1

 IN THE UNITED STATES DISTRICT COURT 

 FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOHN COTTILLION, et al., on behalf of ) themselves and all others similarly situated, ) 

 ) 

 Plaintiffs, ) 

v. ) C.A. No. 09-140 Erie 

 ) District Judge McLaughlin 

UNITED REFINING COMPANY, et al., ) ) 

 Defendants. ) 

 ) 

MEMORANDUM OPINION 

McLAUGHLIN, SEAN J., J. 

 

 On June 12, 2009, Plaintiffs John Cottillion and Beverly Eldridge filed this 

putative class action under the Employee Retirement Income Security Act of 

1974 (“ERISA”), 29 U.S.C. § 1001 et seq., against United Refining Company, the 

United Refining Company Salaried Employees Pension Plan, and the Retirement 

Committee responsible for administering the Plan. On October 26, 2009, 

Plaintiffs filed an amended complaint wherein they assert (1) a claim for benefits 

pursuant to ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), (2) a claim for 

declaratory relief pursuant to ERISA §§502(a)(1)(B), 502(a)(3), 29 U.S.C. §§ 

1132(a)(1)(B), 1132(a)(3), (3) breach of fiduciary duty pursuant to ERISA § 404, 

29 U.S.C. § 1104, and (4) a violation of ERISA’s anti-cutback provision, §204(g), 

29 U.S.C. §1054(g)(2). Now pending before the Court are Plaintiffs’ Motion for 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 1 of 32
2

Summary Judgment on Counts I, II and IV [Dkt. 138], Defendants’ Motion for 

Summary Judgment [Dkt. 153], and Plaintiffs’ Motion to Strike Expert Reports 

and Testimony [Dkt. 167]. Each of these motions is fully briefed and ripe for 

review.

 I. Background 

 The following facts are undisputed, unless otherwise noted. Plaintiff John 

Cottillion (“Cottillion”) was employed by the United Refining Company (“United 

Refining”) from December 27, 1960 to April 21, 1989. (Pl. Ex. 1, Answer, ¶ 32; 

Pl. Ex. 2, Kaemmerer Decl., ¶ 4).1

 Plaintiff Beverly Eldridge was employed by 

United Refining from July 20, 1987 to December 6, 1996. (Pl. Ex. 1, Answer, ¶ 

51; Pl. Ex. 2, Kaemmerer Decl., ¶ 3; Defendant’s Response to Concise 

Statement, ¶ 3). Both Cottillion and Eldridge participated in the United Refining 

Pension Plan for Salaried Employees (“the Plan”), a pension plan sponsored and 

funded exclusively by United Refining for its employees. (Pl. Ex. 1, Answer, ¶¶ 1, 

32). Because Cottillion and Eldridge each ended their employment with United 

Refining after satisfying the Plan’s vesting requirement, but prior to the “Early 

Retirement Date” specified by the Plan, they fall into a category referred to as 

“terminated vested participants.” 

 

1 Citations to “Pl. Ex.” refer to the exhibits contained in Plaintiffs’ Appendix in Support of Summary Judgment. 

Defendant’s exhibits are cited herein as “Def. Ex.” 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 2 of 32
3

 The “Named Fiduciary” and “Administrator” of the Plan is the United 

Refining Company Retirement Committee (“Retirement Committee”). (Pl. Ex. 4, 

1980 Plan Document § 13.01; Pl. Ex. 6, 1987 Plan Document § 14.01; Pl. Ex. 7, 

1995 Plan Document § 7.1; Pl. Ex. 8, 2002 Plan Document § 7.1). From May 3, 

1988 to January 1, 2009, the Retirement Committee consisted of Lawrence 

Loughlin, Myron Turfitt, and John Catsimatidis, with Loughlin, the Secretary of 

the Retirement Committee, serving as the Plan’s day-to-day administrator. (Pl. 

Ex. 9; Pl. Ex. 10, Loughlin Decl., ¶ 2; Pl. Ex. 4, 1980 Plan § 13.01; Pl. Ex. 6, 1987 

Plan, § 14.01; Pl. Ex. 7, 1995 Plan § 7.1). 

 At the time of Cottillion’s retirement, the Plan was governed by a 

document styled “United Refining Company Pension Plan for Salaried 

Employees as Amended and Restated Effective June 30, 1980 (the “1980 Plan 

Document”). (Pl. Ex. 4, 1980 Plan Document). Section 4.01 of the 1980 Plan 

Document defined a participant’s “Normal Retirement Date” as “the first day of 

the month coincident with, or next following his 65th birthday.” Section 4.02 

defined a participant’s “Early Retirement Date” as “the first day of the month 

coincident with or following his 60th birthday and his completion of 10 years of 

Vesting Service, provided that he informs the Committee at least three months 

prior to such Early Retirement Date of his intention to retire early.” 

 Article VII of the 1980 Plan Document addressed termination from 

employment. Specifically, Section 7.01 provided that “[i]f a participant’s 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 3 of 32
4

employment shall terminate prior to his Normal Retirement Date or an Early 

Retirement Date, for any reason other than death, he shall be entitled to a 

deferred vested Retirement Income if he is credited with at least ten (10) years of 

Vesting Service at the time of his employment termination.” (Pl. Ex. 4, 1980 Plan 

Document, § 7.01). Section 7.02 provided that “[t]he amount and time of 

commencement of a deferred vested Retirement Income to a participant who 

satisfies the requirements of Section 7.01 shall be determined in accordance with 

the provisions of Section 5.03, based on the Participant’s Benefit Service and 

Average Compensation at the time of employment termination.” The crossreferenced section, Section 5.03, stated: 

A Participant who retires on an Early Retirement Date may 

elect to receive one of the following: 

(a) His Accrued Retirement Income computed 

as of his Early Retirement Date commencing 

at the end of the month in which his Normal 

Retirement Date would have occurred. 

(b) A reduced amount of Retirement Income to 

begin at the end of the month in which his 

Early Retirement Date occurs, computed so 

as to be a percentage of the benefit provided 

for him under paragraph (a) of this Section 

5.03, in accordance with the following table. . . 

