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. ) Civil Action No. 09-140 Erie

)

UNITED REFINING COMPANY, et al., ) Judge Cathy Bissoon

)

Defendants. )

)

MEMORANDUM AND ORDER

I. MEMORANDUM

This matter is before the Court upon the parties’ submission of a joint report (Doc. 247) 

identifying the final composition of the certified class, the payment amounts owed to each 

member of that class, and any disputes remaining as to either of the foregoing. In addition, the 

following motions are pending: Plaintiffs’ Motion to Clarify the Memorandum and Order Dated 

November 5, 2013 (Doc. 251); Plaintiffs’ Motion to Strike (Doc. 252); Defendants’ CrossMotion for Attorneys’ Fees (Doc. 254); and Defendants’ Cross-Motion to Substitute Declaration 

(Doc. 260). For the reasons that follow, each of these motions will be denied. A final class 

certification order will be issued consistent with this memorandum opinion.

A. BACKGROUND AND PROCEDURAL HISTORY

Plaintiffs John Cottillion (“Cottillion”) and Beverly Eldridge (“Eldridge”) (collectively, 

“Plaintiffs”) initiated this action on June 12, 2009, alleging, inter alia, that Defendants had 

violated ERISA’s anti-cutback provision, § 204(g), 29 U.S.C. § 1054(g)(2). (Doc. 1). On 

April 8, 2013, Judge Sean J. McLaughlin issued a memorandum opinion and order granting 

summary judgment in favor of Plaintiffs on their anti-cutback claim. Cottillion v. United 

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Refining Co., 2013 WL 1419705, *1 (W.D. Pa. Apr. 8, 2013). On November 5, 2013, this Court 

granted Plaintiffs’ motion for class certification and certified the following class:

All terminated vested participants of the United Refining Company 

Pension Plan for Salaried Employees (“Plan”), who were employed by 

United Refining Company and vested under either the 1980 or 1987 

version of the Plan at any time between January 1, 1987 and March 18, 

2003, and their beneficiaries under the Plan.

Cottillion v. United Refining Co., 2013 WL 5936368, *10 (W.D. Pa. Nov. 5, 2013). The Court 

directed the parties to “meet and confer to determine the final composition of the certified class” 

and to identify any disputes “as to the composition of the class or the amount of restitution owed 

to any individual class member.” Id. at *11.

On January 14, 2014, the parties’ submitted a joint report outlining their stipulations and 

disputes concerning final class composition and restitution. (Doc. 247). Specifically, the parties 

indicated that they had agreed to the following stipulations:

a. The parties stipulate that the 193 individuals listed in Joint Exhibit 1 (and their 

beneficiaries under the Plan) are members of the certified class; and

b. The parties stipulate to the payment amounts due under the Remedies Order as of 

December 31, 2013, for the 25 class members that are listed in Joint Exhibit 2.

(Doc. 247 at p. 1). However, the parties could not agree as to whether the following five 

individuals qualified as members of the certified class: Lisa Feeny, Charles Fields, Raymond 

Gutshall, Gayle Munson, and Stuart Upton. Id. at 2. The parties also disagreed as to the proper 

restitution amounts for the following five individual class members: Gary Berti, Janice Moore, 

Home Morrison III, Dennis Tuttle, and Stephen Widmer. Id.

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B. ANALYSIS

1. Motion for Clarification

“Although no Federal Rule of Civil Procedure specifically governs ‘motions for 

clarification,’ these motions are generally recognized and allowed by federal courts.” Barnes v. 

District of Columbia, 289 F.R.D. 1, 13 (D.D.C 2012). “The general purpose of a motion for 

clarification is to explain or clarify something ambiguous or vague, not to alter or amend.” 

Resolution Trust Corp. v. KPMG Peat Warwick, 1993 WL 211555, at *2 (E.D. Pa. June 8, 

1993). 

Here, Plaintiffs seek to “clarify” the Court’s November 5, 2013 memorandum and order 

with respect to the relief awarded to class members who have reached their Early Retirement 

Date but who have not yet commenced receiving a benefit. The pertinent language in the 

memorandum stated that Defendants must “provide each class member who has reached their 

early retirement date with the opportunity to immediately commence receiving an unreduced 

benefit if they choose to do so.” Cottillion, 2013 WL 5936368 at *8. The accompanying order 

similarly provided that, “[w]ith respect to those class members who have reached their early 

retirement date but have not yet commenced receiving benefits, it is hereby ORDERED that 

Defendants must provide each class member so situated with the opportunity to immediately 

elect to commence receiving an unreduced benefit if they choose to do so.” Id. at *11. Plaintiffs 

urge the Court to interpret this language to require Defendants to provide such class members 

with an opportunity to immediately commence an actuarially adjusted benefit – that is, a benefit 

that includes an adjustment for the past payments that such class members could have received 

had they elected to commence receiving benefits at their early retirement date – rather than 

receiving only prospective relief.

