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HomeMy WebLinkAbout08-2375LINDA F. WITMER Plaintiff VS. UPPER ALLEN TOWNSHIP, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION -,LAW : 2008 - X3 7 S L u `?'e1ti. DECLARATORY JUDGMENT ACTION NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 LINDA F. WITMER : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW VS. 2008 UPPER ALLEN TOWNSHIP, DECLARATORY JUDGMENT ACTION Defendant COMPLAINT AND NOW, comes the Plaintiff, Linda F. Witmer, by her attorney, Dale F. Shughart, Jr., Esquire, and avers as follows: 1. Plaintiff is Linda F. Witmer, an adult individual, who resides at 110 Merrihill Drive, Carlisle, Pennsylvania 17015. 2. Defendant Upper Allen Township is a First Class Township organized and existing under the Laws of the Commonwealth of Pennsylvania with its office at 100 Gettysburg Pike, Mechanicsburg, Pennsylvania 17055. 3. Plaintiff is the widow of David H. Witmer who died on July 26, 2007 at the age of 61. 4. During his lifetime David Witmer was employed by Upper Allen Township, and as an employee vested in a retirement benefit under the Township's employee benefit plan. At his death Mr. Witmer had not yet elected to receive monthly retirement payments. 5. At the time of his termination of employment Mr. Witmer received a "Notice of Deferred Vested Benefit", a true and correct copy of which is attached hereto, made a part hereof, and marked Exhibit "All. 6. During the time he was employed by Upper Allen Township, David Witmer was provided a "Summary Plan Description" for the "Upper Allen Township Employees' Pension Plan". On Page 2 of this Plan regarding Death Benefits, The Plan provides as follows: DEATH BENEFITS If you become vested under the Plan and die before beginning to receive benefits, your spouse will receive a 50$ survivor benefit if you have been married at least one year. Payment of the survivor benefit would begin on the date on which you would first have been eligible for retirement. The amount of the survivor benefit would be the 50W survivor benefit payable under the joint and 50%- survivor option, based upon the pension accrued at your date of death and reduced for early commencement of benefits, if applicable. A true and correct copy of the Summary Plan Description is attached hereto, made a part hereof, and marked Exhibit "B". 7. Following David Witmer's death, Plaintiff contacted Upper Allen Township and requested confirmation of her survivor death benefit. In response, Plaintiff received a letter dated August 10, 2007 from Conrad Siegel Actuaries to Upper Allen Township stating that she is not entitled to a death benefit. A true and correct copy of this letter is attached hereto, made a part hereof and marked Exhibit "C°. 8. David and Linda Witmer were married on November 23, 1991 and were therefore married for more than one year at the time of Mr. Witmer's death. 9. The Township's position is that Articles IV and V of the Plan document, dated January 1, 2001, adopted after Mr. Witmer's termination of employment, deny benefits to spouses of vested former employees who have not begun receiving benefits. True and correct copies of Articles IV and V of the 2001 Pension Plan are attached hereto, made a part hereof, and marked Exhibit ''D°. 10. Plaintiff does not know to what extent these provisions may have been amended after Mr. Witmer terminated employment. 11. As an employee who terminated employment, David Witmer was entitled to rely upon the Summary Plan Description which clearly indicates that his spouse is entitled to a 50% pension benefit in the event of his death regardless whether or not he had begun receiving benefits. 12. The Township Summary Plan and the Plan document are inconsistent with each other, and the Plan Document itself is ambiguous. The Plaintiff is entitled to have the Plan construed in the manner most favorable to her and her deceased husband. NOW, THEREFORE, Plaintiff Linda F. Witmer, prays Your Honorable Court to award her the following Declaratory Relief: -3- a. To order and direct that the Upper Allen Township Employees' Pension Plan provides her with a 50% joint and survivor annuity in accordance with the Notice of Deferred Vested Benefit provided to David H. Witmer. b. To order and direct that Upper Allen Township begin to pay Plaintiff's pension, effective April 1, 2008, her entitlement to be $223.585 per month. c. To grant such other relief as is just and proper. Respectfully ubm' d, ]),It 11 Dale F. Shugha Jr Supreme Court I.D. 1 3 3 10 West High Street Carlisle, PA 17013 (717) 241-4311 -4- VERIFICATION Linda F. Witmer hereby verifies that the facts set forth in the foregoing Complaint are true and correct to the best of her knowledge, information and belief, and understands that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications. _? t lCJ c7 G?if? DATE: April j'?, 2008 -5- COMMISSIONERS RAY E. TRIMMER President JOHN F. ALLISON Vice Prcaident VIRGINIA M. ANDERSON Assistant Secretary WILLIAM F. KANE Assistam Secretary Mark E. Lewis Assistant Secretary COMMISSIONERS of UPPER ALLEN TOWNSHIP CUMBERLAND COUNTY 100 GETTYSBURG PIKE MECHAMCSBURG, PA 17055-5698 TELEPHONE (717) 766-0756 FAX (717) 790-9410 April 11, 1996 Mr. David H. Witmer 60 Garland Drive Carlisle, PA 17013 RE: NOTICE OF DEFERRED VESTED BENEFIT Dear Dave: STAFF ROBERT J. SABATINI, JR. Tbwnship Msnapr/Soomotry GREGORY C. MOLL, P.E. 7bwnship Engineer WILLIAM E. MILLER, JR. Township Solicitor Enclosed is your NOTICE OF DEFERRED VESTED BENEFIT regarding pension benefits accrued while employed by Upper Allen Township. Please keep this information for you records. Should you have any questions; please do not hesitate to contact: me. Thank you for your consideration in this important matter. Very truly yours, UPPER ALLEN TOWNSHIP =' BOAOF COMIOIISSIONER R*bert . Sabatini, Jr. Township Manager/S retary EXhibit lf)? UPPER ALLEN TOWNSHIP EMpwyns PENSION PLAN NOTICE OF DEFERRED VESTED BENEFIT To: David H Witmer Social Security # 206-34-8117 In accordance with the vesting provisions of the Plan, you are entitled to a Deferred Vested Pension bea toning at your normal retirement date April 1, 2008. The of $ 447. 7 per month will be payable for your lifetime, with aion 120 months. You may choose another form of p yments guaranteed for payment at retirement. You may elect to have payments begin as early as April 1. 001 ; however, your pension would then be reduced to reflect early payment. Please report any change in your address to the Plan Sponsor and Administrator: Upper Allen Township 100 Gettysburg Pike Mechanicsburg, PA 17055 x,17 k 2-o r Y3, '2 CY rv S M r" 2 42 H ,( F)- 1 (Date of Notice - April 18, 1996) U47600lDHS SUMMARY PLAN DESCRIPTION FOR THE UPPER ALLEN TOWNSHIP EMPLOYEES PENSION PLAN ExA1bj? S" January 1, 1995 INTRODUCTION The Upper Allen Township Employees Pension Plan was established to provide retirement income and additional financial security for you. The benefits under the plan are designed to supplement your Social Security benefits as well as your personal savings. This Summary Plan Description is intended to acquaint you with the principal features of the Plan. The actual operation of the Plan will be based on the Plan Ordinance. In the event of any discrepancy between the Plan Ordinance and this Summary Plan Description, the Plan Ordinance will govern. ELIGIBILITY TO PARTICIPATE If you are a full-time employee (excluding Police Officers) of Upper Allen Township, you become a member of the Plan on the January 1 after your date of employment and you attain age 21. RETIREMENT BENEFITS You will be eligible for normal retirement after you satisfy both of the following conditions: (a) You attain age 62, and (b) You complete 5 years of service. Your normal retirement pension is payable monthly during your lifetime with payments guaranteed for the first 120 months. The amount of your monthly pension is equal to 50% of your average monthly compensation; however, if you have completed less than 15 years of service at your normal retirement date, your pension shall be multiplied by a fraction, the numerator of which is the number of your years of service at your normal retirement date and the denominator of which is 15. The minimum monthly pension shall be $50. For purposes of determining your monthly pension benefit from the Plan, your average monthly compensation is based upon your highest 3 consecutive plan years of compensation. If you continue working after your normal retirement date, your pension will not start until you actually retire from active employment. Your late retirement pension will be equal to the greater of the pension accrued to your late retirement date, based upon your average monthly compensation determined at your late retirement date, or the actuarial equivalent of your normal retirement pension. You are eligible for early retirement after you attain age 55 and complete 5 years of service. Your early retirement pension is equal to the pension accrued at your early retirement date, reduced by 5/9 of 1% for each of the first 60 months and by 5/18 of 1% for each of the next 60 months by which your early retirement