author: CALDWELL, District Judge.

text:
    Ronald C. DENNIS and Donna L. Dennis, his wife, Plaintiffs, v. BOARD OF TRUSTEES OF the FOOD EMPLOYERS LABOR RELATIONS ASSN. AND UNITED FOOD AND COMMERCIAL WORKERS UNION PENSION FUND, Defendant.
    Civ. A. No. 85-0198.
    United States District Court, M.D. Pennsylvania.
    Oct. 25, 1985.

      W. William Anderson, Menges, Dorion & Snyder, York, Pa., for plaintiffs.
    Joseph Semo, Fredrick M. Marx, Seif-man, Semo, Slevin & Marcus P.C., Washington, D.C., William J. Flannery, Morgan, Lewis & Bockius, Harrisburg, Pa., for defendant.
   MEMORANDUM

CALDWELL, District Judge.

I. Introduction.

The parties have filed cross motions for summary judgment. The plaintiffs, Ronald C. Dennis (Dennis) and his wife, Donna L. Dennis, allege in their complaint that the defendant Board of Trustees unlawfully suspended Dennis’s pension benefits in violation of the pension plan. Defendant asserts that the suspension was in compliance with the agreement and a proper exercise of its discretion.

II. Background.

Plaintiff Dennis was an employee of Acme in York, Pennsylvania, for thirty-one and a half years. (Complaint, 11 6). When Acme withdrew from the supermarket business in that area, he was forced out of his employment in June of 1982. (Complaint, 117; Counterclaim, 113). He subsequently found employment with Pantry Fresh, a food store in Camp Hill, Pennsylvania, in January of 1983. Because he was ostensibly eligible for a pension following thirty years of Acme employment, he also decided to apply for pension benefits in July of 1983. Prior to the termination of his employment, Dennis had received a copy of the Summary Plan Description. It contained the following suspension of benefits rule which plaintiffs deny being aware of at the time Dennis applied for his pension:

Employment After Retirement
After you retire under the Plan, you are free to find work in another industry without jeopardizing your pension, with one exception. If your pension is a disability pension and you lose your eligibility for Social Security disability before age 65, your pension will stop.
If you obtain work in the same industry, the same trade or craft and geographic area covered by the Plan, your pension from this Plan may be suspended during the period of that employment.
If your are in doubt about whether taking a certain job after a retirement will cause your pension to be suspended, you may ask the Board of Trustees for a ruling. Write a letter to the Board and give the name and address of the company you intend to work for and describe the nature of your duties.

(Exhibit H to defendant’s motion for summary judgment) (emphasis added).

Dennis began receiving pension benefits on August 1, 1983. (Affidavit of Hugh Brookhart, 11 5). He informed the Board of his Pantry Fresh employment in response to a routine, annual questionnaire sent to pensioners to determine if they were working and, hence, possibly no longer eligible for a pension. The questionnaire was more specific than the summary of the plan, defining employment in the retail food industry as employment “with a Retail Food Store of a structure size similar to any of the employers in the Plan.”

After receiving Dennis’s response, the Board investigated Pantry Fresh to determine what type of food store it was and if it qualified as a store in the same industry as Acme. The Board determined that it was, based upon gross sales of approximately $80,000.00 per week, and an area of 20,000 square feet. The Board concluded that Dennis’s pension benefits should be suspended and so notified him by letter, dated August 1, 1984. Plaintiffs’ counsel sought reconsideration of that decision by a letter, dated August 9,1984, in which counsel argued that the Board should reverse its decision because: (1) Dennis needs to work to supplement his meager pension benefits; (2) Pantry Fresh, “a small, independent grocery store,” is not in the same industry as Acme; and (8) the purpose of the rule suspending benefits is not served when Dennis is not working for a competitor of Acme, which is no longer in business in the area. After considering counsel’s arguments, the Board reaffirmed its prior decision. (Attachment 7 to defendant’s motion for summary judgment.) Plaintiffs filed suit in the Court of Common Pleas of York County, Pennsylvania, seeking reinstatement of the pension, and defendant removed the case to this court because it was a claim arising under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq.

III. Discussion.

We must evaluate the motions under the following, well established standard:

Summary judgment under Federal Rule of Civil Procedure 56 is appropriate only where the moving party establishes that no genuine issue exists as to any of the material facts in the case, and that he is entitled to judgment as a matter of law. See, e.g., Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir.1981). Courts should resolve any doubts as to the existence of issues of material fact against the moving party, and view all inferences in the light most favorable to the nonmoving party. [citation omitted].

Fragale & Sons Beverage Co. v. Dill, 760 F.2d 469, 472 (3d Cir.1985) (brackets added).

The Board administers the plan by which the Food Employers Labor Relations Association and the United Food and Commercial Workers Pension Fund (Fund) is distributed. The Fund is a multi-employer and employee benefit plan as defined in 29 U.S.C. § 1002(3). (Defendant’s Statement of Undisputed Facts 111). It is maintained by food industry employers and the United Food and Commercial Workers Union Locals 27, 400 and 1357 for the benefit of covered bargaining unit employees. Contributing employers are located in Delaware, Maryland (Affidavit of H. Eugene O’Brien, Attachment 9 to defendant’s motion), and, of course, Pennsylvania.

The Board’s administration of the plan is governed by ERISA and its decision as to pension benefits cannot be reversed by a reviewing court unless the Board acted arbitrarily or capriciously. See Edwards v. Wilkes-Barre Publishing Co. Pension Trust, 757 F.2d 52 (3d Cir.1985); Struble v. New Jersey Brewery Employees’ Welfare Trust Fund, 732 F.2d 325 (3d Cir.1984). We cannot conclude that the Board has done so under the circumstances of this case.

The suspension of benefits provision applies when a pensioner obtains work “in the same industry, the same trade or craft and geographic area covered by the Plan.” When the Board received Dennis’s response to its inquiry, it investigated the Camp Hill Pantry Fresh store to determine if it was engaged in the same business as employers contributing to the plan. The Board discovered that it was a retail food store with gross sales of approximately $80,000 per week and 20,000 square feet of space. The Board therefore suspended Dennis’s benefits because he came within the suspension of benefits provision.

Despite the Board’s apparent compliance with the plan provision, the plaintiffs contend that suspension of Dennis’s benefits was arbitrary and capricious mainly because: (1) although Dennis had received a copy of the plan summary, he was not aware of the suspension of benefits rule until he received the February, 1984 questionnaire; (2) the rule’s purpose is to prohibit competition with the former employer and it is not served in this instance when Acme has withdrawn from competition in the area of Dennis’s employment; (3) the rule cannot equitably be applied to an employee of over thirty years standing who was forced out of work by Acme’s decision not to compete in the York area and who could find no other employment after a seven month search; (4) other factors besides those set forth in section 203(a)(3)(B), 29 U.S.C. § 1053(a)(3)(B), may be taken into account in determining whether a suspension of benefits constitutes an illegal forfeiture; and (5) in notifying Dennis of the suspension of benefits the Board failed to comply with the procedure set forth in 29 C.F.R. § 2530.203-3(b)(4).

