The application of ERISA thus depends upon: 1) a determination of the time the cause of action arose, and 2) a determination of the time of acts or omissions. See Tanzillo v. Local Union 617, International Brotherhood of Teamsters, 769 F.2d 140, 143-44 (3d Cir. 1985); Menhorn v. Firestone Tire Rubber Co., 738 F.2d 1496, 1500-1501 (9th Cir. 1984); Quinn v. Country Club Soda Co., Inc., 639 F.2d 838, 840 (1st Cir. 1981). The district court concluded that plaintiffs met the first prong of the § 1144 test because their cause of action did not accrue until 1986 when the trustees formally denied benefits.

See id. Therefore, the Court concludes that Price, which only considered § 104 in dictum, did not interpret the second half of the statute. The Court of Appeals revisited § 104 in Tanzillo v. Local Union 617, 769 F.2d 140 (1985). The plaintiff in Tanzillo brought suit, among other purposes, to obtain copies of all collective bargaining agreements in effect between his local and Arrow, his former employer, during the years of his employment by Arrow.

(F) years of service before this part first applies to the plan if such service would have been disregarded under the rules of the plan with respect to breaks in service, as in effect on the applicable date; As the Third Circuit, in Tanzillo v. Local Union 617, 769 F.2d 140, 145 (3d Cir. 1985), recently noted: ERISA thus explicitly recognizes break-in-service forfeiture of those credits which had been accrued prior to the effective date of ERISA, if such break-in service forfeiture is provided for in the applicable plan document.

al Workers' Nat. PensionFund, Plan A,441 F.Supp.2d 405 (D.Conn. 2006)... 15 Rodriguez v. MEBA Pension Trust, 872 F.2d 69 (4th Cir. 1989)................ 8, 11 Romero v. Allstate Corporation, 404 F.3d 212 (3d Cir. 2005)................ 11 Rueda v. Seafarers Int'l Union of North America, 576 F.2d 939 (1st Cir. 1978)............... 16 Samaroo v. Samaroo, 193 F.3d 185 (3d Cir. 1999) 21 Sandy v. Reliance Standard Life InsuranceCompany, 222 F.3d 1202 (9th Cir. 2000)..... 16 Scharffv. Raytheon Co. Short Term Disability Plan, 581 F.3d 899 (9th Cir. 2009)................ 12 Shawley v. Bethlehem Steel Corporation, 989 F.2d 652 (3d Cir. 1993)................ 17 Sieggreen v. Unum Provident Corp., Not Reported in F.Supp.2d, 2002 WL 31357045 (E.D.Mich. 2002) 15 Stevens v. Employer-Teamsters Joint CouncilNo. 84 Pension Fund, 979 F.2d 444 (6th Cir. 1992) 9 Tanzillo v. Local Union 617, International Brotherhood of Teamsters, 769 F.2d 140 (3d Cir. 1985)............................. 8 Varity Corp. v. Howe, 516 U.S. 489, 116 S. Ct. 1065 (1996)....... 12 Watkins v. Westinghouse Hanford Co., 12 F.3d 1517 (9th Cir. 1993)............... 15 Williams v. Plumbers Steamfitters Local 60Pension Plan, 48 F.3d 923 (5th Cir. 1995).. 18 Winer v. Edison Brothers Stores Pension Plan, 593 F.2d 307 (8th Cir. 1981)................ 10 Wolf v. National Shopmen Pension Fund, 728 F.2d 182 (3d Cir. 1984)................ 15 FEDERAL STATUTES 28 U.S.C. § 1254(1)..................... 1 28 U.S.C. § 2101(c)..................... 1 29 U.S.C. § 1001- 1191b.................. 12 29 U.S.C. § 1002........................ 3 29 U.S.C. § 1002(2)..................... ii 29 U.S.C. § 1002(22)(B)................. 18 29 U.S.C. § 1002(37)(A)................. ii 29 U.S.C. § 1003(a)..................... 2 29 U.S.C. § 1003(b)..................... 2 29

We have also issued one precedential opinion addressing a similar issue. In Tanzillo v. Local Union 617, International Brotherhood of Teamsters, 769 F.2d 140 (3d Cir. 1985), we held that "ERISA . . . explicitly recognizes break-in-service forfeiture of . . . credits which had been accrued prior to the effective date of ERISA, if such break-in-service forfeiture is provided for in the applicable plan document." Id. at 145.

This has the effect of expanding ERISA preemption. The Third, Fourth, and Fifth Circuits have adopted this position. See Tanzillo v. Local 617, Int'l Bhd. of Teamsters, 769 F.2d 140, 144 (3d Cir. 1985); see also Rodriguez, supra; Woodfork, supra. Under this view, if the denial of benefits occurs after January 1, 1975, ERISA applies because the denial is both an "act or omission" and the accrual of the plaintiff's cause of action. The leading and most recent decision adopting this view was the Fourth Circuit in Rodriguez, which reasoned: "While a claim determination may require the plan's trustees to consider pre-ERISA acts, the act of denying a pension post-ERISA will invariably involve a `contemporaneous construction of the plan's provisions . . . to which ERISA's fiduciary standards apply.'"

Walsh asserts that all of the relevant acts in this case, decedent's 1955 beneficiary designation, the divorce and remarriage, occurred prior to the effective date of § 1144, and that ERISA preemption does not apply. As plaintiff points out, however, the sections of ERISA referenced in § 1144(a) are those which govern the conduct of fiduciaries, trustees and employers. This is illustrated in Tanzillo v. Local Union 617, International Brotherhood of Teamsters, 769 F.2d 140 (3d Cir. 1985). In that case, the issue was whether the court had jurisdiction over a claim based on a denial of pension benefits since the failure to fund the benefits took place prior to 1975, although the actual denial of pension benefits occurred after the effective date of ERISA. The issue, then, was the nature of the "act or omission" which would give the court jurisdiction.

Id. One view adopted by the Third, Fourth and Fifth Circuits treats the trustees' post-ERISA denial of a pension as the "act or omission" that is subject to ERISA. See Tanzillo v. Local 617, Int'l Bhd. of Teamsters, 769 F.2d 140, 144 (3d Cir. 1985); Rodriguez, supra; Woodfork v. Marine Cooks Stewards Union, 642 F.2d 966 (5th Cir. 1981). Thus, under this view if the denial occurs after January 1, 1975, it constitutes both "an act or omission" and the accrual of the plaintiff's cause of action.

Others have taken a contrary view, believing that the post-ERISA denial confers jurisdiction even though state law will largely or entirely control the result. Rodriguez v. MEBA Pension Trust, 872 F.2d 69, 72 (4th Cir.), cert. denied, — U.S. —, 110 S.Ct. 202, 107 L.Ed.2d 155 (1989); Tanzillo v. Local Union 617, 769 F.2d 140, 144 (3d Cir. 1985). The issue is complicated by the multitude of possible factual variations.

" The trial court concluded that even if the 1980 PM were arguably ambiguous, the appropriate test was whether GAF's interpretation was "arbitrary and capricious." Tanzillo v. Local617, I.B.T., 769 F.2d 140, 147 (3rd Cir. 1985); Struble v.New Jersey Brewery Employees' Welfare Trust Fund, 732 F.2d 325, 333 (3rd Cir. 1984). The Appellate Division affirmed in an unreported per curiam opinion on the basis of the opinion below.