ASKEW v. R.L. REPPERT, INC. et al

Filing 161

ORDER THAT JUDGMENT IS GRANTED IN FAVOR OF DEFENDANTS R.L. REPPERT, INC.; RICHARD L. REPPERT; THE R.L. REPPERT, INC. EMPLOYEES PROFIT SHARING 40L(K) PLAN; AND THE R.L. REPPERT, INC. MONEY PURCHASE PLAN (DAVIS BACON PLAN), AGAINST PLAINTIFF DERRICK AS KEW ON THAT PART OF COUNT ONE OF PLAINTIFF'S CLASS ACTION COMPLAINT ALLEGING THAT DEFENDANT R.L. REPPERT, INC. IMPROPERLY WITHHELD ANY OTHER CUSTODIAL AGREEMENTS {APART FROM ITS AGREEMENT WITH THE NATIONWIDE TRUST COMPANY, FSB) IN VIOLATION OF 29 U.S.C. §§ 1024 (B) (4), 1132 (C) (1); ETC. AS HEREIN. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 9/30/16. 9/30/16 ENTERED AND COPIES E-MAILED.(mas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DERRICK ASKEW,

Civil Action
No. 11-cv-04003

Plaintiff
v.

R.L. REPPERT, INC.;
RICHARD L. REPPERT;
R.L. REPPERT, INC. EMPLOYEES
PROFIT SHARING 40l(k) PLAN; and
R.L. REPPERT, INC. MONEY
PURCHASE PLAN (DAVIS BACON PLAN),
Defendants

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R.L. REPPERT, INC.;
RICHARD L. REPPERT; and
R.L. REPPERT, INC. EMPLOYEES
PROFIT SHARING 40l(k) PLAN,
R.L. REPPERT, INC. MONEY
PURCHASE PLAN (DAVIS BACON PLAN),
Third-Party Plaintiffs

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)

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v.
CALIFORNIA PENSION ADMINISTRATORS &
CONSULTANTS, INC.,
Third-Party Defendants

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VERDICT

NOW, this

3 Q.tty of

September, 2016, upon

consideration of the non-jury trial held February 29, 2016 and
March 1 and 2, 2016; upon consideration of the testimony and
evidence adduced at trial; upon consideration of the pleadings

and record papers; upon consideration of the parties' post-trial
submissions; and for the reasons expressed in the accompanying
Adjudication, including Findings of Fact, Conclusions of Law,
and Discussion:
I find in favor of defendants R.L. Reppert,
Richard L. Reppert; the R.L. Reppert,
Sharing 401(k)

Inc.;

Inc. Employees Profit

Plan; and the R.L. Reppert,

Inc. Money Purchase

Plan (Davis Bacon Plan), against plaintiff Derrick Askew on that
part of Count One of plaintiff's Class Action Complaint alleging
that defendant R.L. Reppert,

Inc. improperly withheld any other

custodial agreements (apart from its agreement with the
Nationwide Trust Company,
§§ 1024 (b) (4),

FSB) in violation of 29 U.S.C.

1132 (c) (1).

I find in favor of plaintiff Derrick Askew against
defendant R.L. Reppert,

Inc. in the amount of $15,959.00 on that

part of Count One of plaintiff's Class Action Complaint
requesting penalties pursuant to 29 U.S.C. §§ 1024 (b) (4),
1132{c) (1)

for defendant R.L. Reppert,

Inc.'s failure to timely

produce plan documents for the periods December 6, 2008 to
October 2, 2009 and May 17, 2012 to Janvary 1, 2015.

1

All other parts of Count One of plaintiff's Class Action
Complaint were dismissed by my Order and Opinion dated February 4, 2016 and
filed February 5, 2016 granting in part and denying in part both plaintiff's
and defendants' cross~rnotions for summary judgment.

-ii-

I find in favor of plaintiff Derrick Askew against
defendant R.L. Reppert, Inc. on that part of Count Four of
plaintiff's Class Action Complaint alleging that defendant
R.L. Reppert, Inc. failed to comply with the audit requirement
set forth in 29 U.S.C.

§

1023(a) (3) (A) with respect to the

401(k) Plan for the plan years 2008 through 2011. 2
I find in favor of third-party defendant California
Pension Administrators & Consultants, Inc.