In connection with plaintiffs’ first argument, they have failed to assert how their lack of actual knowledge of the rule requires restoration of pension benefits. They admit that Dennis received a copy of the plan summary before his employment with Acme was terminated and have not pointed to any law or regulation requiring notice to him of the rule at the time of his decision to receive pension benefits. Under these circumstances, plaintiffs cannot rely upon ignorance of contractual provisions because of their failure to read them.

We disagree with plaintiffs’ contention that the rule was intended to prohibit competition with, the former employer. The language of the rule covers the geographic area of the plan, not the geographic area of the employee’s former place of employment. See also 29 C.F.R. § 2530.-203 — 3(c)(2)(iii) which provides, in pertinent part, that “the ‘geographic area covered by the plan’ consists of any state ... in which contributions were made or were required to be made by or on behalf of an employer-” Since the plan accordingly includes at least Pennsylvania, Maryland and Delaware, we must reject plaintiffs’ competition argument. We believe the language of the rule makes sense in light of defendant’s contention that the rule was intended to protect the fiscal integrity of the fund. It can achieve this by preventing eligible employees from accepting a pension and going to work in the same occupation in the area covered by the plan.

Plaintiffs’ third argument is that it would be inequitable to apply the suspension of benefit rules to him since he was an employee of thirty years standing, forced out of his former position, who took the only job he could find. In their view, this would constitute an arbitrary and capricious exercise of the Board’s discretion. Once again, however, the plan language fails to support plaintiffs. No where does the plan allow benefits under the circumstances described by them.

Additionally, ERISA and its regulations permit the suspension of benefits which took place here. Dennis concedes that he is not at the normal retirement age under the plan. 29 C.F.R. § 2530.203-3, captioned “Suspension of pension benefits upon employment,” provides, in relevant part, as follows:

A plan may provide for the suspension of pension benefits which commence prior to the attainment of normal retirement age, or for the suspension of that portion of pension benefits which exceeds the normal retirement benefit, or both, for any reemployment and without regard to the provisions of Section 203(a)(3)(B) and this regulation to the extent (but only to the extent) that suspension of such benefits does not affect a retiree’s entitlement to normal retirement benefits payable after attainment of normal retirement age, or the actuarial equivalent thereof.

Section 203(a)(3)(B), in connection with mul-tiemployer plans, permits suspension of benefits if the employee is reemployed in the same industry, in the same trade or craft and the same geographic area covered by the plan. Hence, the plan itself is more liberal than the statute and regulations since the Board could have legally prohibited Dennis, as a person who has not yet attained normal retirement age, from receiving pension benefits upon any reemployment. See Chambless v. Masters, Mates & Pilots Pension Plan, 571 F.Supp. 1430 (S.D.N.Y.1983) and cases cited therein. Instead, the plan permits him to work, as long as his reemployment is not in the same industry, in the same trade or craft and in the same geographic area covered by the plan.

Plaintiffs argue that the notice of suspension of benefits failed to comply with the procedural requirements of 29 C.F.R. § 2530.203-3(b)(4). Defendant argues that that section is applicable only to retirees who have attained normal retirement age. We reject defendant’s contention. We have already quoted above from subsection (a) of this section which is a general provision dealing with suspension of benefits before and after normal retirement age. Subsection (b)(4), captioned, “Notification” goes on to provide as follows:

No payment shall be withheld by a plan pursuant to this section unless the plan notifies the employee by personal delivery or first class mail during the first calendar month or payroll period in which the plan withholds payments that his benefits are suspended. Such notification shall contain a description of the specific reasons why benefit payments are being suspended, a general description of the plan provisions relating to the suspension of payments, a copy of such provisions, and a statement to the effect that the applicable Department of Labor regulations may be found in § 2530.-203-3 of the Code of Federal Regulations. In addition, the suspension notification shall inform the employee of the plan’s procedure for affording a review of the suspension of benefits.

The reference by subsection (b)(4) to “no payment shall be withheld by a plan” obviously includes a suspension of pension benefits before normal retirement age covered in subsection (a). We conclude that subsection (b)(4) applies to the suspension of benefits in the case at bar.

Having so concluded, we disagree with plaintiffs that the appropriate remedy is reinstatement of benefits. Plaintiffs cite New York State Teamsters Conference Pension and Retirement Fund v. Hoh, 561 F.Supp. 679 (N.D.N.Y.1982) in support of that request, but Hoh is distinguishable. In Hoh, the court did find pursuant to section 2530.203-3(b)(4) that the notice of suspension was procedurally deficient, and that benefits should be reinstated. It also found, however, on the merits, that the plan administrators had wrongfully suspended benefits in the first place. The pensioner, Hoh, was not employed in circumstances which would have warranted suspension of his benefits. Additionally, Hoh was never granted, as required by section 503 of ERISA, 29 U.S.C. § 1133, a reasonable opportunity for a full and fair review of the decision denying benefits.

In the instant case, the letter, dated August 1, 1984, notifying Dennis of the suspension of benefits did not, as plaintiffs point out, contain a general description of the plan provisions relating to the suspension of benefit payments, a copy of such provisions, nor a statement to the effect that applicable Department of Labor Regulations could be found in 29 C.F.R. § 2530, and no mention of the plan’s procedure for affording review of its decision. Nevertheless, plaintiffs’ counsel by letter of August 9, 1984, sought reconsideration of the Board’s decision. The letter clearly indicates plaintiffs’ knowledge of why benefits were denied and sets forth fully plaintiffs’ arguments for reinstatement. This letter was considered by the Board which reaffirmed its prior decision. Under these circumstances, plaintiffs’ procedural objection is technical and does not warrant reinstatement of benefits.

We note plaintiffs’ argument that there remains a disputed factual issue in this case because they claim the Pantry Fresh store grosses only $60,000 per week and is only 12,500 square feet. (Plaintiff’s answer to defendant’s Interrogatory 5). Defendant has shown, however, that the stores of some contributing employers are equivalent in gross sale and square footage to the Pantry Fresh store, (Affidavits of Carvel Mays, Jr. and H. Eugene O’Brien, attachments 8 and 9 to defendant’s motion), so while there may be a genuine issue of fact, there is no issue of material fact.

It is unclear whether defendant has sought summary judgment on its counterclaim since it has only sought summary judgment generally. Plaintiffs have specifically requested judgment in their favor on the counterclaim. We will grant plaintiffs’ request because the relief sought by defendant is contrary to the regulations.

