Board of Trustees of the District No. 15 MacHinists Pension Fund v. Kahle Engineering Corporation, a New Jersey Corporation

ALARCON, Circuit Judge,

dissenting:

In this matter, we must decide when a cause of action arises under the MPPAA for the unpaid balance of an employer’s liability after the employer has withdrawn from a pension fund. The district court concluded that the clock begins to run from the date an employer first fails to make a scheduled payment. Because the current action for the unpaid balance was filed nine years after the first missed payment, the district court dismissed this matter as barred by the six-year statute of limitations.

The Board of Trustees of District No. 15 Machinists Pension Fund (“Fund”) contends that its time for filing an action for the unpaid balance runs six years from the date of the last scheduled payment set forth in the Fund’s formal demand letter. Unfortunately, the majority has been persuaded by this argument. The majority holds today that a cause of action for the unpaid balance of an employer’s liability to a pension fund is not barred by the statute of limitations if it is filed within six years of the last scheduled payment even if the employer failed to make *862any quarterly payments for twenty years. Majority opinion at 860-61. Because it is my view that the majority’s decision finds no support in the text of the MPPAA, and is contrary to the law of the Third Circuit regarding the application of statutes of limitations, I must respectfully dissent.

In the MPPAA, Congress provided two straightforward options to a pension fund when an employer fails to make a scheduled payment on the liability flowing from a withdrawal. The pension fund may bring an action for the missed payment within six years. The pension fund may choose, instead, to bring an action for the entire unpaid balance within six years of the first missed payment.

The majority has created a third option for the pension fund. Under this option, the Fund may elect not to bring an action either for the first missed payment, or for the unpaid balance, within six years of the default. Instead, the pension fund may “cho[o]se to wait twenty years to pursue its cause of action” for the unpaid balance, and would be able “to collect the last six years of installments.” Majority opinion at 860.

Contrary to the majority’s view, the MPPAA does not place the fixing of the date that the cause of action accrues for the unpaid balance in the exclusive and unreviewable control of the pension fund, regardless of the prejudice to the defendant caused by delay in prosecuting the claim. The MPPAA provides that an action must be filed within six years after the employer defaults. Because this action was filed more than six years after the employer missed its first scheduled payment, I would affirm the district court’s order dismissing this action.

I.

Before explaining the rationale that motivates my dissent, I will set forth the facts pertinent to this appeal. Kahle was a member of a multiemployer pension plan sponsored by the Fund. In 1981, Kahle was involved in a labor dispute with its employees. As a result, the company suspended its contributions to the Fund. On April 23, 1984, the Fund determined that the labor dispute had terminated Kahle’s obligation to continue making payments. The Fund concluded that Kahle had effected a complete withdrawal from the pension plan. Accordingly, the Fund sent Kahle a notice of its assessment obligation of $271,746 along with a schedule of quarterly payments and a demand for payment of the initial quarterly obligation of $9,467. The payment schedule required that Kahle make thirty-eight additional payments of $9,467, and a final payment of $6,459. The Fund also notified Kahle that the failure to begin payment as required would entitle the Fund to seek immediate payment of the full amount of withdrawal liability.1

Kahle made its initial quarterly payment on July 2, 1984. That same day, Kahle informed the Fund that it had not withdrawn. Kahle also requested a review of the Fund’s determination that it had completely withdrawn.

On August 2, 1984, the Fund requested that Kahle provide additional information concerning the labor dispute in order that the Fund could investigate Kahle’s claim that it did not withdraw. On September 13,1984, Kahle responded to the Fund’s request for additional information and also informed the *863Fund that it would discontinue making quarterly payments.

On December 20, 1984, Kahle sent the Fund a letter which included a demand to arbitrate the pension dispute. The next day, the Fund sent a letter to Kahle in which it explained that it had found no basis for altering its prior decision that Kahle had completely withdrawn. The Fund also warned Kahle that it had defaulted on its payments and that, if not cured by January 1,1985, the Fund would declare a default and “seek all remedies available to it” against Kahle.2

On December 28, 1984, the Fund’s attorney notified Kahle that Kahle’s “letter of December 20,1984, ... must have crossed in the mails with mine of December 21, 1984.” The Fund’s December 28 letter reiterated its position that there was no basis for reversing its conclusion that Kahle had withdrawn from the plan. The Fund again advised Kahle that it was in default in its payment and stated further that unless the missed payment was made, the Fund would “seek all remedies available to it.”