(Section 5.03). The table accompanying Section 5.03 specified a “100.0%” 

benefit for retirees who started collecting benefits zero, one, two or three years 

prior to their Normal Retirement Date, a “93.3%” benefit for participants four 

years prior to Normal Retirement Date, and an “86.7%” benefit for participants 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 4 of 32
5

five years prior to Normal Retirement Date. (Id.) Consistent with this language, 

letters sent from United Refining to terminated vested participants during this 

time period informed them that any reduction in expected benefits prior to the 

participant’s Normal Retirement Date “appl[y] to ages 60 and 61 only.” 

 Effective July 1, 1987, United Refining adopted “Amendment No. 5” which 

amended the 1980 Plan Document by, inter alia, reducing the Vesting Service 

requirement for a terminated vested participant to five years and amended 

Section 5.03 to read: “A participant who retires on an Early Retirement Date will 

receive his Accrued Retirement Income computed as of his Early Retirement 

Date commencing at the end of the month in which his Early Retirement Date 

occurs.” (Pl. Ex. 5, Amendment No. 5 to 1980 Plan Document, ¶ 4). Following 

the adoption of Amendment No. 5, United Refining communicated with 

terminated vested participants to inform them that they could elect to have their 

full retirement benefit begin without reduction at any time after their Early 

Retirement Date. (Pl. Ex. 24, 5/13/88 Letter to Frederick Hane). Consequently, 

when Cottillion terminated his employment with United Refining in 1989, the 

company sent him a letter informing him that he could elect to receive his full 

retirement benefit - $573.70 – following his Early Retirement Date in October, 

1995, “at age 60.” (Pl. Ex. 25, 8/7/89 Letter to Cottillion; Pl. Ex. 26, Cottillion 

Application for Benefits). From November, 1995 through June, 2006, Cottillion 

received his full monthly benefit each month without any actuarial reduction for 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 5 of 32
6

early retirement. (Pl. Ex. 14, Cottillion Depo., pp. 117-118; Pl. Ex. 46, 6/15/06 

Letter to Cottillion). 

 On December 28, 1994, United Refining adopted a restated plan 

document, effective January 1, 1987, entitled “United Refining Company Pension 

Plan for Salaried Employees as Amended and Restated Effective January 1, 

1987” (the “1987 Plan Document”). (Pl. Ex. 6, 1987 Plan Document). The 1987 

Plan Document provided that, “[i]f a Participant’s employment shall terminate 

prior to his Normal Retirement Date for any reason other than death, he shall be 

entitled to a deferred vested Retirement Income if he is credited with at least five 

(5) years of Vesting Service at the time of his employment termination.” (Pl. Ex. 

6, 1987 Plan Document, § 7.01). Section 7.02 of the 1987 Plan Document 

stated: 

The amount of a deferred vested Retirement Income to a 

Participant who satisfies the requirements of Section 7.01 

shall be determined in accordance with Section 5.03, based 

on the Participant’s Benefit Service and Average 

Compensation at the time of employment termination. The 

form and payment of a Participant’s deferred vested 

retirement income shall be determined and made in 

accordance with the provisions of Article VI as though such 

terminated Participant had remained in the employment of 

the Company until reaching his Normal Retirement Date. 

(Pl. Ex. 6, 1987 Plan Document, § 7.02). Section 5.03 of the 1987 Plan 

Document continued to provide that “A Participant who retires on an Early 

Retirement Date will receive his Accrued Retirement Income computed as of his 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 6 of 32
7

Early Retirement Date commencing at the end of the month in which his Early 

Retirement Date occurs.” Consequently, when Eldridge terminated her 

employment with United Refining on December 6, 1996, she was informed that 

she could elect to have her “vested benefits . . . paid monthly commencing on the 

first of the month following [her] 59 1/2 birthday December 2009, without any 

reduction for early retirement.” (Pl. Ex. 37, Eldridge Application for Benefits; Pl. 

Ex. 38, 1/8/97 Letter to Eldridge).2

 

 On January 30, 2002, United Refining resolved to amend and restate the 

Plan in order to comply with the requirements of various recent legislative 

enactments. (Pl. Ex. 39, Consent of Directors). An amended and restated plan 

document, referred to as the “1995 Plan Document,” was executed on January 

30, 2002. (Pl. Ex. 7, 1995 Plan Document). Following notification from the IRS 

that several amendments to the Plan Document were required before a favorable 

determination letter could be issued, another amended and restated plan 

document, the “2002 Plan Document,” was adopted on March 18, 2003. (Pl. Ex. 

8, 2002 Plan Document; Pl. Ex. 20, IRS Submission). 

 Both the 1995 and 2002 Plan Documents added the following language in 

Section 5.4(c) requiring benefits that commence prior to a Normal Retirement 

Date to be actuarially reduced: 

 

2 Amendment No. 2 to the 1987 Plan, adopted in 1996, lowered the Plan’s Early Retirement Date from age 60 to 

age 59 1⁄2. (Pl. Ex. 6, 1987 Plan Document, Amendment No. 2).

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 7 of 32
8

The Retirement Income of a terminated Participant 

determined pursuant to this Section shall be payable 

commencing as of his Normal Retirement Date, as set forth 

in Article VI of the Plan, in an amount equal to the 

nonforfeitable percentage of his Accrued Benefit. A 

terminated Participant may elect, by giving at least 120 days’ 

prior written notice to the Committee, to have his Retirement 

Income commence prior to his Normal Retirement Date on 

the first day of any month coincident with or following his age 

fifty-nine and one-half birthday. In that event he shall be 

entitled to receive a Retirement Income for life in an amount 

equal to his Retirement Income on his Normal Retirement 

Date, actuarially reduced to reflect the earlier starting date 

thereof. 

(Pl. Ex. 7, 1995 Plan Document, § 5.4(c); Pl. Ex. 8, 2002 Plan Document, § 

5.4(c)). However, the 1995 Plan Document explicitly stated that “[e]mployees 

who retire on a Retirement Date or who terminated employment with the 

Company prior to January 1, 1995 shall have all of their benefits determined in 

accordance with the applicable provisions of the Prior Plan . . .” (Pl. Ex. 7, 1995 

Plan Document). Similarly, the 1987 Plan Document provided that “[i]n the event 

an amendment, including any change in actuarial assumptions, causes a 

Participant’s Accrued Benefit to decrease, either directly or indirectly, then such 

Participant’s Accrued Benefit shall be computed without consideration of the 

amendment or changed actuarial assumption.” (Pl. Ex. 6, 1987 Plan Document). 