Defendant’s counterclaim demands reimbursement for all amounts paid from August 1, 1983 through August 31, 1984. Under 29 C.F.R. § 2530.203-3(b)(3), however, defendant cannot seek an immediate lump sum award for improperly paid retirement benefits. It can only offset against future retirement benefits each month an amount no greater than 25% of the future monthly benefit. The regulation provides as follows:

(3) Offset rules. A plan which provides for the permanent withholding of benefits may deduct from benefit payments to be made by the plan payments previously made by the plan during those calendar months or pay periods in which the employee was employed in section 203(a)(3)(B) service, Provided, That such deduction or offset does not exceed in any one month 25 percent of that month’s total benefit payment which would have been due but for the offset (excluding the initial payment described in paragraph (b)(2) of this section, which may be subject to offset without limitation).

Additionally, we note that defendant has failed to comply with subsection (b)(4). Its notification of suspension of benefits, dated August 1, 1984, did not include a statement of defendant’s intention to recoup benefits already paid. (Exhibit F to defendant’s motion). Subsection (b)(4) provides, in pertinent part, as follows:

[I]f a plan intends to offset any suspendi-ble amounts actually paid during the periods of employment in section 203(a)(3)(B) service, the notification shall identify specifically the periods of employment, the suspendible amounts which are subject to offset, and the manner in which the plan intends to offset such suspendible amounts.

29 C.F.R. § 2530.203-3(b)(4).

We will issue an appropriate order.

ORDER AND JUDGMENT

AND NOW, this 25th day of October, 1985, it is ordered that:

1. Plaintiffs’ motion for summary judgment on defendant’s counterclaim is hereby granted and judgment on the counterclaim is hereby entered for plaintiffs. In all other respects, plaintiffs’ motion is denied.
2. Defendant’s motion for summary judgment on plaintiffs’ complaint against it shall be and is hereby granted and judgment is hereby entered in favor of defendant on that complaint. In all other respects defendant’s motion is denied.
3. Defendant’s motion for the continuance of the pre-trial conference and trial is hereby dismissed as moot.
4. The Clerk of Court shall close this file.

      . Defendants’ brief also asserts that the geographic area of the plan includes Virginia and the District of Columbia but this is not set forth of record.


source: Caselaw Access Project

author: LUONGO, Chief Judge.

license: Public Domain

text:
    Louis and Jacqueline H. TUCKER h/w and Christina Tucker, by her parents and guardians Louis and Jacqueline Tucker, v. WHITAKER TRAVEL, LTD., Atkinson & Mullin Travel, Inc., R.M. Tours a/k/a Richard Moss Tours, Ltd., Happy Trails Stables, Commonwealth of the Bahamas, Ministry of Tourism. Louis and Jacqueline TUCKER h/w and Christina Tucker, by her parents and guardians Louis and Jacqueline Tucker, v. The COMMONWEALTH OF the BAHAMAS and Ministry of Tourism.
    Civ. A. Nos. 84-5123, 85-1685.
    United States District Court, E.D. Pennsylvania.
    Oct. 25, 1985.

      John J. O’Brien, III, Philadelphia, Pa., for plaintiffs.
    Augustus R. Sigismondi, Philadelphia, Pa., for Whitaker Travel, Ltd.
    John W. Walter, Philadelphia, Pa., for Atkinson & Mullin Travel, Inc.
    William R. Herman, Philadelphia, Pa., William A. Bradford, Jr., Hogan & Hart-son, Washington, D.C., for Commonwealth of the Bahamas and Ministry of Tourism.
   OPINION

LUONGO, Chief Judge.

Plaintiffs brought these related actions to recover for personal injuries which Jacqueline and Christina Tucker sustained while horseback riding in the Bahamas. Defendants are the Commonwealth of the Bahamas (the Bahamas), the Ministry of Tourism, several travel agencies and Happy Trails Stables. The complaints were filed in the Court of Common Pleas of Philadelphia County and were removed to this court by the Bahamas and the Ministry of Tourism (foreign government defendants, hereinafter government defendants). Plaintiffs have moved to remand Civil Action No. 84-5123 to state court or, in the alternative, to sever and remand the claims against all but the government defendants. The government defendants have moved to dismiss both cases for insufficient service of process, lack-of personal and subject matter jurisdiction, and failure to state a cause of action. I will consider the motions filed in these two cases together. For the reasons set forth below, I will deny plaintiffs’ motion to remand No. 84-5123 to state court and will grant the government defendants’ motions to dismiss on the ground of foreign sovereign immunity. Because dismissal of the government defendants removes the basis for federal jurisdiction, the remaining defendants will be remanded to state court. Plaintiffs’ motion to sever and remand the claims against these defendants will therefore be dismissed as moot.

I. Plaintiffs’ Motion to Remand

Plaintiffs assert as the first ground for their motion to remand that under the Foreign Sovereign Immunities Act (FSIA) the state courts may hear actions against a foreign government. See 28 U.S.C. §§ 1602, 1605. A companion case is currently pending in the Philadelphia Court of Common Pleas. The Hotel Corporation of the Bahamas, a named defendant in that case, did not act to remove the case to federal court. Plaintiffs argue that the Hotel Corporation is an agent of the Bahamas and that its failure to remove constitutes a waiver binding upon the government defendants in this case. Plaintiffs argue further that remand would permit their cases to be tried together, thus ensuring uniformity of result and efficient use of judicial resources, and, finally, that remand is required because the government defendants did not obtain the consent of all defendants to the removal petition.

The government defendants argue that as “foreign states” under the FSIA they have an absolute right of removal, that they do not need the consent of co-defendants, and that they cannot be deprived of this right on grounds of judicial efficiency. The government defendants deny that the Hotel Corporation’s failure to remove a case in which they were not parties bars them from removing these cases.

The Bahamas and the Ministry of Tourism are “foreign states” under 28 U.S.C. § 1603. Thus, they have the right under 28 U.S.C. § 1441(d) to remove these actions to federal court. I agree with defendants’ contention that co-defendants need not join in the removal petition. The Court of Appeals for the Fifth Circuit has noted that “§ 1441(d) by its terms requires no defendant other than the ‘foreign state' to assent to or join the removal petition.” Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1375 (5th Cir.1980). The legislative history of the FSIA establishes that the consent of co-defendants is not necessary: “[n]ew subsection (d) of section 1441 permits the removal of any such action at the discretion of the foreign state, even if there are multiple defendants and some of these defendants desire not to remove the action or are citizens of the State in which the action has been brought.” H.R.Rep. No. 1487, 94th Cong., 2d Sess. 32, reprinted in 1976 U.S.Code Cong. & Ad.News 6604, 6631. See also 1A J. Moore, Moore’s Federal Practice 1Í 0.168[3. — 2—2] at 559 (2d ed. 1985).

