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January 2, 1991

HOWARD BAER, INC., a Delaware Corporation, Defendant

The opinion of the court was delivered by: BUA


 Plaintiffs Central States, Southeast and Southwest Areas Pension Fund, and Howard McDougall as trustee ("Pension Fund") bring this suit under the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., as amended by the Multiemployer Pension Act Amendments of 1980. Plaintiff Pension Fund seeks employer contributions from defendant Howard Baer, Inc. ("Baer") under the terms of ERISA as well as the terms of agreements between the parties.

 As part of a collective bargaining agreement between Baer and Local Union No. 327 and/or 627 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Baer agreed to make contributions to the Pension Fund on behalf of covered employees. Baer also agreed to abide by the provisions of the Pension Fund trust agreement. On November 1, 1983, Baer entered into a participation agreement to that effect.

 The Pension Fund alleges that Baer breached the collective bargaining agreement, the Pension Fund trust agreement, the participation agreement, and ERISA by failing to pay all the contributions owed to the Pension Fund based on work history reported for the period March 4, 1990 through June 30, 1990. The Pension Fund further claims that Baer failed to properly report the work history of eligible employees from June 29, 1980 to December 27, 1986, from December 28, 1986 to December 30, 1989, and from December 31, 1989 to the present. Baer allegedly owes contributions based on that inaccurate reporting.

 The Pension Fund asks for injunctive relief enjoining Baer from violating the provisions of ERISA, the Pension Fund trust agreement, the participation agreement and the collective bargaining agreement. In addition, the Pension Fund requests that defendant pay all contributions owed to date along with interest, attorneys' fees and costs.

 In his answer, Baer asserts a counterclaim. The company alleges that it mistakenly paid certain sums of money to the Pension Fund during the period June 29, 1980 to March 1990. Baer seeks repayment of those sums.

 The Pension Fund moves to dismiss Baer's counterclaim. For the reasons stated below, their motion is denied.


 Plaintiff Pension Fund points to three obstacles impeding Baer's counterclaim. First, the court does not have jurisdiction over an employer's claim for refund of overpayment. Second, an employer does not have a cause of action for recovery of mistaken contributions. Third, even if there is a cause of action, Baer has failed to exhaust administrative remedies before bringing suit. The court will face each obstacle in turn.

 I. Jurisdiction

 The Pension Fund is correct in arguing that the court does not have jurisdiction over this matter by virtue of the statutory provisions of ERISA. 29 U.S.C. § 1132(e) (1) merely provides for exclusive federal jurisdiction over civil actions brought by the Secretary or the participants, beneficiaries, or fiduciaries of a plan. The section makes no provision for employers. Nevertheless, the court has jurisdiction to hear the matter under 28 U.S.C. § 1331 which gives federal courts jurisdiction to hear civil matters arising under federal law. As long as a matter "requires the construction of a federal statute or a distinctive policy of a federal statute requires the application of federal legal principles for its disposition", a federal court may entertain the claim. Lindy v. Lynn, 501 F.2d 1367, 1369 (3d Cir. 1974). Baer relies on 29 U.S.C. § 1103(c)(2)(A) to bring his counterclaim. Resolution of the claim necessarily requires construction of this statutory provision. Further, since the provisions of ERISA preempt state law in the area of employee benefit plans, determinations of ERISA matters, such as the refund of contributions, directly implicate federal law and policy. See 29 U.S.C. § 1144(a); Martin v. Hamil, 608 F.2d 725, 729 (7th Cir. 1979). Accordingly, the court may hear the counterclaim. One obstacle down.

 II. Cause of Action

 Turning to the cause of action hurdle, it is clear from the provisions of ERISA that employers are permitted to obtain refunds for overpayment of employer contributions to ERISA plans. 29 U.S.C. § 1103(c)(2)(A). *fn1" Less clear is whether employers have the right to seek refunds for overpayment. ERISA provisions do not provide for an explicit cause of action to recover mistakenly-paid employer contributions. And, a vast majority of courts have concluded that a cause of action cannot be implied from the provisions. See Soft Drink Industry Local Union No. 744 Pension Fund v. Coca-Cola Bottling Co., 679 F. Supp. 743, 748 (N.D.Ill. 1988) ("no implied right of action for an employer under the refund section"); Dime Coal, Co. v. Combs, 796 F.2d 394, 398 (11th Cir. 1986) (no indication in statute or its legislative history that Congress intended an implied cause of action for employer overpayment); Crown Cork & Seal Inc. v. Teamsters Pension Fund, 549 F. Supp. 307, 311 (E.D. Pa. 1982) (no "basis from which to infer an implied right of action for restitution by an employer"), aff'd, 720 F.2d ...

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