Kahle did not make any further payments nor did it initiate arbitration proceedings. As the Fund candidly admitted in argument before the district court, it took no further action against Kahle until 1988.3

On August 9, 1988, the Fund sent Kahle a letter which stated:

This letter is to inform you that the company is in default in its withdrawal liability payments. We hereby demand, on behalf of the Fund, that the company immediately make all the past due payments, plus interest. The interest shall be equal to the current prime rate, accruing from the date each such payment was due. If you do not make such payments, including interest, within sixty (60) days from the date you received this letter, the Fund will require, in accordance with the Multiemployer Pension Plan Amendments Act of 1980, immediate payment of the total withdrawal liability, plus interest accruing from the date the first payment was due. If necessary, the Fund will file an action in the United States District Court to enforce the company’s obligation to pay.

Kahle did not make any payments in response to this second notification of its default. Over five years later, and nearly nine years after Kahle missed its first payment, on September 28, 1993, the Fund filed this action seeking payment of the unpaid balance of Kahle’s withdrawal liability. The district court granted Kahle’s motion for summary judgment on the basis that the Fund’s action was barred by the six year statute of limitations period in 29 U.S.C. § 1451(f)(1).

II.

The Fund contends that this action is not barred by the six-year statute of limitations. It argues that its claim for the unpaid balance did not accrue until it gave Kahle notice on August 9, 1988 that if all past-due payments were not made within 60 days, it *864would file an action for the total well-drained liability. According to the Fund,

there are two (2) types of accrual dates for collection of withdrawal liability assessment. One occurs when an installment payment is omitted. At that point the pension fund has the right to bring suit for that one (1) payment. The second is when the pension fund exercises its option to accelerate the outstanding balance after the employers failure to cure a default. If the employer does not meet the pension fund’s demand for the entire- outstanding balance, a cause of action accrues for the total amount.

Appellant’s Opening Br. at 21.

The Fund asserts that the district court erred by

failing to distinguish between the accrual of a cause of action for one installment payment and for the total outstanding amount of the assessment. Although the district court stated that it was following Sandoz when it held that the Pension Fund’s cause of action triggering the commencement of the MPPAA’s six-year statute of limitations accrued in October 1984 or December 1984, it actually followed the Court of Appeals for the Seventh Circuit’s decision in Central States Pension Fund v. Navco, 3 F.3d 167 (7th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1062, 127 L.Ed.2d 382 (1994).

Appellant’s Opening Br. at .23-24.

The Fund’s reliance on Joyce v. Clyde Sandoz Masonry, 871 F.2d 1119 (D.C.Cir.), cert. denied, 493 U.S. 918, 110 S.Ct. 280, 107 L.Ed.2d 260 (1989), is misplaced. There is no intercircuit conflict on the issue presented in this ease. A careful reading of the Navco and Sandoz decisions demonstrates that these cases do not support the Fund’s and the majority’s interpretation of the applicable statutes.

In Navco, two pension funds, the Central States, Southeast and Southwest Areas Pension Fund (“Teamsters Fund”) and the Chicago Truck Drivers, Helpers and Warehouse Workers Union Pension Fund (“Independent Fund”), filed actions against Navco for withdrawal liability payments. Navco, 3 F.3d at 169. The employers had completely withdrawn from their multiemployer pension funds in January 1984. Id.

On April 6,1984, the Teamsters Fund sent a formal notice of withdrawal liability and a demand' for payment to the employers. Id. at 170. ' The employers were given sixty days to make the demanded payment. Id. No payments were made in response to the demand. Id. More than seven years after its demand, on May 1, 1991, the Teamsters Fund filed its cause of action. Id.