In addition, when a “foreign state” defendant removes under § 1441(d), “the entire action against all defendants accompanies it to federal court.” Arango, 621 F.2d at 1375. See also Mori v. Port Authority, 100 F.R.D. 810, 812 (S.D.N.Y.1984); 1A Moore’s Federal Practice ¶ 0.163-1 at 369. These cases were therefore properly removed to federal court on the petition of the government defendants.

I also reject plaintiffs’ contention that the government defendants waived their right to remove these actions. Plaintiffs have cited, and my research has disclosed, no authority for the proposition that a defendant’s failure to remove an action is binding upon different defendants in a different, though related, action. The cases upon which plaintiffs rely are inapposite.

The defendant in Laughlin v. Dow Chemical Co., 563 F.Supp. 271 (S.D.Tex.1983), an American subsidiary of a French-nationalized corporation, had no independent right of removal. The court held that the parent corporation’s removal of a related but separate action did not confer the right to remove upon its subsidiary. Id. at 272-73. The holding in Laughlin has no relevance to the instant cases, in which the government defendants are “foreign states” with an independent right to remove under § 1441(d).

Plaintiffs also cite Blue Ox Corp. v. Murphy Oil Corp., 524 F.Supp. 1019 (D.Mont.1981), in which the court held that a defendant’s failure to remove a lawsuit constituted a waiver of his right to remove a later suit based on the same occurrence. The court reasoned that the two complaints “name[d] the same parties and allege[d] the same wrong.” Id. at 1020. The state action had been pending for ten years, and the court was reluctant “[t]o allow the defendant to ‘test the water’ in state court and now come before this court with essentially the same action.” Id. at 1022.

These concerns are not implicated here, where the defendants seeking to remove the second action were not parties to the first. The Hotel Corporation’s failure to remove a separate action should not bar defendants in these actions from exercising their right of removal. The Hotel Corporation asserted in the state court action that it is a corporate entity established by the Bahamian legislature, entitled to invoke the defense of sovereign immunity. This is not inconsistent with the government defendants’ allegation that the Hotel Corporation remains an entity distinct from the Bahamian government and other agencies such as the Ministry of Tourism. The Supreme Court has held that “government instru-mentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such.” First National City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 626-27, 103 S.Ct. 2591, 2599-2600, 77 L.Ed.2d 46 (1983). Plaintiffs have set forth no grounds upon which I can conclude that the Hotel Corporation’s separate status should be disregarded.

Finally, considerations of judicial efficiency do not provide a basis for remanding this case to state court. The right granted to foreign states by § 1441(d) is a significant one. According to the House Judiciary Committee, “[i]n view of the potential sensitivity of actions against foreign states and the importance of developing a uniform body of law in this area, it is important to give foreign states clear authority to remove to a Federal forum actions brought against them in the State courts.” H.R.Rep. No. 1487 at 32,- 1976 U.S.Code Cong. & Ad.News at 6631. The government defendants have exercised their right to remove, and I cannot deprive them of a federal forum simply because remand to state court may promote judicial efficiency. See, e.g., Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976) (district court may not remand a case properly removed and within its jurisdiction for discretionary reasons not authorized by 28 U.S.C. § 1447(c)). Plaintiffs’ motion to remand No. 84-5123 to state court will be denied.

II. Defendants’ Motions to Dismiss

The government defendants have moved to dismiss on two grounds. They claim first that service of process was insufficient under the FSIA, and second that they are entitled to sovereign immunity and this court therefore lacks personal and subject matter jurisdiction. Because I conclude that the complaints against the government defendants must be dismissed on the basis of their sovereign immunity, I need not, and do not, decide whether the government defendants were properly served.

Under the FSIA, a foreign state is immune from the jurisdiction of federal and state courts unless one of several specified exceptions applies. 28 U.S.C. § 1604. Section 1605(a)(2) creates exceptions for actions

based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.

The “commercial exception” of § 1605(a)(2) applies if: (1) plaintiffs’ suit is “based upon a commercial activity” conducted by the foreign state; and (2) this commercial activity has a sufficient connection with the United States. See, e.g., Callejo v. Ban- comer, S.A., 764 F.2d 1101, 1107 (5th Cir.1985); Sugarman v. Aeromexico, Inc., 626 F.2d 270 (3d Cir.1980).

Plaintiffs make essentially two claims. First, they contend that the government “has preempted and regulates the entire field of tourism.” Complaint at ¶ 82. Under this theory, plaintiffs seek to hold the government defendants liable for failure to regulate horseback riding, failure to supervise or take action against the parties allegedly responsible for plaintiffs’ accident, and refusal to assist them in their investigation of the accident.

The government defendants contend they are entitled to immunity for such acts. I agree. Plaintiffs challenge the Bahamian government’s decisions whether and how to regulate an industry, police the activities of its citizens, and investigate or assist in the investigation of accidents within its borders. Such decisions are peculiarly governmental and may not be subjected to scrutiny in the United States courts. See generally International Association of Machinists v. OPEC, 477 F.Supp. 553 (C.D.Cal.1979), aff'd, 649 F.2d 1354 (9th Cir.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1036, 71 L.Ed.2d 319 (1982); H.R.Rep. No. 1487 at 14, 1976 U.S.Code Cong. & Ad.News at 6613 (foreign states are immune for acts which are “sovereign or governmental in nature”).

The second claim is based upon the government defendants’ advertising and promotion of tourism. The parties have stipulated that defendants engage in extensive advertising to promote tourism and sports activities in the Bahamas.

Advertising and promotion of an industry are activities in which a private party could engage and which are “customarily carried on for profit.” H.R.Rep. No. 1487 at 16, 1976 U.S.Code’ Cong. & Ad. News at 6615. They are thus commercial activities within the meaning of § 1605(a)(2). Id. See also Wolf v. Banco Nacional de Mexico, S.A., 739 F.2d 1458 (9th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 784, 83 L.Ed.2d 778 (1985) (where plaintiff, a United States resident, purchased certificates of deposit as a result of defendant’s advertising in the United States, the sale of CDs to plaintiff was a commercial activity carried on in the United States).

Defendants do not deny that they are engaged in commercial activities. Rather, they claim immunity on the ground that plaintiffs’ cause of action is not sufficiently connected to their advertising activities to fall within the commercial exception. Section 1605(a)(2) sets forth the connections on which jurisdiction can be premised.

The first clause of § 1605(a)(2) permits an action “based upon a commercial activity carried on in the United States.” Plaintiffs contend their claims are based upon defendants’ advertising activities in the United States. They have submitted a number of brochures and promotional materials published by the government defendants. Several brochures specifically mention horseback riding. One states: “What could be more refreshing than riding a grand horse through the tropical setting of miles of beachfront?” Others list the Happy Trails Stables and contain pictures of people riding horses. According to plaintiffs, defendants “lured” them to the Bahamas through misleading advertisements, Complaint at 111187, 88, and misrepresented horseback riding as a “ ‘relaxing,’ rather than harm-inducing activity.” Memorandum of Law accompanying Plaintiffs’ Response to the Defendants’ Motion to Dismiss at 15, No. 85-1685.

