472 F2d 1169 Nelson v. American Air Filter Company Inc

472 F.2d 1169

Richard H. NELSON, Plaintiff-Appellant,

No. 26695.

United States Court of Appeals,
Ninth Circuit.

Jan. 16, 1973.

John W. Sheehy, Jr. (argued), Marvin D. Morgenstein, of Steinhart, Goldberg, Feigenbaum & Ladar, San Francisco, Cal., for plaintiff-appellant.

Arthur B. Dunne (argued), of Dunne, Phelps & Mills, San Francisco, Cal., for defendant-appellee.

Before CHAMBERS, DUNIWAY and GOODWIN, Circuit Judges.


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Richard H. Nelson appeals a summary judgment which held that he was not entitled to participate in a pension plan created seven years after he left the employment of American Air Filter Co., Inc. We affirm.


Nelson was formerly employed by The Herman Nelson Corporation, and was a participant in its employee-pension plan. While so employed, Nelson became eligible to take a "leave of absence" that would protect his benefits under the existing Herman Nelson pension plan in the event of the termination of his employment before he reached retirement age. In 1950, Herman Nelson was merged with American Air Filter Co., Inc. Nelson continued to work for American Air Filter until 1960, when he was placed on a "leave of absence." He performed no further services. After nine years on "leave," Nelson reached retirement age, and in 1969 began drawing the benefits to which he was entitled under the Herman Nelson plan.


American Air Filter Co., Inc., in 1967 established a new pension plan whose benefits were greater than those enjoyed by Nelson under his old plan. He applied for the enhanced benefits, but was denied participation in the 1967 plan on the ground that the plan, by its terms, excluded from coverage any employee whose "employment terminated" before the effective date of the plan. The district court held that Nelson's employment had terminated in 1960, and that he was not entitled to participate in a voluntary plan created after his employment had ceased. This was a correct construction of the operative facts and documents.