SCIRICA, Circuit Judge.
This is an appeal from a grant of summary judgment in an action brought under the Employee Retirement Income Security Act and the Labor Management Relations Act. The district court held that the statute of limitations barred the claim and was not tolled because plaintiff failed to exercise reasonable diligence in discovering the claim. We will affirm.
I.
Defendant Vic's Market ("Vic's") owns and operates two grocery stores. In 1981, Vic's entered into a three-year collective bargaining agreement with United Food and Commercial Workers Union Local 1407 (now Local 23). The collective bargaining agreement provided that Vic's would make payments to health, legal, and pension benefit trust funds on behalf of Vic's employees, other than "customer service employees," also known as baggers. Under Article 29 of the collective bargaining agreement, baggers, whose permissible duties were limited, could not constitute more than ten percent of Vic's workforce.
Effective dates 7/12/81-7/15/84.
Plaintiff Trustees sued Vic's on August 25, 1988, claiming that Vic's owed past-due benefit payments because it breached the agreement's ten-percent ceiling. Monthly figures supplied to the Trustees by Vic's clearly showed that the ten-percent ceiling was exceeded, often substantially, in 29 of the 31 months at issue. For example, in November 1982, the Vic's-supplied figures showed that Vic's was employing almost four times as many baggers as was permitted by Article 29. Also, in 1987, an audit by the Trustees discovered monthly underreporting of baggers. Indeed, for December 1983, the Vic's-supplied figures showed that 14.3% of its employees were baggers, but the audit fixed the figure at 53%. The Trustees maintain the remedy for these breaches of Article 29 is that for benefit-fund contribution purposes, any baggers over the ten-percent cap should be treated as if they had been benefit-eligible regular employees. The Trustees sued for these contributions under Sections 502(a)(3), 502(e), 502(f) and 515 of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1132(a)(3), (e), (f), and 1145 (1982), and under Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185 (1982).
Trustees claim the unpaid contributions amount to: Health Fund $ 5,244.00 Pension Fund 13,840.85 Legal Fund 4,612.48
Vic's claims the suit is barred by the three-year statute of limitations. The Trustees contend that the statute was tolled. The Trustees maintain that their agents who were monitoring trust fund payments were ignorant of the ten-percent limitation in the collective bargaining agreement and therefore failed to notice that the monthly figures supplied by Vic's plainly showed the ceiling was routinely and substantially exceeded. In addition, the Trustees argue even if their agents had known of Article 29, they would not, with reasonable diligence, have detected the employees not reported by Vic's.
Vic's responds that the Trustees' failure to inquire further when Vic's monthly contributions forms on their face showed continuing more than de minimis breaches of Article 29, and the Trustees' failure to inform their agents who monitored trust fund contributions of the terms of the contract, constitute an unreasonable lack of diligence. With reasonable diligence, according to Vic's, the Trustees would have seen the continuing breach, and would have investigated and acted upon it and on any underreporting revealed by an investigation. Vic's argues that under Pennsylvania tolling principles, the statute cannot be tolled when plaintiff has failed to use reasonable diligence which would have revealed the existence of a cause of action.
Our review is plenary of the district court's interpretation of the applicable tolling principles and of its conclusion, based on the undisputed facts in the record, that the circumstances did not give rise to a tolling of the statute of limitations.
II.
We must first determine the proper statute of limitations. ERISA contains no applicable statute of limitations. Trustees for Alaska Laborers v. Ferrell, 812 F.2d 512, 516 (9th Cir. 1987). When ERISA lacks an applicable limitations statute, the courts are obliged to apply the most analogous state statute of limitations. Connors v. Consolidation Coal Co., 866 F.2d 599, 603 (3d Cir. 1989) (citing DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 158-60, 103 S.Ct. 2281, 2287-89, 76 L.Ed.2d 476 (1983)). Similarly, because the LMRA lacks an explicit limitations period for this type of action reference to the most analogous state statute of limitations is appropriate. Byrnes v. DeBolt Transfer, Inc., 741 F.2d 620, 625 (3d Cir. 1984).
In Teamsters Pension Trust Fund v. John Tinney Delivery Service, Inc., 732 F.2d 319, 322 (3d Cir. 1984), a case brought in Pennsylvania to recover unpaid benefits under the LMRA, we applied the three-year statute of limitations period in Pennsylvania's Wage Payment and Collection Law, 43 Pa.S.A. § 260.9a(g) (Purdon Supp. 1989) as the most analogous state statute. Because the action is essentially the same under the LMRA and ERISA, we will apply Tinney to ERISA. Because the contracts in question terminated in July 1984 and the action was brought in August 1988, the Trustees' action is barred by the statute of limitations, unless its running is tolled.