According to the Third Circuit Court of Appeals, the first clause of § 1605(a)(2) applies only if there is a nexus between the plaintiff’s grievance and the sovereign’s commercial activity in the United States. Sugarman v. Aeromexico, Inc., 626 F.2d 270 (3d Cir.1980). See also Velidor v. L/P/G Benghazi, 653 F.2d 812, 820 (3d Cir.1981), cert. dismissed, 455 U.S. 929, 102 5.Ct. 1297, 71 L.Ed.2d 474 (1982). Plaintiff in Sugarman sued Aeromexico, the national airline of Mexico, for injuries caused by a flight delay at the Acapulco airport. Aeromexico was a carrier of passengers between Mexico and the United States and conducted substantial airline operations in the United States. Plaintiff purchased Aeromexico tickets in New Jersey. The court found a sufficient relationship between plaintiff’s injury and Aeromexico’s commercial activities in the United States to permit the lawsuit. Id. at 272-73.

The nexus between the instant plaintiffs’ personal injury claims and the government defendants’ commercial activities falls far short of that in Sugarman. In Sugar-man, the foreign state defendant’s commercial activity was the conducting of airline operations in the United States. Plaintiff was injured because he was on one of defendant’s Mexico-United States flights. The injury thus arose directly from defendant’s performance of a commercial activity. See id.; Ohntrup v. Firearms Center Inc., 516 F.Supp. 1281 (E.D.Pa.1981) (permitting an action for injuries caused in the United States by firearm which “foreign state” defendant exported to the United States), aff'd mem., 760 F.2d 259 (3d Cir.1985).

In this case, defendants’ commercial activities consist of advertising to promote tourism and sports activities, including horseback riding, in the Bahamas. Plaintiffs claim their injuries occurred because of the negligence of the Happy Trails Stables and its employees. The relationship between plaintiffs’ injuries, in the Bahamas and defendants’ advertisements is simply too attenuated to satisfy the requirement that plaintiffs’ claims be “based upon” commercial activity in the United States. See Tigchon v. Island of Jamaica, 591 F.Supp. 765, 767-68 (W.D.Mich.1984); Harris v. VAO Intourist, Moscow, 481 F.Supp. 1056, 1061 (E.D.N.Y.1979); Tucker v. Whitaker Travel, Ltd., — Pa.Super. —, —- - —, 501 A.2d 643 (Pa.Super.Ct.1985). See also Dorrian v. Canadian Pacific Hotels, Ltd., No. 80-1740 (E.D.Pa. Dec. 2, 1980).

Plaintiffs also, however, advance negligent misrepresentation and breach of warranty theories. They claim the government defendants’ advertisements were misleading and induced them to visit the Bahamas and to go horseback riding.

These claims do appear' to be “based upon” defendants’ commercial activities in the United States. Plaintiffs’ complaint, however, fails to state a cause of action for negligent misrepresentation or breach of warranty. I cannot accept plaintiffs’ contention that an advertisement describing horseback riding as “refreshing” negligently misrepresents the activity as safe. Defendants’ advertisements are not “representations” concerning the activity of horseback riding. Rather, they contain statements of opinion and description, which cannot be the basis for a claim of misrepresentation. See, e.g., 4A Personal Injury: Actions-Defenses-Damages § 105[3][b][i] at Fraud-112, 116 (L. Frumer ed. 1982) (“broad and general commendatory or extravagant statements ... or puffing ... have generally been held to be too vague to be taken as anything other than reflections of the opinion of the speaker.”).

Moreover, plaintiffs have alleged nothing from which I can conclude that defendants had a duty to warn them of hazards associated with horseback riding. Plaintiffs have not claimed that defendants owned or controlled the Happy Trails Stables. See Lavine v. General Mills, 519 F.Supp. 332, 335 (N.D.Ga.1981). See also Morena v. South Hills Health System, 501 Pa. 634, 642, 462 A.2d 680, 684 (1983) (“Duty, in any given situation, is predicated on the relationship existing between the parties at the relevant time”); English v. Lehigh County Authority, 286 Pa.Super.Ct. 312, 336-38, 428 A.2d 1343, 1356-57 (1981). Defendants’ brochures do not purport to include safety information about the Happy Trails Stables or the activity of horseback riding. The listing of the stables and the brief, general descriptions of the activity found in those brochures do not give rise to a duty to warn. See id. at 337-38, 428 A.2d at 1357.

Plaintiffs’ breach of warranty theory falls on similar grounds. The statements in defendants’ advertisements cannot reasonably be interpreted to warrant plaintiffs’ safety if they were to go horseback riding in the Bahamas. See 4A Personal Injury § 105[3][b][i] at Fraud-114. In Lavine v. General Mills, 519 F.Supp. 332 (N.D.Ga.1981), the court held that a travel agency was not liable for breach of warranty when the plaintiff was injured on a tour arranged by the agency. The court reasoned: “Even if it were made, a general promise that the trip would be ‘safe and reliable’ does not constitute a guarantee that no harm would befall plaintiff.” Id. at 336. Certainly a description of horseback riding as “refreshing” does not constitute a warranty that it is safe.

I conclude that plaintiffs’ claims, to the extent that they are based on defendants’ commercial activities, do not state a cause of action. Clause one of § 1605(a)(2) thus provides no basis for abrogation of defendants’ sovereign immunity-

The second clause of § 1605(a)(2) is also inapplicable. Plaintiffs base their claims upon acts performed in the Bahamas and commercial activities performed in the United States, not upon acts “performed in the United States in connection with a commercial activity of the foreign state elsewhere.”

The third clause permits an action based upon “an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.” § 1605(a)(2). The requirements of this clause are not satisfied in the instant case. The acts upon which plaintiffs base their personal injury claims are not, in my view, connected to any commercial activities which the government defendants carried on either in the United States or elsewhere. Moreover, those acts did not cause a “direct effect” in the United States.

The direct effects of the various defendants’ tortious conduct are plaintiffs’ injuries, which occurred outside the United States. Whatever pain and pecuniary loss plaintiffs suffer in the United States are indirect consequences of the accident in the Bahamas. As Judge Hannum held in Dorrian v. Canadian Pacific Hotels, Ltd., No. 80-1740, slip op. at 9 (E.D.Pa. Dec. 2,1980), “causing injury to an American citizen abroad does not cause a direct effect in the United States despite the fact that the injury which was suffered abroad continues to cause suffering and economic loss to plaintiff in the United States.” See also, e.g., Australian Government Aircraft Factories v. Lynne, 743 F.2d 672, 674-75 (9th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1189, 84 L.Ed.2d 335 (1985); Sugarman v. Aeromexico, Inc., 626 F.2d 270, 272 (3d Cir.1980); Close v. American Airlines, Inc., 587 F.Supp. 1062, 1064 (S.D.N.Y.1984); Tucker, — Pa. at - - -, 501 A.2d 643. Since plaintiffs’ injuries do not constitute a direct effect in the United States, clause three of § 1605(a)(2) is inapplicable.