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Contrary to Plaintiffs’ assertions, there is nothing ambiguous or vague about the Court’s 

order. It simply requires Defendants to provide the class members at issue with the opportunity 

to begin receiving benefits immediately, even if they had previously elected to wait until a later 

date. Although Plaintiffs urge the Court to interpret this language to require an adjustment for 

past benefits that those participants elected not to receive, the Court has already determined that

restitution for such class members “would be entirely speculative.” Cottillion, 2013 WL 

5936368 at *8. Consequently, there is nothing to clarify. See, e.g., Wallace v. Powell, 2012 WL 

2007294, at *1-2 (M.D. Pa. June 5, 2012) (concluding that clarification of the court’s previous 

order was “unwarranted” where the order stated its determination “clearly and unambiguously”). 

Plaintiffs’ motion is denied.

1

2. Motion to Strike/Motion to Substitute

Plaintiffs’ Motion to Strike addresses the fifth paragraph of a declaration submitted by 

Robert Kaemmerer, the Plan Administrator, concerning the dates on which the 1987 Plan was 

amended. (Doc. 252). The original paragraph in Kaemmerer’s declaration stated as follows:

Based upon company records, the 1987 Plan was amended effective 

January 1, 1995 (the “1995 Plan”) and January 1, 2002 (the “2002 Plan). 

A corporate resolution adopted both plans in 1995 and 2002. The 

company applied for tax qualification of both Plans and the Internal 

Revenue Service issued tax qualification letters. I attach hereto as 

Exhibits “C,” “D,” “E,” “F,” “G,” and “H” true and correct copies of the 

1995 Plan, the 2002 Plan, the corporate resolution adopting the 1995 

Plan, the corporate resolution adopting the 2002 Plan, and the tax two 

[sic] qualification letters for both plans respectively.

 

1 Defendants request an award of the attorneys’ fees that they incurred in responding to Plaintiffs’ Motion to Clarify, 

contending that Plaintiffs’ motion was the product of “willful bad faith.” (Doc. 254 at p. 13). Although Plaintiffs’ 

motion lacks merit, the Court does not find that it was designed to “multipl[y] the proceedings . . . unreasonably and 

vexaciously” or that it was the product of bad faith. See 28 U.S.C. § 1927. Consequently, Defendants’ motion for a 

fee award is denied.

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(Doc. 248 at ¶ 5). Plaintiffs suggest that this portion of Kaemmerer’s declaration contains errors 

and contradicts factual findings already made by the Court. Defendants, in response, have 

offered (by way of their motion to substitute) to withdraw the offending paragraph and substitute 

a corrected version. (Doc. 260). 

Courts have “considerable discretion in disposing of a motion to strike under Rule 12(f).” 

Dela Cruz v. Piccari Press, 521 F.Supp.2d 424, 428 (E.D. Pa. 2007). In the instant case, the 

assertions set forth in each version of Kaemmerer’s declaration are immaterial to matters now 

pending before the Court. Each of the documents referenced in Kaemmerer’s declaration is 

already part of the record in this case, and the Court is well aware of the import of those 

documents and its own previous factual findings. The Court simply has no reason, at this stage 

in the proceedings, to utilize or rely upon any representation contained in that portion of 

Kaemmerer’s declaration. Consequently, both the motion to strike and the motion to substitute 

will be denied.

3. Class Composition Disputes

As noted above, the parties disagree as to whether the following five specific individuals

should be included as members of the certified class. These individuals will be discussed in turn.

a. Lisa Feeny, Charles Fields, Raymond Gutshall and Stuart Upton

To qualify as a member of the certified class in the instant case, an individual must have 

vested under either the 1980 or 1987 version of the Plan. Cottillion, 2013 WL 5936368 at *10. 

In order to vest, an individual must have been credited with at least five years of vesting service 

at the time his or her employment terminated. Id. at *3. With respect to the four individuals 

discussed in this subsection, the lone issue in dispute is whether they vested under the 1987 Plan 

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(in which case they would be members of the certified class) or the 2002 Plan (in which case 

they would not). 