date precedes your normal retirement date. If you become totally and permanently disabled, you will be entitled to a disability pension after you have been disabled for 6 months. Your disability pension will be equal to the actuarial equivalent of the pension accrued at your date of disability. DEATH BENEFITS If you become vested under the plan and die before beginning to receive retirement benefits, your spouse will receive a 505 survivor benefit if you had been married at least one year. Payment of the survivor benefit would begin on the date on which you would first have been eligible for retirement. The amount of survivor benefit would be the 50% survivor benefit payable under the joint 4n.d 50% survivor pension option, based upon the pension accrued at your date of death and reduced for early commencement of benefits, if applicable. VESTING If you terminate employment prior to meeting the eligibility requirements for normal retirement but after you have completed 5 years of service, you will be entitled to a deferred monthly pension beginning on your normal retirement date equal to your accrued pension at your date of termination. ACCRUED PENSION The pension accrued at any date other than your normal retirement date is equal to your projected normal retirement pension multiplied by the ratio of your number of years of service to date to the total number of years of service you will have completed if you work until your normal retirement date; using however your average monthly compensation as of the date of determination. ' COST OF THE PLAN The Township pays the full cost of the plan. Employee contributions are not required. lk E -a J1 2 PENSION OPTIONS Your monthly pension may be payable under one of the options listed below. The amount of pension will be actuarially adjusted for each option: a) Joint and S PenR;^,, _ A monthly pension payable as long as you live. If your survivor is still living upon your death, payments will continue during your survivor's lifetime. Pension payments to your survivor could be 100% or 50% of the amount payable to you. You elect the percentage to be continued to your survivor. (b) Lifetime Pension wi .h r', Period, - A monthly pension payable as long as you live. Upon your death, payments will continue to your beneficiary for the remainder of the certain period if you die before a specified number of monthly payments (60 or 180) have been made. If you live beyond the certain period, payments will continue as long as you live. Your choice of a pension option must be made before payments begin and can not be changed thereafter. ADMINISTRATION The Plan is administered by the Township. Any questions relating to the Plan should be directed to: Township Manager Upper Allen Township 100 Gettysburg Pike Mechanicsburg, PA 17055 Phone: (717) 766-0756 3 Conrad Siegel 501 Corporate Circle • P.O. Box 5900 • Harrisburg, PA 17110-0900 A C T U A R I E S Phone (717) 652-5633 Fax (717) 540-9106 The Employee Benefits Company www.conradslegel.com Conrad M. Siegel, F.S.A. Harry M. Leister, Jr., F.S.A. August 10, 2007 Clyde E. Gingrich, F.S.A. Robert J. Dolan, A.S.A. Mr. Richard S. Laskey David F. Sliding, ASA Upper Allen Township 100 Gettysburg Pike Robert J. Mrazik, F.S.A. Mechanicsburg, PA 17055 David H. Kiliick, F.SA Jeffrey S. Myers, F.S.A. Re: David H. Witmer Thomas L Zimmerman, F.SA. Dear Mich: Glenn A Hafer, F.S.A. Kevin A. Erb F.s a. You have notified me that David H. Witmer, a vested former member , under the Upper Allen Township Employees Pension Plan died on Frank S. Rhodes, F.S.A., aC.A.S. , July 26, 2007. You requested that I provide you with the amou t f Hilly A. Ross, F.SA. n o any benefits Mr. Witmer's spouse is entitled to receive under the plan due to his death. Jane( M. Leymeister, CEBS Mark A. Bonsall, F.s A. Under the terms of the Upper Allen Township Employees Pension Plan, a pre-retirement death benefit is provided to vested active employees. Since Jahn W. Jeffrey, F.sA Mr. Witmer was no longer actively employed as of the date of his death, Denise M. Pdin, F.SA F.S.A. there are no survivor benefits payable to his spouse under the terms of the plan. Thomas W. Reese, ASA Jonathan D. Cramer, F.S.A. If you have any questions, please call. John D. Vargo, F.SA With best regards, Robert M. Glus, A.S.A. Yours sincerely, Bruce A. Sent, CEBS Laura V. Hess, A.SA. b cure Vicki L De(ligani David H. Killick, F.S.A. Lesley A. Bausch-Ward, A.S.A. DHK:smf Consulting Actuary Timothy J. Patota, EA J. Scott Gehman, CEBS William J. Shipley, A.SA. Joshua R. Mayhue, A.S.A. Charles