From 2002 through 2005, United Refining continued to pay unreduced benefits to 

terminated vested participants. (Pl. Ex. 20, IRS Submission; Pl. Ex. 21, IRS 

Submission). 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 8 of 32
9

 On August 17, 2005, United Refining sent a letter to Eldridge purporting 

to “clarify when you can receive your pension from United Refining Company and 

under what terms . . .”. (Pl. Ex. 43, 8/17/05 Eldridge Letter). That letter informed 

her that: “If you elect to receive your pension benefit before age 65, the amount 

you receive will be adjusted to reflect the earlier starting date.” (Pl. Ex. 43, 

8/17/05 Eldridge Letter). Substantively identical letters were sent to other 

terminated vested participants who, like Eldridge, had accrued a vested benefit 

but had not yet commenced benefit payments. (Pl. Ex. 44). The letters each 

contained a chart outlining the actuarial factors by which each terminated vested 

participants’ benefits would be reduced. (Id.) Attached to each letter was a copy 

of Section 5.4 from the 2002 Plan Document. (Id.) 

 Shortly thereafter, on November 28, 2005, United Refining applied for a 

compliance statement under the IRS’s Voluntary Correction Program (“VCP”). 

(Pl. Ex. 20, IRS Submission). In its application, United Refining represented that 

it was voluntarily entering the VCP “for the purpose of correcting plan operational 

failures that have been discovered as a result of a review of the operation of the 

Plan.” (Id.) United Refining described the purported operational failure to the 

IRS as follows: 

 Under the terms of the Plan, a Participant is entitled to a 

pension benefit beginning at his or her Normal Retirement 

Date at age sixty-five years (see Plan sections 1.15 and 5.1). 

A Participant who terminates his or her employment for any 

reason other than death, prior to reaching his or her Normal 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 9 of 32
10

Retirement Date or Early Retirement Date (at age 59- 1/2 

years) and who has five (5) or more Years of Service shall be 

entitled to a deferred vested pension benefit beginning at his 

or her Normal Retirement Date (see Plan section 5.4). If the 

Participant elects to begin payment of his or her pension 

benefit on or after attaining age 59-1/2 years but prior to the 

Normal Retirement Date, then the pension benefit will be 

actuarially reduced for the earlier payment date (see Plan 

Section 5.4(c), last sentence) 

 Beginning with Plan Year 1995 (one participant) and 

continuing to the current year 2005, 16 Participants who 

elected to receive their deferred vested benefit prior to 

attaining their Normal Retirement Date were overpaid a 

monthly pension benefit that should have been actuarially 

reduced (as required by the Plan document) to reflect the 

earlier payment date. 

 As a result, “excess amounts” were paid to terminated 

vested participants. This error was discovered in the current 

year by the Plan’s actuaries, Towers Perrin. 

(Pl. Ex. 20, IRS Submission). In support of its application, United Refining 

referenced and attached sections of the 2002 Plan Document, including Section 

5.4(c), which did not appear in previous Plan Documents. (Pl. Ex. 20, IRS 

Submission). Based on these submissions, the IRS issued a compliance 

statement on March 16, 2006, which authorized United Refining to recoup past 

payments from, and reduce or halt future payments to, the sixteen plan 

participants identified in the IRS submission, including Cottillion. (Pl. Ex. 21, IRS 

Submission, Ex. C; Pl. Ex. 45, Compliance Statement). 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 10 of 32
11

 After receiving the March 16, 2006 Compliance Statement from the IRS, 

United Refining sent a letter to those terminated vested participants who were 

then receiving benefits payments from the Plan informing them that their 

pensions had been incorrectly calculated. (Pl. Ex. 46, 6/15/06 Letter to Cottillion; 

Pl. Ex. 48, Letters to Participants). Specifically, the letters advised participants 

that “the Retirement Committee of the Plan [recently] discovered that the 

calculation of your monthly pension benefit was incorrect and was in excess of 

the amount permitted under the terms of the Plan.” (Pl. Ex. 46, 6/15/06 Letter to 

Cottillion; Pl. Ex. 48, Letters to Participants). The letters further stated that: 

The Plan document requires that all pension benefits paid to 

terminated vested participants PRIOR to their Normal 

Retirement Age of 65 years MUST be actuarially reduced to 

the earlier payment date. As your monthly pension benefit 

began before your 65th birthday, your monthly pension 

benefit should have been reduced to reflect the earlier 

payment date. 

The Employee Retirement Income Security Act (“ERISA”) 

requires the Retirement Committee to strictly follow the terms 

of the Plan document in order for the Plan to maintain its 

favorable qualification issued by the Internal Revenue 

Service. As your current monthly pension benefit would be 

reduced under the requirements of the Plan document, the 

Plan Retirement Committee requested that the Internal 

Revenue Service review your retirement benefit payments 

and issue a Compliance Statement permitting correction to 

your future monthly pension payments. 

On March 16, 2006, the Internal Revenue Service issued 

their Compliance Statement that will permit the Plan to 

maintain its favorable Plan qualification provided the 

Retirement Committee corrects your monthly pension benefit 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 11 of 32
12

payments (see Attached Internal Revenue Service 

Compliance Statement and Submission). 

(Pl. Ex. 46, 6/15/06 Letter to Cottillion; Pl. Ex. 48, Letters to Participants). Each 

letter further advised the participant as to the new amount of his or her future 

monthly benefits payments. Cottillion’s letter, for example, stated that: 

Beginning on July 31, 2006 your monthly pension benefit 

payment will stop and you will not receive any future 

payments. Additionally, in order to recover excess 

payments, you should repay the Plan $14,475.55. This 

amount will fully satisfy the amount owed to the Plan for past 

overpayments and has been reduced to account for any 

future payments you would have received if excess 

payments were not paid to you. 

(Pl. Ex. 46, 6/15/06 Letter to Cottillion). Each letter concluded by cautioning that 

“[t]his determination is based on the Internal Revenue Service’s published 

revenue procedures and Compliance Statement which the Plan Retirement 

Committee must follow.” (Pl. Ex. 46, 6/15/06 Letter to Cottillion; Pl. Ex. 48, 

Letters to Participants). 