The district court granted the defendants’ motion for summary judgment. Id. The court held that the action was barred by the six-year statute of limitations, which began to accrue on June 5, 1984, when the demanded payment became delinquent. Id. On appeal, the Teamsters Fund argued that the district court erred when it held that the claim began to accrue when the payment became overdue. Id.

On June 19, 1984, the Independent Fund sent the employers a notice, payment schedule, and demand for payment as a result of their withdrawal from the pension fund. Id. Pursuant to the schedule, quarterly payments were to begin on July 1, 1984, and continue until July 1,1986. Id. The employers never made any payments. Id. Nearly eight years after its demand, on March 13, 1992, the Independent Fund filed its cause of action. Id.

The district court granted the employers’ motion for summary judgment. Id. The court held that the Independent Fund’s action was barred by the statute of limitations because the claim began to accrue on July 1, 1984. Id. The district court rejected the Independent Fund’s argument that a claim accrues for the unpaid balance each time the employer fails to make a scheduled quarterly payment. Id. On appeal, the Independent Fund asserted that the cause of action began to accrue when it learned the identity of persons within the control group who had the ability to pay the withdrawal liability, as opposed to when the payment became overdue. Id. The Independent Fund also reiterated its argument that a cause of action accrued each time the employer failed to *865make a required quarterly payment. Id. at 172.

The Seventh Circuit in Navco consolidated the appeals of the Teamsters Fund and the Independent Fund. Id. at 170. The Navco court affirmed the grant of summary judgment by both of the district courts. The Seventh Circuit held that “the claim [for an employer’s withdrawal liability] accrues as soon as payment becomes overdue.” Id. at 172. Because the funds filed their actions more than six years from the date when the employers failed to make their scheduled payments, the Seventh Circuit held that the actions were barred by the statute of limitations. Id. Additionally, the Navco court rejected the Independent Fund’s contention that a claim begins to accrue each time an employer fails to make a scheduled payment. Id. The court held that the “pension fund had only one claim, against the employer ...: the amount of withdrawal liability.... [T]he whole amount [of withdrawal liability] is presumptively due at the outset.” Id.

In Sandoz, the trustee of the Bricklayers and Trowel Trades International Pension Fund filed an action to collect the accelerated balance of the employer’s pension withdrawal liability. Sandoz, 871 F.2d at 1121. Between 1977 and June 30, 1981, Sandoz made payments to the pension fund. Id. On July 16, 1981, a new collective bargaining agreement was reached between Sandoz and its employees. Id. The agreement did not include an obligation by Sandoz to continue making payments to the pension fund. Id. Sandoz made a pension fund payment for work performed by its employees from July 1 until July 15, 1981. Id. Sandoz made no further payments. Id.

On July 13, 1987, the fund sent Sandoz a notice of withdrawal liability along with a payment schedule. Id. On the same day, the fund filed its action. Id. On October 8, 1987, the fund notified Sandoz that it failed to make its scheduled payment and would be in default unless it paid within sixty days. Id. Sandoz did not make any payments in response to the fund’s letter. Id.

The district court dismissed the fund’s action because it was not filed within the six year statute of limitations period. Id. The district court ruled that the cause of action began to accrue when the employer completely withdrew from the plan on June 30, 1981. Id. On appeal, the fund asserted that the cause of action began to accrue when the employer failed to make a scheduled payment after receiving a demand. Id. at 1122.

The D.C. Circuit in Sandoz vacated the judgment of the district court. Id. at 1127. The court held that

the [pension] plan is “adversely affected” (and thus that a “cause of action” arises) when the plan has not received payments which are due and owing. The language of the statute points firmly in the direction of the conclusion that Sandoz’s uncured failure to pay the sum demanded adversely affected the plan giving rise to a cause of action.

Id. at 1122. The D.C. Circuit rejected the district court’s determination that the cause of action begins to accrue on the day the employer completely withdraws from the fund. Id. at 1123.