A. Ebedin, E.A. •AUG=30-2007 THU 08:39 AM CONRAD SIEGEL ACTUARIES FAX NO. 7175409106 P. 02 Upper Allen Township Employees Pensioin Plan A distribution under an acceptable domestic relations order will not be made to an alternate payee until the participant is entitled to a distribution under this plan and commences such distribution. Nothing in this Section permits the alternate payee to receive a form of payment not otherwise permitted under the plan. The plan administrator shall establish reasonable procedures to determine the acceptability of a domestic relations order in accordance with IRC section 414(p). Upon receiving a domestic relations order, the plan administrator promptly will notify the participant and any alternate payee named in the order, in writing, of the receipt of the order and the plan's procedures for determining the acceptability of the order. Within a reasonable period of time after receiving the domestic relations order, the plan administrator shall determine the acceptability of the order and shall notify the participant and each alternate payee, in writing, of its determination. The plan administrator shall provide notice under this paragraph by mailing to the individual's address specified in the domestic relations order. If any portion of the participant's nonforfeitable accrued benefit is payable during the period the plan administrator is making its determination of the acceptability of the domestic relations order, the plan administrator shalt make a separate accounting of the amounts payable. If the plan administrator determines the order is an acceptable domestic relations order within 18 months of the date amounts first are payable following receipt of the order, it shall direct the trustee to distribute the payable amounts in accordance with the order. If the plan administrator does not make its determination of the acceptability of the order within the 18-month determination period, it shall direct the trustee to distribute the payable amounts in the manner the plan would distribute if the order did not exist and will apply the order prospectively if it later determines the order is an acceptable domestic relations order. ARTICLE IV -- DEATH BENEFITS Section 4.1 - Preretirement Death Benefit (a) Preretirement Survivor Annuity Benefit - If a vested participant who has been married for at least one year dies prior to termination of employment but after the plan's earliest retirement age, the participant's surviving spouse (if any) shall receive the same benefit that would be payable if the participant had retired with an immediate joint and 50% survivor annuity on the day before the participant's date of death. The surviving spouse may elect to commence payment under such annuity within a reasonable period after the participant's death. The actuarial value of benefits that commence later than the date on which payments would have been made to the surviving spouse under a joint and survivor annuity in accordance with this provision shall be adjusted to reflect the delayed payment. If a vested participant who has been married for at least one year dies prior to termination of employment but on or before the plan's earliest retirement age as described in Section 5.2, the participant's surviving spouse (if any) shall receive the same benefit that would be payable if the participant had: • separated from service on the date of death, • been vested strictly in accordance with the vesting schedule, + survived to the earliest retirement age, • retired with an immediate joint and 50% survivor annuity at the earliest retirement age, and • died on the day after the earliest retirement age. For purposes of the preceding sentence, a surviving spouse shall begin to receive payments at the earliest retirement age unless such surviving spouse elects a later date. Benefits commencing after the earliest retirement age will be the actuarial equivalent of the benefit to which the surviving spouse would have been entitled if benefits had commenced at the earliest retirement age under an immediate joint and 50% survivor annuity. The survivor benefit set forth above shall not be payable unless the participant and spouse have been married throughout the one-year period ending on the date of the participant's death. The participant's spouse cannot waive receipt of this benefit. L xhl,bl?