 

II. Summary Judgment Standard 

 Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment 

shall be granted if the Apleadings, the discovery and disclosure materials on file, 

and any affidavits show that there is no genuine issue as to any material fact and 

that the movant is entitled to judgment as a matter of law.@ Rule 56(e) further 

provides that when a motion for summary judgment is made and supported, Aan 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 12 of 32
13

opposing party may not rely merely on allegations or denials in its own pleading; 

rather, its response must B by affidavits or as otherwise provided in this rule B set 

out specific facts showing a genuine issue for trial. If the opposing party does not 

so respond, summary judgment should, if appropriate, be entered against that 

party.@ 

A material fact is a fact whose resolution will affect the outcome of the 

case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986). The moving party has the initial burden of proving to the district court the 

absence of evidence supporting the non-moving party's claims. Celotex Corp. v. 

Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v. Partnership Composed of 

Gepner and Ford, 930 F.2d 1056, 1061 (3rd Cir. 1990). Further, A[R]ule 56 

enables a party contending that there is no genuine dispute as to a specific, 

essential fact >to demand at least one sworn averment of that fact before the 

lengthy process of litigation continues.=@ Schoch v. First Fidelity Bancorporation, 

912 F.2d 654, 657 (3rd Cir. 1990) (quoting Lujan v. National Wildlife Federation, 

497 U.S. 871 (1990)). The burden then shifts to the non-movant to come forward 

with specific facts showing a genuine issue for trial. Matsushita Elec. Indus. 

Company v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams v. Borough of 

West Chester, Pa., 891 F.2d 458, 460-461 (3rd Cir. 1989) (the non-movant must 

present affirmative evidence - more than a scintilla but less than a 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 13 of 32
14

preponderance - which supports each element of his claim to defeat a properly 

presented motion for summary judgment). 

III. Analysis 

 Although Plaintiffs raise multiple claims for relief in their Amended 

Complaint, the heart of this action is Plaintiffs’ contention that United Refining 

violated ERISA’s anti-cutback provisions by attempting to retroactively reduce the 

amount of accrued early retirement benefits earned and/or paid to plan 

participants under the 1980 and 1987 Plan Documents. Defendants contend that 

the payment of unreduced benefits from 1988 through 2006 was the result of a 

mistake made by the plan administrator which has now been properly corrected. 

 Although ERISA “neither mandates the creation of pension plans nor in 

general dictates the benefits a plan must afford,” Bellas v. CBS, Inc., 221 F.3d 

517, 522 (3rd Cir. 2000), ERISA does “seek to ensure that employees will not be 

left emptyhanded once employers have guaranteed them certain benefits.” 

Lockheed Corp. v. Spink, 517 U.S. 882, 887 (1996) (quoting Nachman Corp. v. 

Pension Benefit Guaranty Corp., 446 U.S. 359, 375 (1980)). Indeed, “[t]here is 

no doubt about the centrality of ERISA’s object of protecting employees’ justified 

expectations of receiving the benefits their employers promise them.” Central 

Laborers’ Pension Fund v. Heinz, 541 U.S. 739, 743 (2004). A “crucial” 

component of this objective is ERISA’s anti-cutback rule, which provides that 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 14 of 32
15

“[t]he accrued benefit of a participant under a plan may not be decreased by an 

amendment of the plan . . .”. Heinz, 541 U.S. at 743-44 (quoting ERISA § 

204(g), 29 U.S.C. § 1054(g)(1)). ERISA Section 204(g)(2) adds that “a plan 

amendment which has the effect of . . . eliminating or reducing an early 

retirement benefit . . . with respect to benefits attributable to service before the 

amendment shall be treated as reducing accrued benefits.” 29 U.S.C. § 

1054(g)(2). Thus, in order to state a claim for a violation of ERISA’s anti-cutback 

rule, a plaintiff must show “(1) that a plan was amended and (2) that the 

amendment decreased an accrued benefit.” Battoni v. IBEW Local Union No. 

102 Employee Pension Plan, 594 F.3d 230, 233 (3rd Cir. 2010). 

 In the Third Circuit, “what constitutes an ‘amendment’ to a pension plan 

has been construed broadly to protect pension benefits.” Battoni, 594 F.3d at 

234 (citing Hein v. FDIC, 88 F.3d 210, 216) (3rd Cir. 1996). This construction 

extends both to explicit amendments, such as a formal adoption of a new 

provision, and to implicit amendments, such as when “[a]n erroneous 

interpretation of a plan provision . . . results in the improper denial of benefits to a 

plan participant.” Hein, 88 F.3d at 216. Thus, a pension committee’s 

reinterpretation of a plan term to deny previously accrued benefits represents an 

“amendment” of the plan to the same extent as a formal amendment. Id. at 216-

17 (“[I]f McNeil improperly denied Hein unreduced early retirement benefits, 

McNeil’s action could be construed as a Plan amendment, and ERISA § 204(g) 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 15 of 32
16

would apply.”); Hammond v. Alcoa, Inc., 2008 WL 5135671, *8 (W.D. Pa. 2008) 

(“[A]n amendment can take the form of a change in the actual text of the plan 

itself, or an erroneous interpretation of a plan provision, resulting in the improper 

denial of benefits.”); Zebrowski v. Evonik Degussa Corp. Admin. Committee, 

2012 WL 3962670, *12 (E.D. Pa. 2012) (holding that a “Committee’s 

interpretation had the same effect as a formal amendment” for purposes of an 

anti-cutback claim); Pieseski v. Northrop Grumman Corp., 2002 WL 97749, *6-7 

(citing Hein and holding that the defendants’ misinterpretation of a plan provision 

was “sufficient to constitute an ‘amendment’ of the Northrop Plan for purposes of 

a Section 204(g) violation of ERISA . . .”); Hunter v. Caliber System, Inc., 220 

F.3d 702, 712 (6th Cir. 2000) (accord). 