Thus, both the Seventh Circuit in Navco and the D.C. Circuit in Sandoz each concluded that a cause of action for withdrawal liability payments under the MPPAA begins to accrue when an employer fails to make a scheduled payment. Contrary to the Fund’s position in this matter, there is no conflict between the Seventh Circuit and the D.C. Circuit regarding the determination as to when a cause of action begins to accrue. The difference between Navco and Sandoz is that the Navco court expressly rejected an argument which is also raised by the Fund in this case, namely, that a cause of action accrues each time an employer fails to make a scheduled payment after receiving a demand. Navco, 3 F.3d at 172. This issue was not presented to the D.C. Circuit in Sandoz. Neither Navco nor Sandoz support the Fund’s argument in this matter that the statute of limitations does not begin to run until six years after the last scheduled payment is due.

Under the MPPAA, after an employer withdraws from a fund, “(1) [a]s soon as practicable after an employer’s complete or partial withdrawal, the plan sponsor shall— *866(A) notify the employer of — (i) the amount of the liability, and (ii) the schedule for liability payments, and (B) demand payment in accordance with the schedule.” 29 U.S.C. § 1399(b)(1). The statute further provides:

In the event of a default [of a scheduled payment], a plan sponsor may require immediate payment of the outstanding amount of an employer’s withdrawal liability, plus accrued interest on the total outstanding liability from the due date of the first payment which was not timely made. For purposes of this section, the term “default” means—
(A) the failure of an employer to make, when due, any payment under this section, if the failure is not cured within 60 days after the employer receives written notification from the plan sponsor of such failure, and
(B) any other event defined in rules adopted by the plan which indicates a substantial likelihood that an employer will be unable to pay its withdrawal liability.

29 U.S.C. § 1399(c)(5).

An action under the MPPAA may not be brought more than “6 years after the date on which the cause of action arose.” 29 U.S.C. § 1451(f)(1). Pursuant to section 1399(c)(5), the cause of action for the outstanding amount of an employer’s liability arises upon the employer’s failure to make a scheduled payment. See Navco, 3 F.3d at 172 (claim begins to accrue when a scheduled payment is overdue); Sandoz, 871 F.2d at 1122 (same). However, a pension fund is not permitted to file its action for withdrawal liability payment(s) until it has sent an employer the notice described in section 1399(c)(5). The notice represents a condition precedent which must be satisfied by a fund before it may file its cause of action.

The MPPAA makes clear that a multiem-ployer pension fund has the option after notifying an employer of a default of (1) filing an action for a missed payment in accordance with the schedule prepared by the fund after an employer has withdrawn, or (2) filing an action for the total amount that is owing in accordance with the schedule. A fund has only one claim against an employer. It must decide whether to file an action for the missed payment or the total withdrawal liability. Navco, 3 F.3d at 172. The fund is required to file its action for payment of an employer’s withdrawal liability within six years of the.date when the cause of action arose, i.e., the date of the first missed payment. Id. This statutory requirement avoids the problem of “improperly plac[ing] the running of the limitations period in the control of the plaintiff.” Board of Trustees of the Constr. Laborers Pension Trust v. Thibodo, 34 F.3d 914 (9th Cir.1994).

In Thibodo, the defendant, a construction company, made payments to a pension fund until June 15, 1983. Id. at 916. In early 1984, the pension fund determined that the company had withdrawn from the fund. Id. The fund sent the company an assessment along with a payment schedule. Id. However, the company believed that the fund had erroneously determined that it had withdrawn, and the fund ultimately agreed. Id.

By the spring of 1985, the company had rehired numerous construction workers. The pension fund subsequently reinstated the company’s withdrawal liability assessment. Id. The company did not make any pension fund payments. Id. In April 1986, the fund sent the company a written notification indicating that the company had sixty days to begin making payments. Id. The company never made any payments in response to the fund’s notification. Id. On June 20, 1989, the fund filed an action for withdrawal liability payments. Id.

The district court stayed the proceedings while the parties submitted the matter to an arbitrator. Id. The arbitrator determined that the company had withdrawn from the pension plan on June 15, 1983 and that Thi-bodo, the company’s sole shareholder, was personally hable for the company’s withdrawal liability. Id. Thibodo argued before the district court that the fund had filed its action more than six years after the cause of action accrued and was therefore barred by the statute of limitations. Id. The district court agreed with Thibodo and dismissed the fund’s action. Id.

