2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-21-2007

Leckey v. Stefano

Precedential or Non-Precedential: Precedential

Docket No. 06-3161

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Recommended Citation

"Leckey v. Stefano" (2007). 2007 Decisions. Paper 2.

http://digitalcommons.law.villanova.edu/thirdcircuit_2007/2
 *

Honorable Harold A. Ackerman, United States District Judge for the District of New

Jersey, sitting by designation.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

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

 

JANICE B. LECKEY; JANICE B. LECKEY,

Executrix of the Estate of Evelyn O. Knapp,

a/k/a Evelyn Olliffe Knapp, Deceased also

known as JANICE BURGER LECKEY

Appellant

v.

PAUL W. STEFANO; FRANK W. JONES,

Administrators of the Estate of William

E. Knapp, Deceased, and Trustees of the

Insurance Trust of William Knapp, deceased

 

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 95-cv-00108)

District Judge: Honorable David S. Cercone

 

Argued April 24, 2007

Before: McKEE and AMBRO, Circuit Judges

ACKERMAN,* District Judge

(Opinion filed August 31, 2007)

William R. Caroselli, Esquire

Caroselli, Beachler, McTiernan & Conboy

312 Boulevard of the Allies
2

8th Floor

Pittsburgh, PA 15222

Edward C. Leckey, Esquire (Argued)

1034 Fifth Avenue

Pittsburgh, PA 15219

Counsel for Appellant

David A. Strassburger, Esquire (Argued)

Harry F. Kunselman, Esquire

Strassburger, McKenna, Gutnick & Potter

444 Liberty Avenue

Suite 2200 Four Gateway Center

Pittsburgh, PA 15222

Counsel for Appellee

Mary Beth Buchanan

 United States Attorney

Eileen J. O’Connor

 Assistant Attorney General

Kenneth L. Greene, Esquire

Michelle B. Smalling, Esquire (Argued)

Department of Justice, Tax Division

Post Office Box 502

Washington, D.C. 20044

Counsel for Amicus Curiae

Commission of Internal Revenue

ORDER AMENDING PRECEDENTIAL OPINION

AMBRO, Circuit Judge

It is now ordered that the published Opinion in the above case filed August 31,

2007, be amended as follows:

On page 10, in the first sentence of footnote 7, insert “claim” between

“§ 1132(a)(1)(B)” and “because” so that the sentence reads:
3

In her brief, Leckey appears to abandon her § 1132(a)(1)(B) claim because

it would be futile to sue a plan that no longer has any assets.

On page 25, in the sixth line of footnote 10, change “Jun. 6, 2007” to “June 6,

2005” so that the citation reads:

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

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

the citation reads:

Leckey v. Stefano (Leckey I), No. 95-108 (W.D. Pa. Apr. 26, 2004), at 21

(granting in part and denying in part cross-motions for summary judgment).

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

citation reads:

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

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

so that the citation reads:

Roth, 61 F.3d at 603.

On page 38, in the seventh line from the bottom of the page, change “If the plan

contain” to “If the plan contained” so that the sentence reads:

If the plan contained a qualified annuity requirement, William died after

illegally removing assets from the Trust, and so the proper remedy for this

29 U.S.C. § 1132(a)(2) violation is to restore those assets.

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

29 U.S.C. § 1113.

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

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

the sentence reads:

Here, Leckey alleges that the funds wrongfully withdrawn from the Pension
4

Trust were deposited in a Charles Schwab brokerage account that is

currently an asset of William’s estate (and thus under the control of the

nominal defendants).

By the Court,

/s/ Thomas L. Ambro, Circuit Judge

Dated: December 21, 2007

CRG/cc: William R. Caroselli, Esq.

 Edward C. Leckey, Esq.

 Kenneth L. Greene, Esq.

 Michelle B. Smalling, Esq.

 David A. Strassburger, Esq.

 Harry F. Kunselman, Esq.