- 'T " _u+76.voc:,2rz4/200, Copyright 0 2001 by Conrad M. Siegel, Inc. 12 •AUG230-2007 THU 02:22 PM CONRAD SIEGEL ACTUARIES FAX NO, 7175409106 P. 02 Upper Alien Township Employees Pension Plan If there is an acceptable domestic relations order in force with respect to the participant, the alternate payee shall be treated as the surviving spouse to the extent provided in the order. However, no order shall be accepted if it provides that the alternate payee shall be the surviving spouse with respect to benefits accrued as a result of years of benefit service credited after the termination of the marriage. Section 4.2 - Postretirement Death Benefit Upon the death of a participant after his annuity starting date, no death benefit shall be payable, except such benefit as is provided by the particular form of pension payment under which pension benefits. are being distributed. ARTICLE V -- TERMINATION OF EMPLOYMENT BENEFITS Section 5.1 - Vesting If a participant separates from the service of the employer other than by retirement, disability, or death, he shall be entitled to a vested deferred pension equal to the benefit accrued to the date of termination multiplied by the vesting percentage, based upon his years of vesting service to the date of termination. His vesting percentage shall be determined by the vesting schedule set forth below: Years of Service Vesting Percentage 0-4 Years 0% 5 or More Years 100% Section 5.2 - Payment of Benefits (a) Payment as of Normal Retirement Date - If the participant terminates his employment on or before his normal retirement date, payment of the vested accrued pension may begin at his normal retirement date. If payments do not commence until after his normal retirement date, distribution must begin by the required beginning date for minimum required distributions and the amount of the benefit payable shall be determined as provided in Section 3.4. The vested accrued pension shall be payable in the same optional forms and in the same manner as described in Section 3.7. (b) Payment at Early Retirement Date - Upon the request of the terminated participant, payment of the vested accrued pension may begin after he has satisfied the plan's early retirement date requirement(s). In the event of such earlier commencement of benefits, the benefit shall be paid pursuant to the early retirement provisions of Section 3.5 in the same optional forms and in the same manner as described in Section 3.7. (c) Payment Prior to Early Retirement Date -No payment shall be made prior to early retirement, disability, or death. (d) Death Before Retirement - if a participant terminates employment and dies before beginning to receive retirement benefits, a preretirement death benefit may be payable, to the extent provided under Article IV. Section 5.3 - Forfeitures (a) Time of Forfeiture - If a participant terminates employment before his accrued benefit derived from employer contribution is fully vested, the nonvested portion of his accrued benefit shall be forfeited on the last day of the vesting computation period in which the participant first incurs a one-year break in service. (b) Disposition of Forfeiture - Forfeitures shall serve to r2duce subsequent employer contributions hereunder. (c) Determination of Accrued Benefit - If a distribution is made at a time when a participant has a nonforfeitable right to less than the entire accrued benefit derived from employer contribution, the participant may increase his nonforfeitable percentage in his accrued benefit by returning to employment 1t Z) / t1 477_U476.DOC: 121202001 Copyright 0 2001 by Conrad M. Siegel, Inc. 13 t l 1} rl r t_ r. --? C 6 C SHERIFF'S RETURN - REGULAR CASE NO: 2008-02375 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WITMER LINDA F VS UPPER ALLEN TOWNSHIP NOAH CLINE Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon +I--„ T T "AT T/1T.TAT L1 TIT n the DEFENDANT , at 1120:00 HOURS, on the 17th day of April 2008 at 100 GETTYSBURG PIKE MECHANICSBURG, PA 17055 RICH LASKEY, ASST TOWNSHIP by handing to MANAGER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Postage Surcharge ti/a -/c p 9- 18.00 10.00 .58 10.00 .00 38.58 Sworn and Subscibed to before me this day of So Answers: R. Thomas Kline 04/18/2008 DALE SHUGHART By: eputy Sheriff A.D r??lx LINDA F. WITMER Plaintiff VS. UPPER ALLEN TOWNSHIP, Defendant TO THE PROTHONOTARY: Dear Sir: : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : 2008 - 2375 DECLARATORY JUDGMENT ACTION PRAECIPE Please mark the above captioned action settled and discontinued. Date: ?'1%5L_ .-240g- 5 2--<) OB7 Dale F. Shugha? t/ J Supreme Court D 9373 10 West High Stree Carlisle, PA 17013 (717) 241-4311 CC: William E. Miller, Jr., Esquire Miller & Associates, P.C. ? s° ?. ' T i 1 t`. " tia , ._ . ? ` C..i"k - - ???> Cn?d _ .`. ?•.,