 As previously noted, Cottillion’s employment terminated in 1989 under the 

1980 Plan Document, and Eldridge’s employment terminated in 1996, under the 

1987 Plan Document. Plaintiffs’ anti-cutback claim is premised on the contention 

that United Refining retroactively applied Section 5.4(c) of the 1995 and 2002 

Plan Documents to reduce Plaintiffs’ vested benefits which accrued under the 

1980 and 1987 Plan Documents. Defendants counter that Section 5.4(c) did not 

alter or change the benefits provided under the 1980 and 1987 Plan Documents, 

but merely stated in explicit terms what already should have been clear under 

each of the previous documents, to wit, that Plaintiffs’ early retirement benefits 

must be actuarially reduced. Consequently, the company contends that the 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 16 of 32
17

Retirement Committee’s decision to retroactively reduce pension benefits which 

had previously been paid at unreduced amounts was not occasioned by the 

addition of Section 5.4(c), but rather, was an overdue correction of a longstanding mistake. See, e.g., Defendants’ Memorandum in Support of Summary 

Judgment, pp. 13-15. 

 We first observe, consistent with Hein, Hammond, Zebrowski and 

Pieseski, discussed above, that whether by virtue of the addition of Section 5.4(c) 

to the 2002 Plan Document or in light of the Retirement Committee’s 

reinterpretation of the 1980 and 1987 Plan Documents to preclude unreduced 

early retirement benefits, there has clearly been a “plan amendment” within the 

meaning of the anti-cutback rule. Having reached that conclusion, our inquiry 

shifts to whether the benefit claimed by the plan participants and reduced by the 

amendment was an “accrued benefit.” 

 This analysis is governed by several well-established principles. First, 

ERISA defines an “accrued benefit” as “the individual’s accrued benefit 

determined under the plan . . .”. 29 U.S.C. § 1002(23)(A). In other words, a 

determination as to an entitlement to benefits must be “based on a permissible 

reading of the terms of the Plan” before it can be considered an “accrued benefit” 

within the meaning of ERISA. Redd v. Brotherhood of the Maintenance of Way 

Employes Division Pension Plan, 2010 WL 1286653, *9 (E.D. Mich. 2010) (“It 

surely is not enough . . . to merely claim that a pension benefit was ‘determined 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 17 of 32
18

under the plan’ . . . without any effort to show that this benefit determination 

rested upon some tenable reading of the controlling plan documents.”); Hein, 88 

F.3d 210, 217 (observing that “ERISA § 204(g) can protect an entitlement to 

benefits, but it cannot create an entitlement to benefits when no entitlement 

exists under the terms of the Plan.”). 

 Secondly, it is well-settled that “the proper standard of review” of a plan 

administrator’s interpretation of plan language “depends on the language of the 

instrument.” Conkright v. Frommert, 559 U.S. 506, 130 S.Ct. 1640, 1646 (2010) 

(citing Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 111-12 (1989)). If 

the plan documents “give the trustee ‘power to construe disputed or doubtful 

terms, . . . the trustee’s interpretation will not be disturbed if reasonable.’” Id. at 

1646 (quoting Firestone, 489 U.S. at 111). Consequently, a plan administrator’s 

interpretation of a plan “is to be reviewed under a de novo standard unless the 

benefit plan gives the administrator or fiduciary discretionary authority to 

determine eligibility for benefits or to construe the terms of the plan” in which 

case it is subject to “arbitrary and capricious” review. Id. (quoting Firestone, 489 

U.S. at 115); see also Hunter, 220 F.3d at 709-12. 

 Finally, the parties agree that the calculation and payment of monthly 

benefits by a plan administrator represents an interpretation of the relevant Plan 

language. See Transcript, Oral Hearing, 11/16/12, p.9; Morales v. Reliance 

Standard Ins. Co., 2006 WL 2709376, *3 (E.D. Pa. 2006) (“When Reliance 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 18 of 32
19

calculated the long term disability monthly benefit it was interpreting relevant 

portions of the plan.”). 

 Here, each of the Plan Documents at issue explicitly invested the 

Retirement Committee with the power to “[c]onstrue and interpret the Plan, 

decide all questions of eligibility and determine the amount, time and manner of 

payment of any benefits hereunder . . .”. See, e.g., Pl. Ex. 4, 1980 Plan 

Document, § 13.10(a)(4). From approximately 1995 through 2002, the 

Retirement Committee and the plan administrator consistently interpreted the 

relevant language of the 1980 and 1987 Plan Documents to provide unreduced 

early retirement benefits to terminated vested participants. In resolving the 

question as to whether the provision of unreduced early retirement benefits to 

terminated vested participants represented an “accrued benefit” for purposes of 

Plaintiffs’ anti-cutback claim, we find the analytical approach utilized by the court 

in Redd to be persuasive and sound. 

 In Redd, the defendant pension plan had previously included “final 

vacation pay” in calculating the pension benefits of plan participants. From 2001 

through roughly 2007, the company paid benefits to plan participants in 

accordance with this interpretation of the Plan. On June 20, 2007, however, 

participants began receiving letters informing them that “errors had been made in 

the calculation of their pension benefits, and that the Plan was required under 

federal law to recoup any past overpayments as a result of these errors.” Id. at 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 19 of 32
20

*4. Consequently, the Plan advised participants that “their monthly pension 

payments were being reduced to reflect the purportedly correct calculation of 

their benefits under the Plan, and that additional amounts were being withheld 

from their monthly payments to recoup the alleged overpayments they had 

received in the past.” Id. The participants filed suit alleging that this “correction” 

violated ERISA’s anti-cutback rules. Id. 

 The court began its analysis as to whether the benefits at issue were 

“accrued benefits” by observing: 

It surely is not enough, after all, to merely claim that pension 

benefit was “determined under the plan,” 29 U.S.C. § 

1002(23)(A), without any effort to show that this benefit 

determination rested upon some tenable reading of the 

controlling plan documents. . . . [A] wholly mistaken benefit 

determination presumably would not produce an “accrued 

benefit determined under the plan,” 29 U.S.C. § 1002(23)(A), 

and thus might not be entitled to protection under ERISA’s 

anti-cutback provision. [Courts have] recognized precisely 

this principle, rejecting anti-cutback claims where the plaintiff 

plan participants could not establish an entitlement to 

benefits under the pertinent pre-retirement plan provisions to 

a level or type of pension benefits that subsequently was 

reduced or eliminated. 