("CalPac") against

defendants and third-party plaintiffs on Count One of their
Amended Third Party Complaint, alleging that CalPac breached its
Client Service Agreement with defendant R.L. Reppert, Inc.
I find in favor of third-party defendant California
Pension Administrators & Consultants, Inc. against defendants
and third-party plaintiffs on Count Two of their Amended Third
Party Complaint, alleging that CalPac knowingly or recklessly
misrepresented the plan administration and recordkeeping
services they would provide to defendant R.L. Reppert, Inc.
IT IS ORDERED that judgment is granted in favor of
defendants R.L. Reppert, Inc.; Richard L. Reppert; the R.L.
Reppert, Inc. Employees Profit Sharing 40l(k)
Reppert,

Plan; and the R.L.

Inc. Money Purchase Plan (Davis Bacon Plan), against

All other parts of Count Four of plaintiff's Class Action
Complaint were dismissed by my Order and Opinion dated February 4 1 2016 and
filed February 5, 2016 granting in part and denying in part both plaintiff's
and defendants' cross-motions for summary judgment.

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plaintiff Derrick Askew on that part of Count One of plaintiff's
Class Action Complaint alleging that defendant R.L. Reppert,
Inc. improperly withheld any other custodial agreements {apart
from its agreement with the Nationwide Trust Company, FSB) in
violation of 29 U.S.C.

§§

1024 (bl 141, 1132 (cl ill.

IT IS FURTHER ORDERED that judgment is granted in
favor of plaintiff Derrick Askew against defendant R.L. Reppert,
Inc. in the amount of $15,959.00 on that part of Count One of
plaintiff's Class Action Complaint requesting penalties under
29 U.S.C.

§§

1024(bl 141, 1132(cl ill

for defendant R.L. Reppert,

Inc.'s failure to timely produce plan documents for the periods
December 6, 2008 to October 2, 2009 and May 17, 2012 to
January 1, 2015.
IT IS FURTHER ORDERED that judgment is granted in
favor of plaintiff Derrick Askew against defendant R.L. Reppert,
Inc. on that part of Count Four of plaintiff's Class Action
Complaint alleging that defendant R.L. Reppert, Inc. failed to
comply with the audit requirement set forth in 29 U.S.C.
§

1023(a) (3) (A) with respect to the 401(k)

Plan for the plan

years 2008 through 2011.
IT IS FURTHER ORDERED that judgment is granted in
favor of third-party defendant California Pension Administrators

& Consultants, Inc. against defendants and third-party
plaintiffs, R.L. Reppert, Inc.; Richard L. Reppert; the R.L.
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Reppert,

Inc. Employees Profit Sharing 401(k)

Plan; and the R.L.

Reppert,

Inc. Money Purchase Plan (Davis Bacon Plan}, on Counts

One and Two of their Amended Third Party Complaint.
IT IS FURTHER ORDERED that the Clerk of Court shall
enter judgment in favor of plaintiff Derrick Askew against
defendant R.L. Reppert,

Inc.

in the amount of $15,959.00.

IT IS FURTHER ORDERED that defendant R.L. Reppert,
Inc. shall have until March 30, 2017 to engage an independent
qualified public accountant to conduct an examination of the
financial statements, and of other books and records, of the
40l(k)
§

Plan, consistent with the requirements of 29 U.S.C.

1023(a) (3) (A) for the plan years 2008 through 2011 and to

amend the annual reports submitted on behalf of the 40l(k)

Plan

if necessary.
IT IS FURTHER ORDERED that the parties shall have
until on or before November 30, 2016 to file a petition for
attorney's fees and costs pursuant to 29 U.S.C. § 1132(g).
IT IS FURTHER ORDERED that the oral motion made at the
close of defendants' and third-party plaintiffs' case-in-chief
at trial on March 2, 2016 by third-party defendant California
Pension Administrators & Consultants,

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Inc. for judgment on

partial findings in accordance with Rule 52-(c)

of the Federal

Rules of Civil Procedure 3 is dismissed as moot.
IT IS FURTHER ORDERED that the Clerk of Court shall

mark this matter closed for statistical purposes.

BY THE COURT:

{2~/f:~C-CM~
United States District Judge

Notes of Testimony of the non-jury trial conducted on March 2,
2016 in Allentown, Pennsylvania, styled "Transcript of Non-Jury Trial - Day 3
of 3 Before the Honorable James Knoll Gardner[,] United States District
Judge" at pages 98-103.

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