By way of background, Feeny, Fields, Gutshall and Upton were hired between 

May 19, 1997, and December 8, 1997, at which time the 1987 Plan was still in effect. (Doc. 

250-1). However, at the beginning of 2002 – around the time that those four individuals were 

approaching five years of vested service – the company was in the process of amending and 

restating the Plan. The 2002 Plan was eventually adopted with an effective date of January 1, 

2002. (Doc 248-4). As of that date, Feeny, Fields, Gutshall and Upton had not yet accumulated 

five years of vested service. 

In order to maintain the Plan’s tax qualified status in light of several new legislative 

requirements (collectively referred to as “GUST”), Defendants submitted the amended Plan to 

the IRS seeking a determination that the Plan was GUST-compliant. (Doc. 143-10). Following 

the adoption of a handful of mandatory amendments, the Plan received a favorable determination 

letter from the IRS on March 4, 2003. (Doc. 145-4). A restated Plan with the required 

amendments was signed on March 18, 2003. Id. 

During the time between the effective date of the new Plan (January 1, 2002) and the 

adoption of the final GUST-required amendments (March 18, 2003), Feeny, Fields, Gutshall and 

Upton each attained five years of vested service. Consequently, in an attempt to bring those 

individuals within the scope of the certified class, Plaintiffs contend that the 1987 Plan 

Document remained in effect until March 18, 2003. In support of this position, Plaintiffs cite 

Depenbrock v. Cigna Corp., 389 F.3d 78 (3rd Cir. 2004), wherein the plaintiff, a pension plan 

beneficiary, attacked a plan amendment that had been adopted in a manner contrary to the plan’s 

written procedures at the time of its purported effective date. Id. at 79. During the interval 

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between the deficient attempt to adopt the amendment and the proper adoption of that 

amendment a year later, the plaintiff purportedly accrued rights under the older version of the

plan. Id. at 80. The issue before the Court was whether the company’s initial attempt to amend 

the plan was effective and, if not, whether the subsequent, proper adoption of the amendment had 

retroactive effect. Id. at 81. On review, the Court of Appeals for the Third Circuit resolved each 

of these issues in favor of the plaintiff, concluding that he was entitled to the benefit that he had 

accrued between the effective date of the amendment and the formal adoption of that 

amendment. Plaintiffs here contend that this holding supports the broader proposition that an 

amendment to prospectively eliminated or reduce benefits not yet accrued does not take effect 

until the later of the amendment’s adoption date or effective date. (Doc. 247 at p. 3) (emphasis 

in original).

Plaintiffs’ argument is misplaced. Unlike Depenbrock, Defendants were not attempting 

to correct a deficiency in the amendment process during the interval between January 1, 2002,

and March 18, 2003. Rather, in accordance with well-established IRS procedures, Defendants 

submitted the amended Plan documents to the IRS for a determination as to the tax-qualified 

status of the Plan. Under the Internal Revenue Code, this procedure, and any subsequent 

amendments enacted in order to satisfy IRS requirements, explicitly relate back to the effective 

date of the original amendment. See 26 U.S.C. § 401(b) (“A stock bonus, pension, profitsharing, or annuity plan shall be considered as satisfying [certain IRS] requirements . . . for the 

period beginning with the date on which it was put into effect . . .”); 26 C.F.R. § 1.401(b)-1 

(providing a remedial period following the adoption of a plan amendment in which the plan may 

correct provisions that would otherwise affect the plan’s tax-qualified status, and providing that 

those amendments relate back to the original effective date of the original amendment); Rev. 

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Proc. 2002-73 (allowing plans until September 30, 2003 to enact amendments to pre-approved 

plans in order to comply with GUST). There is no case law to support Plaintiffs’ proposition that 

a plan amendment is not effective until the plan receives an IRS tax qualification letter certifying 

that the amended plan documents have been approved. See Faircloth v. Lundy Packing Co., 91 

F.3d 648, 652-54 (4th Cir. 1996) (concluding that an IRS determination letter “does nothing to set 

up or manage” a plan); Murphy v. Verizon Comms., Inc., 2010 WL 4248845, *8 (N.D. Tex. Oct. 