Id. at *9 (collecting cases). The court further explained: 

Consequently, to secure an award of summary judgment in 

their favor on their anti-cutback claim, Plaintiffs must 

establish that the benefit amounts they were receiving prior 

to the Defendant Brotherhood’s June 2007 recalculation and 

reduction of those benefits were based on a permissible 

reading of the terms of the Plan. Under the Sixth Circuit’s 

decision in Hunter, 220 F.3d at 709-12, the Brotherhood’s 

interpretation of the Plan at the time of Plaintiffs’ retirement 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 20 of 32
21

(from 2001 until 2006) is subject to “arbitrary and capricious” 

review, provided that the Plan confers upon the Brotherhood 

the discretion to construe its terms. The Plan clearly does 

so[.] . . . 

In order to determine, then, whether Plaintiffs’ initial 

retirement benefits, before their recalculation and reduction, 

were “accrued benefits” that were permissibly “determined 

under the plan,” 29 U.S.C. § 1002(23)(A), the Court must 

consider whether the interpretation of the Plan that 

generated these initial benefit awards passes muster under 

the “arbitrary and capricious” standard of review. This is the 

“least demanding form of judicial review,” under which this 

Court must uphold a denial of benefits if it is “rational in light 

of the plan’s provisions.” “When it is possible to offer a 

reasoned explanation, based on the evidence, for a particular 

outcome, that outcome is not arbitrary or capricious.” 

Id. at *10 (internal citations omitted). 

 Applying the aforementioned principles, the court rejected the defendant’s 

contention that their prior, long-standing interpretation of the plan to include final 

vacation pay as “compensation” was based on a “loophole” that was never “the 

intent of the Plan.” Id. Rather, after reviewing the plain language of the plan 

and “the Brotherhood’s construction of other Plan terms at the time”, the court 

concluded that the prior interpretation of the plan “readily passe[d] muster under 

the ‘arbitrary and capricious’ standard of review.” Id. at **11-12. Consequently, 

the court awarded summary judgment in favor of the plaintiffs on their anticutback claim. Id. at *12. 

 A similar argument was addressed in DiCioccio v. Duquesne Light Co., 

911 F.Supp. 880 (W.D. Pa. 1995). Under the facts in DiCioccio, prior to 1990, 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 21 of 32
22

the defendant company had consistently included income from the plaintiffs’ 

exercise of stock options when calculating plaintiffs’ benefits under the 

company’s retirement plan. In June of 1990, however, the plan administrator for 

the company’s retirement plan issued a memorandum opining that this income 

did not qualify as “compensation” under the plan and would no longer be used in 

future benefits calculations. Id. at 887, 890-91. Plaintiffs argued that this 

reinterpretation of the plan reduced their accrued benefits in violation of ERISA’s 

anti-cutback rule, with Defendants countering that the plan administrator’s 

decision “constituted an exercise of appropriate discretionary authority under the 

Plans and simply was intended to correct a mistake in practice which had 

inadvertently developed.” Id. at 895. The district court framed its analysis by 

noting: 

ERISA defines an accrued benefit in the case of a defined 

benefit plan as “the individual's accrued benefit determined 

under the plan, and, except as provided in section 1054(c)(3) 

of this Title, expressed in the form of an annual benefit 

commencing at normal retirement age....” 29 U.S.C. § 

1002(23)(A). ERISA further provides that “the accrued 

benefit of a participant under a plan may not be decreased 

by an amendment of the plan, other than an amendment 

described in section 1082(c)(8) or 1441 of this Title.” 29 

U.S.C. § 1054(g)(1). It follows a fortiorari that an accrued 

benefit may not be retroactively decreased through the 

purported exercise of an administrator's discretion. 

Id. at 897. After reviewing the plan documents, the court determined that the 

plan administrator’s prior interpretation of the plan to include proceeds from the 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 22 of 32
23

exercise of stock options as “income” was based on a reasonable construction of 

the plan and, as such, had produced an accrued benefit. Id. at 897. Accordingly, 

the court concluded that the plan administrator’s attempt to reinterpret the plan to 

exclude that income ran afoul of the anti-cutback rule and awarded summary 

judgment in favor of the plaintiffs. Id. 

 Based on Redd and DiCioccio, we conclude that it is the Plaintiffs’ burden 

to establish that the interpretation of the Plan Documents which had resulted in 

the provision of unreduced early retirement benefits for terminated vested 

participants was tenable and rational such that it passes muster under the 

arbitrary and capricious standard.3

 Here, Plaintiffs contend that the Plan 

Administrator’s interpretation of the 1980 and 1987 Plan Documents was correct 

or, at the very least, was not arbitrary and capricious. In support of their 

contention, Plaintiffs primarily rely upon the cross-reference to Section 5.03 

contained in Section 7.02 of each of the applicable Plan Documents. As noted 

above, Section 7.02 of the 1980 Plan Document provided that “[t]he amount and 

time of commencement of a deferred vested Retirement Income to a participant 

who satisfies the requirements of Section 7.01 shall be determined in accordance 

 

3 Contrary to Defendants’ assertions, the focus of our inquiry in the anti-cutback context is not whether the amendment 

itself was an appropriate exercise of discretion, but whether the amendment has the effect of reducing or eliminating an accrued 

benefit. Consequently, Defendants’ argument that the Court should apply a deferential standard to the Plan Administrator’s “reinterpretation” of the Plan Documents is simply inapposite. If the prior, long-standing interpretation by the Plan Administrator was 

sufficiently reasonable to produce an accrued benefit, then the anti-cutback rule prevents the subsequent amendment of the Plan

Documents to eliminate that benefit. 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 23 of 32
24

with the provisions of Section 5.03, based on the Participant’s Benefit Service 

and Average Compensation at the time of employment termination.” (Pl. Ex. 4, 

1980 Plan Document, § 7.02). Section 7.02 of the 1987 Plan Document similarly 

stated that “[t]he amount of a deferred vested Retirement Income to a Participant 

who satisfies the requirements of Section 7.01 shall be determined in accordance 

with Section 5.03, based on the Participant’s Benefit Service and Average 

Compensation at the time of employment termination . . . as though such 

terminated Participant had remained in the employment of the Company until 

reaching his Normal Retirement Date.” (Pl. Ex. 6, 1987 Plan Document, § 7.02). 