The alternative would be Pennsylvania's four-year limitations period for contracts. 42 Pa.C. S.A. § 5525 (Purdon Supp. 1989). The outcome in this case is not affected by the choice between three-year and four-year periods. Should a case present itself in which the difference were determinative, Judge Scirica believes that our Court of Appeals may wish to reconsider Tinney in light of three factors: (1) Every court of appeals, save ours, to have selected a state limitations statute to apply to pension actions has chosen the state's general contract limitations period; Robbins v. Iowa Road Builders Co., 828 F.2d 1348 (8th Cir. 1987), cert. denied sub nom. Easter Enterprises, Inc. v. Robbins, 487 U.S. 1240, 108 S.Ct. 2914, 101 L.Ed.2d 945 (1988); Trustees of the Wyoming Laborers Health Welfare Plan v. Morgen Oswood, 850 F.2d 613, 620-21 (10th Cir. 1988) (citing cases); (2) The Supreme Court, in Central States, Southeast Southwest Areas Pension Fund v. Central Transport, Inc., 472 U.S. 559, 105 S.Ct. 2833, 86 L.Ed.2d 447 (1985), and Schneider Moving Storage Co. v. Robbins, 466 U.S. 364, 104 S.Ct. 1844, 80 L.Ed.2d 366 (1984), has viewed pension-type actions as founded on the benefit trust agreements (contracts) rather than upon the collective bargaining agreements (wages); and, (3) The federal government has an interest, via the Pension Benefit Guarantee Corp. (PBGC), in the financial integrity of pension trust funds that may lead us to give actions involving trust funds a longer limitations period, if the choice between two limitations periods is, as here, not clear cut. This federal policy interest differs from a state's interest in rapid settlement of labor disputes in order to promote labor harmony.
III.
In Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-64, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295 (1975), the Court held that state tolling principles are generally to be used by a federal court when it is applying a state limitations period
Any period of limitation . . . is understood fully only in the context of the various circumstances that suspend it from running against a particular cause of action. . . . In borrowing a state period of limitation for application to a federal cause of action, a federal court is relying on the State's wisdom in setting a limit, and exceptions thereto, on the prosecution of a closely analogous claim.
Id. at 463-64, 95 S.Ct. at 1722. The Court explained, however, that the rule need not be followed when state tolling principles are not consistent with underlying federal policy:
Although state law is our primary guide in this area, it is not, to be sure, our exclusive guide. . . . [C]onsiderations of state law may be displaced where their application would be inconsistent with
the federal policy underlying the cause of action under consideration.
Id. at 465, 95 S.Ct. at 1722.
Under Pennsylvania tolling principles, the statute is tolled until "plaintiffs knew or using reasonable diligence should have known of the claim." Urland v. Merrell-Dow Pharmaceuticals, Inc., 822 F.2d 1268, 1272 (3d Cir. 1987). "[T]he Supreme Court of [Pennsylvania] views tolling of the statute of limitations in terms of the `knew or should have known' standard whether the statute is tolled because of the discovery rule or because of fraudulent concealment." Id. at 1273. Reasonable diligence has been defined as follows: "There are very few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful. This is what is meant by reasonable diligence." Ibid. (quoting from Deemer v. Weaver, 324 Pa. 85, 90, 187 A. 215, 217 (1936)). Knowledge of the claim also has been defined: "plaintiffs need not know that they have a cause of action or that the injury was caused by another party's wrongful conduct," id. at 1275, for "`once [a plaintiff] possesses the salient facts concerning the occurrence of his injury and who or what caused it, he has the ability to investigate and pursue his claim,'" ibid. (quoting Berardi v. Johns-Manville Corp., 334 Pa. Super. 36, 44, 482 A.2d 1067, 1071 (1984) (emphasis in original)).
We find inapposite the dissent's argument to distinguish Urland on its facts. We cite Urland, a federal diversity case, only for its statement of governing Pennsylvania law, which cannot have been dependent on the facts of Urland.
Thus, under Pennsylvania's tolling principles, the Trustees need only meet the standard of reasonable diligence in order for the statute to be tolled. These tolling principles are not inconsistent with federal law. Cf. Byrnes v. DeBolt Transfer, Inc., 741 F.2d 620 (3d Cir. 1984).
In Byrnes, a case brought under ERISA and the LMRA, we remanded to the district court, which had declined to toll the statute of limitations. Instructing the district court to review certain cases from other jurisdictions in light of Pennsylvania law, we noted that it might be proper to toll the statute, but only "until the Funds should reasonably have learned of the breach." Byrnes, 741 F.2d at 626 (citations omitted). Plainly, we did not instruct the district court to consider applying tolling principles that were inconsistent with federal law.
IV.