18, 2010) (concluding that a “determination letter from the IRS . . . does not establish or manage 

the plan” or “set out the parties’ rights or obligations”). Consequently, the Court concludes that 

Feeny, Fields, Gutshall and Upton each vested under the 2002 Plan, rather than the 1987 Plan, 

and are not members of the certified class.

b. Gayle Munson

In order to qualify for a benefit under the 1987 Plan, a beneficiary must be credited with 

five years of service with a minimum of 1,000 hours of service each year. With respect to 

Munson, Defendants have supplied a declaration from Kaemmerer, the Plan Administrator, 

indicating that Munson only reached the 1,000 hour minimum threshold in four of the years that 

she worked for United Refining. (Doc. 248). Defendants support Kaemmerer’s determination 

with a worksheet indicating that the only years in which Munson worked at least 1,000 hours 

were 1985, 1986, 1987 and 1988. (Doc. 248-2). In light of this unrebutted evidence, the Court 

concludes that Munson did not vest under the 1987 Plan and does not meet the requirements of 

the certified class.

4. Restitution Disputes

Plaintiffs challenge the restitution calculations performed by Defendants with respect to 

Gary Berti, Janice Moore, Dennis Tuttle, Homer Morrison and Stephen Widmer. The source of 

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this dispute primarily concerns an annuity contract that the Plan purchased from TransAmerica 

in 1984. For Plan participants who were employed at United Refining prior to October 1, 1984, 

a portion of their benefit under the Plan is funded from the TransAmerica annuity, while the 

remainder is funded from the general assets of the Plan. Plaintiffs speculate that Defendants 

have miscalculated the restitution amount owed to these individuals by failing to properly 

account for the portion of the benefit funded by the TransAmerica annuity, resulting in an 

artificially low unreduced benefit calculation. Specifically, Plaintiffs conjecture that Defendants 

“appear to have calculated the amount of unreduced benefit payments a class member should 

have received by dividing the benefit amount actually paid by the reduction factor (based on the 

class member’s age at commencement) that was used to calculate that benefit.” (Doc. 247 at 

p. 9). Plaintiffs supply sample calculations demonstrating that this formula would not result in 

an accurate unreduced benefits calculation if the value of the TransAmerica annuity is not 

properly accounted for. Id. at 9-10.

Defendants, in response, have supplied a declaration from Thomas DeFilippo, a principal

of Towers Watson, the entity that currently serves as the enrolled actuary for the Plan. (Doc. 

249). In his declaration, DeFilippo indicates that Plaintiffs’ speculation as to the manner in 

which the TransAmerica annuity is accounted for in the Plan’s benefits calculations is unfounded 

and incorrect. Id. at ¶ 2. To the contrary, DeFilippo explicitly states that Defendants’ 

administrative practice has always been to offset the gross benefit amount by the amount of the 

TransAmerica annuity before calculating the value of the unreduced monthly benefit. Id. As 

such, Defendants are accurately capturing the value of that annuity and reflecting that value in 

their calculation of the unreduced benefit amount. Id. at ¶¶ 3-4. In light of DeFillipo’s 

explanation and his inherent familiarity with the calculation methods commonly utilized by the 

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Plan to determine benefit amounts, the Court will adopt Defendants’ calculations with respect to 

Berti, Moore, Tuttle, Morrison and Widmer.

2

II. ORDER

Upon consideration of Plaintiffs’ Motion for Clarification (Doc. 251), Defendants’

Motion for Attorneys’ Fees (Doc. 254), Plaintiffs’ Motion to Strike (Doc. 252), Defendants’ 

Cross-Motion to Substitute Declaration (Doc. 260) and the parties’ Joint Report concerning 

remedies (Doc. 247), the Court hereby ORDERS the following:

1. Plaintiffs’ Motion for Clarification is DENIED. 

2. Defendants’ Motion for Attorneys’ Fees is DENIED.

3. Plaintiffs’ Motion to Strike is DENIED.

4. Defendants’ Motion to Substitute is DENIED.

5. The certified class shall consist of the 193 individuals listed in Joint Exhibit 1 (and their 

beneficiaries under the Plan).

6. Judgment hereby is entered in favor of each of the individual certified class members 

listed in Joint Exhibit 2 in the amounts indicated.

7. Judgment hereby is entered in favor of Gary Berti, Janice Moore, Dennis Tuttle, Homer 

Morrison, and Stephen Widmer in the amounts set forth in the calculations provided by 

Defendants.

IT IS SO ORDERED.

March 24, 2014 s\Cathy Bissoon

Cathy Bissoon

United States District Judge

cc (via ECF email notification):

All counsel of record

 

2

Plaintiffs additionally contend that Widmer is entitled to a large lump-sum back payment because he chose initially 

to commence receiving benefits at his early retirement age, only to change his mind upon being informed that his 

benefit would be actuarially reduced. However, this Court has already held that it would not award monetary relief 

for participants who elected not to commence receiving benefits. Cottillion, 2013 WL 5936368 at *8. 

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