Following the adoption of Amendment No. 5 to the 1980 Plan Document, Section 

5.03 of both the 1980 and 1987 Plan Documents stated that “A Participant who 

retires on an Early Retirement Date will receive his Accrued Retirement Income 

computed as of his Early Retirement Date commencing at the end of the month 

in which his Early Retirement Date occurs.” Plaintiffs contend that the Plan 

Administrator reasonably interpreted this language to mean that the amount of a 

terminated vested participant’s deferred vested retirement income would be the 

unreduced amount specified in Section 5.03, precisely as the plain language of 

those provisions would seem to suggest. 

 Defendants’ respond that the Plan Administrator’s original interpretation 

of the 1980 and 1987 Plan Documents was the result of a mistake and its 

decision to rectify it must be accorded deference. Consequently, Defendants 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 24 of 32
25

contend, for purposes of Plaintiffs’ anti-cutback claim, that Plaintiffs’ entitlement 

to unreduced early retirement benefits never accrued. Defendants dismiss 

Section 7.02’s explicit cross-reference to Section 5.03 as “a vestigial reference” 

that “makes no sense,” see Transcript, Oral Hearing, 11/16/12, at 42, and offer 

the following interpretation of the Plan Documents as pertaining to the calculation 

of benefits for terminated vested participants: 

Section 7.02’s cross-reference to § 5.03, which referred to 

the computation of “Accrued Retirement Income” as of the 

date at the end of the first month in which a participant could 

commence pay status, confined payment of a full DVT 

benefit to age 65. The term “Accrued Retirement Income” 

used in Section 5.03 also appeared in Section 5.02 of the 

Plan, which directed that the amount of a Participant’s 

“Accrued Retirement Income” would be computed, “as of any 

particular date,” in accordance with the formula for Normal 

Retirement in Section 5.01 and “based upon his Benefit 

Service and Average Compensation determined on that 

date.” Reading the three sections together with Section 7.02, 

the Accrued Retirement Income of a DVT was to be 

computed under Section 5.01 only at the normal retirement 

age of 65 as of the last day of the first month in which a DVT 

could commence pay status by means of the formula in 

Section 5.01. 

(Defendants’ Memorandum in Support of Summary Judgment, p. 11). 

 We find that the Defendants’ construction of the Plan Documents 

unreasonably minimizes the explicit reference to Section 5.03 contained in 

Section 7.02 in favor of a series of implicit cross-references, the cumulative effect 

of which would render Section 7.02 meaningless. Moreover, to the extent that 

the language of the Plan Documents is ambiguous or susceptible to multiple 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 25 of 32
26

interpretations,4 including that offered by the Defendants, the Plan 

Administrator’s long-standing interpretation of those provisions (which provided 

for unreduced benefits) is entitled to deference, as previously discussed. Reed, 

2010 WL 1286653, *10; Hunter, 220 F.3d at 709-12. 

 In sum, after carefully reviewing the language of the 1980 and 1987 Plan 

Documents, we conclude that the construction urged by the Plaintiffs is, at a 

minimum, tenable and rational so as to withstand scrutiny under the arbitrary and 

capricious standard. Consequently, Defendants’ attempt to reduce Plaintiffs’ 

accrued retirement benefits runs afoul of ERISA’s anti-cutback rules. 

 Before summary judgment can be entered in favor of Plaintiffs on their 

anti-cutback claim, however, two additional hurdles must be cleared. 

Specifically, Defendants contend that Plaintiffs’ claims are barred because they 

failed to exhaust their administrative remedies and because their claims are 

untimely. Each of these arguments will be addressed in turn. 

 As an initial matter, we conclude that Plaintiffs’ anti-cutback claim is 

timely. The parties agree that the appropriate limitations period for an anticutback claim is Pennsylvania’s six-year “catch-all” limitations period as set forth 

in 42 Pa.C.S.A. § 5527. See, e.g., Romero v. Allstate Corp., 404 F.3d 212, 220 

(3rd Cir. 2005). Such a claim accrues at “such time as the employee knew or 

 

4 At oral argument, defense counsel conceded that the 1980 and 1987 Plan Documents “were not models of clarity.” 

(Transcript, Oral Hearing, 11/16/12, p. 11). 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 26 of 32
27

should have known that the amendment has brought about a clear repudiation of 

certain rights that the employee believed he or she had under the plan.” Id. at 

223. 

 Defendants contend that Plaintiffs’ anti-cutback claim accrued, at the 

latest, on January 30, 2002, when United Refining adopted the 1995 Plan 

Document which first contained Section 5.4(c). Defendants suggest that 

Plaintiffs should have known as of that date that their benefits were going to be 

actuarially reduced. However, in Romero, the Third Circuit rejected a rule which 

would necessarily “tie the date of accrual to the date of amendment.” Romero, 

404 F.3d at 223. As explained by the Court: 

A rule that unwaveringly ties the date of accrual to the date of 

amendment would have the undesirable effect of requiring 

plan participants and beneficiaries “likely unfamiliar with the 

intricacies of pension plan formulas and the technical 

requirements of ERISA, to become watchdogs over potential 

[p]lan errors and abuses.” It would also tend to preclude 

claims by those who commenced employment after the 

limitations period applicable to the particular ERISA claim 

has elapsed. Additionally, it would impose an unfair duty of 

clairvoyance on employees, such as those in this case, who 

allege that an amendment’s detrimental effect on them was 

triggered not at the time of its adoption, but rather at some 

later time by a subsequent event. We eschew such a rule in 

light of the underlying purposes of ERISA and its disclosure 

requirements. 

Id. at 224 (citing DeVito v. Pension Plan of Local 819 I.B.T. Pension Fund, 975 

F.Supp. 258, 265 (S.D.N.Y. 1997); In re Unisys Corp. Retiree Med. Ben. ERISA 

Litigation, 58 F.3d 896, 901 (3rd Cir.1995)). 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 27 of 32
28

 In the instant case, no “clear repudiation” of Plaintiffs’ accrued right to 

benefits occurred until Plaintiffs received letters from Loughlin informing them 

that their vested benefits would be actuarially reduced from that point forward. 