The Ninth Circuit reversed the judgment of the district court. Id. at 918. The court *867held that the statute of limitations under section 1451(f)(1) begins to accrue “from the date on which the conditions for complete withdrawal specified in § 1383(b)(2) have been met.” Id. at 917. The Ninth Circuit recognized that its holding differed from that of the D.C. Circuit in Sandoz, which held that the statute of limitations begins to accrue when the employer fails to make a scheduled payment after receiving a demand from the fund. Id. The Ninth Circuit’s decision in Thibodo, however, was concerned with discrete statutory language used by Congress with reference to withdrawals involving the construction industry. Id. Its conclusion that a pension fund cannot manipulate the date when a claim begins to accrue under the MPPAA, however, is consistent with the holding in Navco on this issue.

III.

In this matter, the Fund’s cause of action for the balance of the withdrawal liability arose on October 1,1984, when Kahle missed a payment after receiving a payment schedule and a corresponding demand. See Navco, 3 F.3d at 172 (cause of action begins to accrue when a scheduled payment is missed); Sandoz, 871 F.2d at 1123 (“[T]he failure to pay gives rise to a cause of action.”). The Fund had six years from October 1, 1984 to exercise its option to file an action for the missed payment or the total unpaid balance of the employer’s withdrawal liability. 29 U.S.C. § 1451(f)(1).

At oral argument, the Fund argued that it was authorized under § 1451(f)(1) to file its action six years after the employer had failed to make the penultimate payment due on October 1, 1993. The final payment in this matter was due on January 1, 1994. The Fund’s interpretation of section 1451(f)(1) would permit it to wait until the year 2000, approximately sixteen years after the first payment was missed, to file its action for the unpaid balance. This result would award a pension fund additional time to file its action merely because it was dilatory in pursuing its claim. See Navco, 3 F.3d at 172 (extending a six year statute of limitations under Multiem-ployer Pension Plan Amendments Act of 1980 to twenty-six years “is a job best left to magicians”).

Such a result is clearly inconsistent with the public policy served by statutes of limitations. These statutes are designed “to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost,” to put potential defendants “on notice of adverse claims,” and “to prevent plaintiffs from sleeping on their rights.” Sperling v. Hoffman-La Roche, Inc., 24 F.3d 463, 471-72 (3d Cir.1994) (internal quotation omitted); see also Navco, 3 F.3d at 172 (“Statutes of limitations serve vital social interests — the usual ones of preventing stale claims that may be hard to prove, and protecting the interest of potential defendants in knowing their liabilities, and in the MPPAA the unusual one of protecting the beneficiaries of the fund.”). Additionally, permitting a fund to choose the triggering date which begins the running of the statute of limitations essentially makes the fund’s dilatory decision unreviewable by a court.

The majority has failed to point to any language in the MPPAA that supports its conclusion that Congress intended to place the running of the statute of limitations in the hands of the pension fund. I agree with the majority that the MPPAA gives a pension fund the option to file an action for a missed payment or an action for the unpaid balance of the employer’s liability after a default. The fact that Congress gave the pension fund a choice as to the remedy it may follow if a payment is missed, however, does not affect the six-year statute of limitations.

The harm that can flow from delay in filing an action is illustrated by the record in this case. The majority states that “[tjhere is no evidence of further communications, negotiations, or arbitration proceedings after December 1984.” Majority opinion at 856. The explanation for the absence of a record of the actions taken by the parties following the Fund’s December 21,1984 notice of default is found in the Appellant’s Opening Brief. Counsel explains throughout his brief that correspondence between the parties concern*868ing the employer’s withdrawal liability was “not available from the Pension Fund’s or Fund counsel’s files,” Appellant’s Opening Br. at 6 n. 2, that “[t]here is no information in the Pension Fund’s files to indicate course of events before default notice,” id. at 10 n. 3, and further the “Fund’s counsel did not receive the September 13, 1984 letter.” Id. at 5.