Under the FSIA, federal district courts have personal and subject matter jurisdiction only if the foreign state defendants are not entitled to immunity. 28 U.S.C. § 1330(a) & (b); Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 485 n. 5, 103 S.Ct. 1962, 1967 n. 5, 76 L.Ed.2d 81 (1983). None of the exceptions to sovereign immunity set forth in the FSIA apply in these cases. The government defendants are therefore immune and I lack personal and subject matter jurisdiction. The government defendants’ motions to dismiss will be granted.

Dismissal of the foreign government defendants eliminates the source of federal removal jurisdiction in these cases. I will therefore exercise my discretion to remand the remaining defendants to state court. See, e.g., United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1377 n. 6 (5th Cir.1980); Hinkle’s Jeep Sales v. Villa Enterprises, 90 F.R.D. 49, 52 (S.D.Fla.1981).

      . Title 28 U.S.C. § 1603 provides, in pertinent part:
      For purposes of this chapter—
      (a) A “foreign state,” except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b).
      (b) An "agency or instrumentality of a foreign state” means any entity—

        (1) which is a separate legal person, corporate or otherwise, and
      (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
      (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country.
      Plaintiffs do not dispute that the government defendants satisfy the requirements of this section.

      . Title 28 U.S.C. § 1441(d) provides, in pertinent part: "Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending.”

      . Under limited circumstances, a defendant’s failure to remove may become binding on other defendants. Courts have construed § 1441 to require that a removal petition be filed within thirty days after the first defendant is served. If additional defendants are named after the thirty-day period expires, they have no right to remove. See, e.g., Schmidt v. National Organization for Women, 562 F.Supp. 210, 212 (N.D.Fla.1983); Balestrieri v. Bell Asbestos Mines, Ltd., 544 F.Supp. 528, 529-30 (E.D.Pa.1982); Fugard v. Thierry, 265 F.Supp. 743, 745-47 (N.D.Ill.1967). The rationale for this rule is that the first defendant, having failed timely to remove, cannot join in the removal petition. "Since all defendants must join in a petition for removal, when the initial defendant waived her right to remove the other defendants fell subject to the same disability." Id. at 745. See also 1A Moore’s Federal Practice ¶ 0.168[3.-5-5] at 586-87. If, as in the present cases, the consent of all defendants is not needed there is no reason to apply this rule. Id. at 587 n. 10. The considerations underlying the rule are also not implicated when different defendants in a separate, though related, action seek to remove.

      . The government defendants bear the burden of establishing that they are entitled to immunity. See H.R.Rep. No. 1487 at 17, 1976 U.S.Code Cong. & Ad.News at 6616.

      . Plaintiffs’ memorandum also discusses § 1605(a)(5), which provides an exception for actions "in which money damages are sought against a foreign state for personal injury or death ... occurring in the United States and caused by the tortious act or omission of that foreign state....” Because plaintiffs' injuries did not occur in the United States, this exception is inapplicable.

      . Although these are state law claims, the parties have not discussed the issue of what law should apply. Plaintiffs apparently assume that the case is governed by general principles of United States law, as found in various cases'and ■ in provisions of the Restatements. The parties have not argued that Bahamian law applies, nor have they submitted information about the requirements of Bahamian law. I will therefore apply the law of Pennsylvania to these claims. See Fed.R.Civ.P. 44.1 ("A party who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice.”); 42 Pa.C.S.A. § 5327(a); Restatement (Second) of Conflict of Laws § 136, comment h, at 378-79 (1971). See also Cavic v. Grand Bahama Development Co., 701 F.2d 879, 882 (11th Cir.1983); Montgomery Ward & Co. v. Pacific Indemnity Co., 557 F.2d 51, 58 n. 11 (3d Cir.1977).


author: NICKERSON, District Judge.

text:
    UNITED STATES of America, v. Carmine LOMBARDOZZI, Defendant.
    No. 81 CR 233.
    United States District Court, E.D. New York.
    Oct. 25, 1985.
    Raymond J. Dearie, U.S. Atty., Edward A. McDonald, Atty. in Charge, Organized Crime Strike Force, Brooklyn, N.Y. (Laura A. Ward, of counsel), for plaintiff.
    Charles F. Carnesi, Jacob Evseroff, Brooklyn, N.Y., for defendant.
   OPINION

NICKERSON, District Judge.

The court has before it an alleged violation of probation by defendant Carmine Lombardozzi. On defendant’s plea of guilty to a violation of the Internal Revenue Code the court sentenced him on January 1, 1982 to three years imprisonment to serve six months with the balance on probation.

One condition of probation was that defendant “refrain from violation of any law (federal, state or local).” The government charges that while on probation defendant engaged in loansharking and in promoting gambling contrary to New York law. The court finds insufficient evidence to sustain the charge of loansharking.

The evidence at the hearing as to the promotion of gambling consisted of the testimony of a New York City police undercover officer, who in July and August 1983, met with defendant and taped the conversations. New York City police officers rented a store on Bath Avenue in Brooklyn for the purpose of operating a purportedly illegal gambling business. At the front of the store the officers sold soft drinks, yogurt and the like. In the rear they installed slot machines and “Joker Poker” machines.

An undercover officer, using the name of Michael Simon, first met defendant at a restaurant in Brooklyn on July 29, 1983. As the tape reveals, the officer explained to defendant that the store was being opened, that “the front’s going to be legitimate setup,” and that the back, entry to which could only be gained by operating a buzzer system, contained three “Joker Poker payoffs” and three slot machines. Defendant said: “Here’s what you’re gonna do; here’s what our arrangement will be, I’m your partner and I put you in that store and that’s where you stand.... Anybody wants to know, go see Carmine Lombardoz-zi.”

When the officer asked defendant to “put the word out for people to come in,” he replied “[njaturally — it’s my place.” He also told the officer “I’m gonna put it on record that you’re with me,” and advised him that if “[a]nybody comes in there and tries to (expletive deleted) shake you or anything,” the officer should say “you go see that guy, that’s his (expletive deleted) joint; I’m only a (expletive deleted) operator here; whatever he tells me to do, I do.” Finally defendant gave assurances that he would “take all the weight off you,” and had the officer repeat the store’s address.

The second taped conversation took place in the same restaurant on August 18, 1983. The officer reminded defendant of the store with the slot machines and Joker Poker machines and said that a man named Spero was coming to the store. Defendant responded: “Tell Spero I’m your partner. I told you that. Didn’t I tell you that from the start. Just tell him to see Carmine. Whatever Carmine wants me to do, this is what I do.”