For Eldridge, that date was August 17, 2005; for Cottillion, June 15, 2006. In 

light of the communications that Cottillion and Eldridge had previously received 

from United Refining consistently informing them of their eligibility for an 

unreduced early retirement benefit (and, in the case of Cottillion, the unreduced 

payments that he had been receiving for several years), it would likewise impose 

“an unfair duty of clairvoyance” on Plaintiffs to require them to have predicted 

that Defendants would someday attempt to retroactively apply Section 5.4(c) to 

reduce those benefits. See Romero, 404 F.3d at 223-24. Consequently, 

Plaintiffs’ anti-cutback claim, filed on June 12, 2009, is timely. 

 Finally, with respect to exhaustion, it is undisputed that neither Eldridge 

nor Cottillion invoked or exhausted Plan appellate procedures following their 

reductions in benefits. Plaintiffs nonetheless contend that the exhaustion 

requirement should be excused in this case on the grounds of futility. “A plaintiff 

is excused from exhausting administrative procedures under ERISA if it would be 

futile to do so.” See Harrow, 279 F.3d at 250 (citing Berger v. Edgewater Steel 

Co., 911 F.2d 911, 916 (3rd Cir. 1990)). In determining whether to excuse 

exhaustion on futility grounds, courts consider several factors including: “(1) 

whether plaintiff diligently pursued administrative relief; (2) whether plaintiff acted 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 28 of 32
29

reasonably in seeking immediate judicial review under the circumstances; (3) 

existence of a fixed policy denying benefits; (4) failure of the insurance company 

to comply with its own internal administrative procedures; and (5) testimony of 

plan administrators that any administrative appeal was futile.” Harrow, 279 F.3d 

at 250. 

 Here, Plaintiffs primarily rely upon the third factor, contending that United 

Refining responded to each inquiry from a terminated vested participant 

concerning the reduction in benefits by informing them that the matter was out of 

their hands and that nothing could be done. For example, the notification letters 

sent by Loughlin indicated that the proposed reduction in benefits was required 

by a third party, the IRS, to whom no appeal or administrative exhaustion was 

available. See Pl. Ex. 46, 6/15/06 Letter to Cottillion; Pl. Ex. 48, Letters to 

Participants (“[T]he Internal Revenue Service . . . will permit the Plan to maintain 

its favorable Plan qualification provided the Retirement Committee corrects your 

monthly pension benefit payments.”). Letters sent in response to prompt 

inquiries from numerous affected plan participants similarly indicated that 

Defendants had reached a fixed and intractable position with respect to the 

benefits in question. See, e.g., Pl. Ex. 62, 11/14/06 Letter from Loughlin (“The 

error and correction was submitted to the IRS to remove any decision authority 

from the Plan Administrator and the Company.”); Pl. Ex. 67, 9/13/06 Letter from 

Loughlin (“This correction was mandated by the Internal Revenue Service and 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 29 of 32
30

not by the Plan Administrator or the Company.”). By portraying the reduction in 

benefits as a fait accompli driven by the IRS, Defendants represented that their 

own hands were tied and that no grounds for reconsideration were available. 

See, e.g., Berger, 911 F.2d at 916-17 (excusing exhaustion where evidence 

showed “that the company had adopted a policy of denying all applications” for 

benefits); Falcone v. Teamsters Health and Welfare Fund, 489 F.Supp.2d 490, 

496 (E.D. Pa. 2007) (excusing exhaustion where evidence indicated that the 

defendant had taken a “clear and unwavering” stance with regards to the denial 

of benefits); Olay v. Hearne, 2007 WL 1520094, *12-13 (W.D. Pa. 2007) 

(excusing exhaustion as the result of a fixed policy). 

 For the reasons set forth above, we conclude that Plaintiff has 

demonstrated a “clear and positive showing of futility.” Harrow, 279 F.3d at 249 

(quoting Brown v. Cont’l Baking Co., 891 F.Supp. 238, 241 (E.D. Pa. 1995)). 

 In conclusion, we find that summary judgment in favor of Plaintiff on the 

anti-cutback claim presented in Count IV of the Amended Complaint is 

appropriate. At oral argument, Plaintiffs’ counsel acknowledged that Plaintiffs’ 

anti-cutback claim provides a full and complete remedy for the violations alleged 

in the Amended Complaint: 

 The Court: Isn’t this really an anti-cutback case? 

 Ms. Brett: Yes. 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 30 of 32
31

 The Court: Don’t you get, if you’re right, I’m not 

suggesting you are, but just to try to get the 

underbrush cleared out here, you get 

everything that you want under an anticutback theory, don’t you? 

 Ms. Brett: Yes. 

(Transcript, Oral Hearing, 11/16/12, p. 55). Consequently, it is unnecessary to 

address the alternate theories of recovery advanced in the Amended Complaint 

at this time.5

 See, e.g., Redd, 2010 WL 1286653, *14 (“[I]n light of the Court’s 

conclusion that Plaintiffs are entitled to summary judgment in their favor on their 

anti-cutback claim, the Court need not address the other theories of recovery 

advanced in Plaintiff’s complaint.”). 

 

5 Similarly, in light of their successful advancement of their anti-cutback claim, Plaintiffs’ Motion to Strike Expert Reports 

and Testimony is denied as moot. 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 31 of 32
32

 

 IN THE UNITED STATES DISTRICT COURT 

 FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOHN COTTILLION, et al., on behalf of ) themselves and all others similarly situated, ) 

 ) 

 Plaintiffs, ) 

v. ) C.A. No. 09-140 Erie 

 ) District Judge McLaughlin 

UNITED REFINING COMPANY, et al., ) ) 

 Defendants. ) 

 ) 

ORDER

AND NOW, this 8th day of April, 2013, for the reasons set forth in the 

accompanying MEMORANDOM OPINION, 

IT IS HEREBY ORDERED that Plaintiffs’ Motion for Summary Judgment 

is GRANTED IN PART with respect to the anti-cutback claim set forth in Count IV 

of the Second Amended Complaint, and is otherwise DENIED WITHOUT 

PREJUDICE. Defendants’ Motion for Summary Judgment is DENIED WITH 

PREJUDICE as to Count IV and is otherwise DENIED WITHOUT PREJUDICE. 

JUDGMENT is accordingly entered in favor of Plaintiffs as to Count IV of 

the Second Amended Complaint. 

/s/ Sean J. McLaughlin 

United States District Judge 

cm: All parties of record. ___ 

Case 1:09-cv-00140-CB Document 186 Filed 04/08/13 Page 32 of 32