The Fund’s dilatory tactics in this matter have affected its own ability to prepare for trial. Moreover, Kahle will now be forced to trial more than ten years after the facts that the Fund alleges make it liable. Kahle’s corporate records, counsel’s files, and witnesses’ memories are subject to the same loss already experienced by the Fund.

IV.

This court has explained that the goals of the MPPAA are “to protect the interests of participants and beneficiaries in financially distressed multiemployer plans and ... to ensure benefit security to plan participants.” IUE AFL-CIO Pension Fund v. Barker & Williamson, 788 F.2d 118, 127 (3rd Cir.1986) (internal quotation omitted). The majority’s interpretation of section 1399(c)(5) seriously frustrates Congressional intent.

Congress’ concern that a pension fund act promptly in protecting the integrity of the pension plan is reflected in the requirement that the demand for payment of the employer’s liability after a withdrawal be made “as soon as practicable.” 29 U.S.C. § 1399(b)(1). The majority’s conclusion that a fund may delay filing an action for the total amount of the outstanding liability for up to twenty years is contrary to the expressed concern of Congress that a pension fund take timely action to resolve a dispute concerning an employer’s liability.

In construing section 1399(c)(5) to place the running of the statute of limitations in the hands of the pension plan, the majority would apparently approve of the loss of fourteen years of payments owed by the employee to the Fund. The majority’s construction of the MPPAA is clearly inconsistent with the congressional goal of safeguarding the financial integrity of the multiemployer plan. The Seventh Circuit’s interpretation of section 1399(c)(5) in Navco ensures that an employer who misses a payment must make up that payment within sixty days of the scheduled date, or be subject to an action for the total unpaid balance of its withdrawal liability. Had the Fund filed its action within six years of the first missed payment in this matter, Kahle would have been liable to pay over $270,000. Under the majority’s view, Kahle will escape payment of over $150,000. This will unfairly force the other participants to increase their contribution to protect the beneficiaries of the Fund. Traditional canons of construction require us to construe a statute to avoid a result that defeats congressional intent. Adoption of the reasoning in Navco would fully protect the interests of the beneficiaries of a pension plan.

V.

The notice requirement in section 1399(c)(5) is solely applicable to a cause of action for the total unpaid balance of an employer’s withdrawal liability. Thus, the Fund’s December 21,1984 threat to “seek all remedies available to it” could only refer to an action for the total unpaid balance. As conceded by the Fund, the MPPAA does not require service of a notice of default where the pension plan elects to bring an action for a misconduct. Appellants Opening Br. at 21.

The Fund attempts to escape the consequences of its failure to file this action within the six-year limitation period by arguing that the notice of default it sent to Kahle dated December 21, 1984 was “defective,” and therefore did not trigger the running of the statute of limitations. Appellant’s Opening Br. at 29. This argument is frivolous. To accelerate payment of the outstanding withdrawal liability pursuant to section 1399(c)(5), the plan sponsor must give the employer written notification of its failure to make any payment when due. The Fund’s December 21,1984 letter informed Kahle’s counsel “that your client is now in default in its payments.” The letter further advised Kahle that unless the default was cured, the Fund would “seek all remedies available to it.” The December 21, 1984 letter substantially complied with the notice of default requirements of section *8691399(c)(5). The running of the statute of limitations for the total unpaid balance was therefore triggered by the December 21, 1984 notice of default.

VI.

The majority Aids support for its conclusion that the statute of limitations for the total unpaid balance begins to run anew from the date of each scheduled payment in the common law of contracts. The Seventh Circuit rejected a similar argument in Navco:

The schedule under § 1399(c) ... is not contractual; the employer did not assent to a longer period for payment and suit. We have not seen any case extending the contractual approach to the MPPAA, and like the district court we believe it would be imprudent to adopt a rule that relieves pressure on trustees of pension funds to act with dispatch. Six years is quite sufficient; the trustees may not award themselves more.

Navco, 3 F.3d 167, 168.