When the officer asked if defendant could suggest to his “friends” to come “in back and gamble a little,” defendant answered “I’ll see what I can do for you, Mike, on that basis.” He then called over Frank Balsamello and instructed him: “I want you to go over to his place. He’s got a game room.... Stop in there and take a view of this place and see what we could do, send anybody over there.”

The officer then explained the situation to Balsamello, who later visited the store on several occasions and received money from the officer.

On September 13, 1985 defendant was acquitted in New York Supreme Court, Kings County, not only of other charges but also of the very charge which is the basis for the allegation of violation of probation.

Under Section 225.05 of the New York Penal Law

A person is guilty of promoting gambling in the second degree when he knowingly advances or profits from unlawful gambling activity.

Section 225.00 defines the terms used in the laws establishing gambling offenses. Subdivision 4 of that section provides that a person “advances gambling” when, acting other than as a player, he “engages in conduct which materially aids any form of gambling activity.” The subsection then recites in part, that “[s]uch conduct includes but is not limited to” conduct directed toward a variety of ends including the “creation or establishment” of the particular game, the maintenance of the premises, the “solicitation or inducement of persons to participate therein,” or “any other phase of its operation.”

The fact that defendant was acquitted of a charge of violation of Section 225.05 is not conclusive. The burden of proof was greater in the criminal case. United States v. Chambers, 429 F.2d 410, 411 (3d Cir.1970); United States ex rel. Carrasquillo v. Thomas, 527 F.Supp. 1105, 1109 (S.D.N.Y.1981), aff'd, 677 F.2d 225 (2d Cir.1982).

While the Thomas case requires no more than proof of the violation by a preponderance of the evidence, this court finds that the government has established by clear and convincing evidence that defendant violated that section. By asking Balsa-mello to view the store and see what “we” could do to send people there, defendant “solicited” someone to “participate” in illegal gambling. Moreover, conduct encouraging the continuance of a gambling site by assuring the proprietor of “protection” appears to this court to be “materially” aiding gambling activity. The examples given in subdivision 4 of Section 225.00 make it clear that the “material” aid need not be in the form of funds or physical assets.

Even if Section 225.05 were to be read to require the acceptance of money, as defendant contends, he would be guilty under Section 105.20 of conspiracy to promote gambling. Defendant agreed with Balsa-mello as well as with the police officer to help the enterprise. Balsamello actually received money. It seems hardly' likely that defendant intended to do the officer a cost free favor. Even assuming defendant had merely charitable instincts and no personal gain in mind, it would be fatuous to believe that such benevolent feelings extended not to Balsamello but to the officer.

Moreover, even if defendant had supposed that his sole coconspirator was the officer, he would be held guilty. New York law was not always thus. Before 1965 New York required that there be a corrupt compact between two or more persons. But in 1965 Section 105.30 of the Penal Law became effective and provided in substance that it is no defense to a prosecution for conspiracy that one or more of the coconspirators could not be guilty. The New York Court of Appeals held that after the adoption of this law a defendant may be guilty of conspiracy even though his only coconspirator feigned agreement and had no criminal intent. People v. Teeter, 47 N.Y.2d 1002, 420 N.Y.S.2d 217, 394 N.E.2d 286 (1979); People v. Schwimmer, 47 N.Y.2d 1004, 420 N.Y.S.2d 218, 394 N.E.2d 288 (1979); People v. Villetto, 47 N.Y.2d 1006, 420 N.Y.S.2d 219, 394 N.E.2d 288 (1979).

Here defendant conspired with the officer to help the gambling establishment by becoming a “partner,” offering protection, and asking Balsamello to promote business. The fact that the officer had no criminal intent makes no difference.

For much the same reasons defendant was guilty of aiding and abetting the commission of the crime of promoting gambling. Section 20.00 of the Penal Law makes it a crime intentionally to aid someone else to engage in criminal conduct, and the active encouragement of the continuation of a gambling site plainly constitutes such aiding of another person. Section 20.-05 of the Penal Law provides that it is no defense that that other person lacked “the mental state required for the commission” of the offense.

The court has found no New York cases construing this section, and construes it in the same spirit as that used by the New York courts in interpreting the conspiracy sections.

The court finds that defendant violated the conditions of his probation.


author: KEENAN, District Judge:

text:
    Virgil ALESSI, Petitioner, v. Dale THOMAS, Warden, Metropolitan Correctional Center, Benjamin F. Baer, Chairman, United States Parole Commission, and United States Parole Commission, Respondents.
    No. 85 Civ. 5651 (JFK).
    United States District Court, S.D. New York.
    Oct. 25, 1985.

      Fisher & Ely, P.C., New York City, for petitioner; David W. Ely, of counsel.
    Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. New York City, for respondents; Noel Anne Ferris, of counsel.
   OPINION and ORDER

KEENAN, District Judge:

Petitioner Virgil Alessi (“Alessi”) petitions this Court for a writ of habeas corpus. Alessi, who is incarcerated at the Metropolitan Correctional Center in New York City, asserts that the revocation of his parole for violation of a parole condition was without basis and unlawful. He argues that his conduct did not constitute “association” within the meaning of the condition. Furthermore, he claims that the parole condition, which read, “[y]ou shall not associate with persons who have a criminal record unless you have permission of your probation officer,” was unconstitutionally vague as applied to him. Thirdly, Alessi asserts that the decision to incarcerate him for an additional period of thirty months prior to a presumptive parole, a period greater than the nine-month period set forth in the United States Parole Commission’s (“Commission’s”) guidelines, was arbitrary, capricious and an abuse of the Commission’s discretion.

Finally, Alessi contends that the Commission’s February 21,1985 remand of Alessi’s case to the regional Commissioner violated his right to due process of law. Alessi also seeks release on bail pending the determination of the instant petition.

For the reasons set forth below, the Court will not issue a writ of habeas corpus. However, the case is remanded to the Commission for redetermination of the appropriate period of incarceration prior to Alessi’s parole.

FACTS

The facts pertaining to Alessi’s conviction, parole and parole revocation, as well as his prior application for a writ of habeas corpus, were set forth in this Court’s June 12, 1985 Opinion and Order denying the writ on grounds of failure to exhaust administrative remedies. Alessi v. Thomas, No. 85-4053 (JFK) (June 12, 1985 S.D.N.Y.). For the purposes of completeness and clarity, these facts are repeated here.

Alessi was convicted of possession with intent to distribute heroin in the Southern District of New York and on January 5, 1977 was sentenced to a prison term of 13 years to be followed by 6 years on special parole. Alessi was first released on parole by court order on October 26, 1982, but was returned to custody on August 24, 1983 upon the reversal of the order by the Court of Appeals for the Second Circuit. Alessi was again released on parole on September 30, 1983. He was arrested and detained for a parole violation on October 23, 1984, and remains in federal custody.