It is undisputed that month after month, for over two years, Vic's supplied the Trustees with figures showing the number of baggers and total employment at Vic's two markets. Because the ceiling on baggers was ten percent, the Trustees needed only to move the decimal point in the total employment number and compare the resulting number to the number of baggers reported. Had the Trustees done so, they would have known instantly that Vic's was in continuing more than de minimis breach of contract. A reasonably diligent agent for the Trustees would perform such an easy calculation. Furthermore, the records show that the Trustees did not simply receive and file Vic's monthly reports. Affidavits submitted by the Trustees state that their agents frequently revised the reported figures, based on information from the union or elsewhere, in order to make corrections ( see, e.g., A-291a).
E.g., if total employment were 135 in some month, the Trustees needed only to compare 13.5 to the number of baggers reported to determine if Vic's was complying with Article 29.
The Trustees' argument that the simple calculation was not performed because they had not informed their agents about Article 29 cannot support an assertion of reasonable diligence. If, as Trustees now claim, the remedy for Vic's breach of Article 29 was that benefits payments were due for all baggers above the ten-percent limit, then reasonable diligence required notification to their agents of Article 29. The Trustees' failure to inform their agents cannot constitute reasonable diligence, particularly where, as here, the contract was not long and Article 29 appeared on the page immediately following the articles setting forth Vic's other benefits payments obligations. We hold, therefore, that the Trustees' conduct, including its failure to inform its agents of Article 29 and its failure to perform a simple calculation with figures supplied by Vic's on forms provided by the Trustees, cannot amount to reasonable diligence that would toll the statute. We hold that the information, in such readily digestible form, possessed by Trustees should have informed them of their injury and that Vic's was its cause.
V.
The Trustees argue that even if they should have known about Vic's continuing breach of Article 29, the statute of limitations should be tolled nonetheless as to the additional excess baggers that Vic's failed to report or deliberately concealed. This argument confuses the existence of a breach with the extent of the breach. If, as in December, 1982, the number of unreported baggers raised the percentage of employees who were baggers to 40% from the 35% reported by Vic's, the extra 5% does not constitute an independent breach of Article 29, but only amounts to an increase in the extent of the breach. A single breach of Article 29 occurred each month that the ten-percent ceiling was exceeded. Therefore, each month that the figures Vic's supplied showed that the ten-percent ceiling was exceeded by a more than de minimis amount, the Trustees would, with reasonable diligence, have had knowledge of a cause of action. As we have noted, the breaches apparent from the figures supplied by Vic's were occasionally very large. Therefore, the Trustees cannot maintain that they were lulled into inaction by reported de minimis breaches, only to discover later that claims for concealed more than de minimis breaches had become time-barred. In any event, the Trustees were not lulled into inaction because, by admission, they were not monitoring the figures for compliance with Article 29. By August 1987, the statute of limitations had extinguished each month's cause of action for breach of Article 29. The causes of action are not revived by the fact that the Trustees, who through unreasonable lack of diligence were ignorant of the existence of continuing more than de minimis breaches, were also ignorant of the extent of those breaches.
We do not believe that the dissent's argument that each unreported bagger gives rise to a separate claim is relevant to the issue of tolling. Regardless of how the failure to report baggers is characterized, once Vic's actually reported a large number of excess baggers, the Trustees were on "inquiry notice" that Article 29 had been breached, and should have exercised reasonable diligence, which readily would have led to discovery of the unreported baggers. Further, we find inapposite the sections in Corbin on Contracts cited by the dissent.
Our holding today would not control a case in which the observable breaches were de minimis.
For a few of the months of the contract, Vic's figures revealed no breach of Article 29. But these months were sandwiched by numerous months in which more than de minimis breaches were observable from Vic's figures. A reasonably diligent trustee, faced with continuing more than de minimis breach of Article 29, and also faced with what Trustees' affidavits refer to as frequent instances in which Trustees discovered, at the time, that Vic's figures were inaccurate (A-291a, 295a), would have undertaken further investigations and actions instead of remaining inert until well after the statute had run.
The dissent asserts that we "[impose] a standard of diligence that suggests that even when an employer deliberately conceals or negligently fails to report relevant information . . . trustees . . . must know or assume the facts that the employer failed to report," noting that trustees "are not omniscient." Our holding today, of course, does not hold Trustees to a standard of omniscience. We only hold Trustees to the standard of exercising reasonable diligence with the facts in their possession. As the Supreme Court has noted:
"Statutes of limitations, which `are found and approved in all systems of enlightened jurisprudence,' represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that `the right to be free of stale claims in time comes to prevail over the right to prosecute them'. . . . [W]e are not free to construe [the statute of limitations] so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims. . . . We should regard the plea of limitations as a `meritorious defense, in itself serving a public interest."
United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979) (citations omitted.)
For these reasons, we will affirm the judgment of the district court.