
[fn18] .  	But see Edwards v. State Farm Mut. Auto. Ins. Co., 851 F.2d 
134, 137 (6th Cir. 1988)(employee benefit plan claimant who had been 
misled by summary plan description and reassuring letter from 
management, need not show detrimental reliance). Because it is 
inconsistent with our precedents, we have previously declined to follow 
Edwards.  Gridley v. Cleveland Pneumatic Co., 924 F.2d 1310, 1319 n.8 
(3d Cir. 1991).
[fn19] .  	The dissent suggests, inter alia, that we should remand to 
the district court for factfinding on the elements of equitable 
estoppel.  We note, however, that the parties do not dispute the facts.  
The parties stipulated that the district court adjudicate all claims 
without trial solely on the basis of the written record, including the 
resolution of any material issues of fact.  We are of the view that 
reasonable minds could not differ on the establishment of the elements 
of equitable estoppel in this case.  Accordingly, it is appropriate for 
us to require the district court to enter judgment.