I would not borrow from the law of contracts to negate the intent of Congress that pension funds must act promptly to avoid compromising the financial integrity of the pension fund and requiring other participants to shoulder the responsibility of employers who withdraw. The majority’s reliance on the arbitrator’s decision in Ludington News Co. and Michigan UFCW/Drug Employers Pension Fund Workers Union and Drug and Mercantile Employee Joint Pension Fund, 9 Employee Benefits Cas. (BNA) 1913 (1988), to support its contractual theory is questionable. The majority states “[a]l-though we recognize that Ludington is without precedential effect, it was cited as relevant by another circuit. See Joyce v. Clyde Sandoz Masonry, 871 F.2d 1119, 1124 (D.C.Cir.), cert. denied, 493 U.S. 918 [110 S.Ct. 280, 107 L.Ed.2d 260] (1989).” Majority opinion at 858. A careful reading of San-doz, however, reveals that Ludington was not “cited as relevant” for the proposition that a new cause of action for the unpaid balance accrues when each scheduled payment is due. That issue was not discussed by the court in Sandoz. Instead, Ludington was cited because it, too, concluded that no cause of action arises until the employer refuses to meet the demand of the fund. Sandoz, 871 F.2d at 1124. As noted above, the analogy to the law of contracts adopted by the majority in this matter was expressly rejected by the Seventh Circuit. Navco, 3 F.3d at 172-73.

CONCLUSION

Contrary to the majority’s resolution of the issue before this court, the MPPAA does not permit a pension fund to file a cause of action for the unpaid balance of an employer’s withdrawal liability six years after the last payment is due, even if no payments have been made for up to twenty years. Regrettably, the majority has subjected the running of the statute of limitations to the whim of the Fund. I find nothing in the law of the Third Circuit or any other jurisdiction that supports this extraordinary result. Accordingly, I cannot join in the majority’s opinion. I would affirm the well reasoned judgment of the district court.

. The relevant portion of the demand letter is as follows:

We have determined that your company has effected a withdrawal from the Fund. In accordance with the Multi-Employer Pension Plan Amendments Act of 1980 (the Act), we hereby make request for payment of withdrawal liability in accordance with the schedule described below.
According to our records, complete withdrawal occurred on June 22, 1981. Based on the method chosen by the Trustees in accordance with the Act, we have computed your company's liability to the Fund to be $271,746.
You are required to pay this amount in quarterly payments, each in the amount of $9,467 (except for the last payment which will be in the amount of $6,459).
Payments must begin no later than 60 days after receipt of this notice, notwithstanding any request for review or appeal. Accordingly, your company's first quarterly installment is due on July 1, 1984.
Failure to begin payment of withdrawal liability as required may constitute a default, which will entitle the Fund to require immediate payment of the full amount of the withdrawal liability owed.

. The Fund’s letter dated December 21, 1984, states:

Since our ... letter to you of August 2, 1984, the Trustees of the District No. 15 Machinists' Pension Fund have met and considered your letter of July 2, 1984.

Please be advised that at this time and in part as a result of your failure to respond to our earlier letter, the Trustees can see no reason for changing their determination that your client has withdrawn from the Plan. Thus, your client continues to be obligated to pay its withdrawal liability.'
Please be further advised that your client is now in default in its payments. Unless it cures this default by the 1st of January 1985, our client will have no alternative but to declare your client "in default” and seek all remedies available to it [sic] client under appropriate federal legislation.

. The following colloquy occurred between the district court and the Fund's counsel, Ms. Roberto:

THE COURT: What happened in 1985, '86,-'87? Zero.
MS. ROBERTO: Well, the Fund was waiting for — to see what was going to happen with the arbitration with the labor dispute.
THE COURT: Waiting for what? In '85, in '86, in '87? Have you got any papers you want to show me that arbitration was commencing, people were looking for arbitrators and reviewing? Nothing happened. I think candor on the part of your client is, Nothing happened in '85, '86, '87, so we sent the default in '88.
MS. ROBERTO: I don't dispute that. I have nothing to show you otherwise.