On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 87-0005.
Gibbons, Chief Judge, Becker and Weis, Circuit Judge
Joseph W. Hlinka appeals from a summary judgment in favor of the defendants, Bethlehem Steel Corporation (BSC), the Bethlehem Pension Board, and the Bethlehem Plan Administrator in Hlinka's suit under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. (1982). When reviewing grants of summary judgment, our scope of review is plenary. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977). We will affirm.
Hlinka was hired by BSC on April 2, 1962. He is presently a salaried senior research fellow, and is a participant in the BSC pension plan.*fn1 In January 1986, after twenty-four years of continuous service with the company, fifty-six year old Hlinka applied for a 70/80 retirement pension.*fn2
The plan administrator determined that Hlinka was not entitled to a 70/80 retirement pension because he did "not satisfy the eligibility requirements of subparagraphs (a), (b), or (c) of paragraph 2.6 of the plan [and] with respect to paragraph 2.6(d), [the] employing company Bethlehem Steel Corporation, has not indicated that it considers [his] retirement to be in its interest . . ." Letter dated July 15, 1986. Hlinka was provided with a description of the review procedure and was invited to submit additional information he considered relevant to his case along with a request for review. On September 15, 1986, in a meeting that Hlinka was not permitted to attend, the pension board reviewed Hlinka's claim and upheld the plan administrator's decision that Hlinka was ineligible for a 70/80 retirement pension.
Hlinka then brought this action. He alleges violations of sections 403, 404, and 503 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1103, 1104, and 1133 (1982).
Hlinka contends that there are genuine issues of material fact which precluded the issuance of summary judgment in favor of the defendants. Summary judgment is merited when the moving party is entitled to a judgment as a matter of law because there is no genuine issue of material fact. Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir. 1980). The Supreme Court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), defined a material fact as one which "might affect the outcome of the suit under governing law . . . ." A determination of materiality is contingent upon the substantive law as it determines the factual disputes crucial to the establishment of the legal elements of the claim at issue. Id.
The first "factual dispute" identified by Hlinka is the district court's description of the 70/80 pension provision as an "early" retirement plan. The statutory language of ERISA and BSC's pension plan stipulate that the age of "normal retirement" is sixty-five.*fn3 Thus, allowance in the 70/80 provision for retirement at an earlier age legally creates an "early" retirement benefit. The fact that the Plan does not expressly use the word "early" is not consequential.
Secondly, Hlinka challenges the district court's finding that BSC had only twice previously used the 70/80 retirement provision. He refers to his affidavit where in paragraph six he states: "I believe and therefore aver that hundreds of persons like me, eligible for a 70/80 Retirement, were granted such benefits and that the situation of such persons was no different than mine. . . ." Additionally, paragraphs seventeen and eighteen contain statements that Hlinka "believe[s] and therefore aver[s]" that two high level officials are currently receiving pensions to which they are ineligible. This court in Maldonado v. Ramirez, 757 F.2d 48, 50 (3d Cir. 1985), indicated that Federal Rule of Civil Procedure 56(e) requires that an affidavit in opposition to a motion for summary judgment must be based "on personal knowledge", must establish "such facts which would be admissible" and must "show affirmatively that the ...