Alessi’s September 30, 1983 parole was conditioned on eleven enumerated points which were listed on the Certificate of Parole (Exhibit 1 to Declaration of Noel Anne Ferris, August 8, 1985) (“August Ferris Declaration”). Number 10 among them was the prohibition against “association” with persons having a criminal record, cited supra at 1. Alessi admits that he received numerous telephone calls from four individuals with criminal records while on parole between February, 1983 and June, 1984.

In September, 1984, Alessi’s probation officer advised the Regional Commissioner of the Parole Commission by letter that Alessi was associating with other convicts (Exhibit 3 to August Ferris Declaration). The Commission issued a parole violation warrant against Alessi on October 15, 1984 (Exhibit 5 to August Ferris Declaration). The warrant was executed on October 23, 1984. On November 14,1984 a preliminary hearing was held on the issue of revocation of Alessi’s parole. The Regional Commissioner found probable cause to hold petitioner for a final revocation hearing. Ales-si was informed of this decision by letter dated November 30, 1984 (Exhibit 7 to August Ferris Declaration).

The final revocation hearing was held on January 4,1985 at the Metropolitan Correctional Center (“MCC”) in New York, New York. The hearing examiners prepared a report (Exhibit 8 to August Ferris Declaration) and concluded that Alessi’s parole be revoked, that the time served on parole should be credited to Alessi’s sentence, but that he would receive an additional five months for the violation.

The Regional Commissioner reviewed and confirmed the recommendations including the five month term of imprisonment suggested by the panel and also adopted by the Administrative Hearing Examiner. By Notice of Action dated January 17, 1985, Alessi’s case was referred to the National Commissioners for decision, pursuant to 28 C.F.R. § 217-07 (Exhibit D to Affidavit of Ivan S. Fisher, July 24, 1985) (“July Fisher Affidavit”).

While the case was before the National Commissioners, an Assistant United States Attorney, at the request of the Chief Analyst, National Appeals Board, (Exhibit 10 to August Ferris Declaration) sent a Form 792 Report on Convicted Prisoner by United States Attorney from the Southern District of New York (“Form 792 Report”) to the National Commissioners (Exhibit 11 to August Ferris Declaration). The report was signed by Rhea Kemble Brecher, Chief of the Narcotics Unit, and was based upon a review of Alessi’s file by a paralegal in the United States Attorney’s Office, as well as on conversations between the paralegal and probation officers.

Alessi’s case was remanded to the Regional Commissioner for rehearing on the basis of Ms. Brecher’s submission (Exhibit F to July Fisher Affidavit). On or about May 4, 1985, Alessi’s case was reheard by the panel examiners. Alessi was invited to respond to the Form 792 Report. No new evidence was submitted except an affidavit prepared by Alessi’s previous attorney (Exhibit G to July Fisher Affidavit) and a transcript of the first revocation hearing. The panel found that Alessi had violated his parole. It recommended revocation of parole, the credit of time spent on parole to Alessi's sentence, and that Alessi serve thirty months for the violation prior to presumptive parole (Exhibit 14 to August Ferris Declaration).

Alessi’s file was reviewed in the Regional Office by the Administrative Hearing Examiner. The Hearing Examiner adopted the panel’s recommendations and endorsed them to the Regional Commissioner. The Regional Commissioner reviewed the recommendations and the record in support and agreed with all of the recommendations, including the thirty month term of imprisonment. The ease was then referred to the National Commissioners (Exhibit 15 to August Ferris Declaration).

Before the Commission had an opportunity to rule in Alessi’s case, Alessi filed his first petition for a writ of habeas corpus in the Southern District of New York, in which he challenged his parole revocation and sought release on bail. On June 12, 1985, this Court dismissed the petition on the basis of Alessi’s failure to exhaust administrative remedies. The Court also denied Alessi’s application for bail. Alessi v. Thomas, supra at 3.

By Notice of Action dated June 13, 1985, four members of the Commission voted unanimously to revoke Alessi’s parole and imposed a thirty month term of imprisonment (Exhibit J to July Fisher Affidavit). Alessi’s appeal to the full Commission (Exhibit K to July Fisher Affidavit) resulted in an affirmance in all respects on the June 13 Notice of Action, in a second Notice of Action dated July 22, 1985 (Exhibit 17 to August Ferris Declaration) (“the Notice of Action”). Alessi thus fully exhausted his administrative remedies. The instant petition for a writ of habeas corpus was filed on July 24, 1985.

DISCUSSION

1. The Relevant Acts Constituted “Association”.

Alessi claims that the more than forty telephone calls which he had with convicted felons do not constitute “association” as proscribed in parole condition 10 (“the condition”). He asserts that the telephone calls with the four callers were too “fleeting,” Birzon v. King, 469 F.2d 1241 (2d Cir.1972), or not “planned or prolonged” so as to constitute “association”. Arciniega v. Freeman, 404 U.S. 4, 92 S.Ct. 22, 30 L.Ed.2d 126 (1971). The Court disagrees. Alessi accepted the charges for more than forty collect calls from people whom he admits he knew had criminal records. The calls were placed over a period of fifteen months. Based on these facts, the Court finds that the contacts were not “fleeting”, but rather, sustained and extensive.

Alessi’s invocation of the Supreme Court’s language in Arciniega, in which it was stated:

[w]e do not believe that the parole condition restricting association was intended to apply to incidental contacts between exconvicts in the course of work on a legitimate job for a common employer...

is inapposite. Arciniega at 4, 92 S.Ct. at 22. Clearly, Alessi was not forced to encounter the four callers in the course of work on a legitimate job. Rather, he received phone calls from a distance which are not alleged to have had any connection to his own work. Moreover, and more significantly, Alessi accepted the collect calls which he could easily have rejected, thereby elevating the contacts from “incidental” to purposeful. Whether he placed the calls or merely accepted the charges is an irrelevancy. The pertinent point is that Alessi intentionally availed himself of the opportunity to make contact with the four parties. The Court concludes, therefore, that Ales-si’s conduct constituted “association” within the meaning of the condition. See also United States v. Albanese, 554 F.2d 543 (2d Cir.1972).

2. The Definition of “Association” was not Vague so as to be Unconstitutionally void.

Alessi argues that since he “did not know, could not have known, and was in fact never told that the receipt of telephone calls was ‘association’ within the meaning of the parole conditions, the condition is unconstitutionally vague as applied to him,” (Memo in Support, p. 14). The Court is not persuaded.

While acknowledging that Alessi’s probation officer stated that he never specifically instructed Alessi not to “telephonically communicate,” (Exhibit B, p. 16 to July Fisher Affidavit), the Court notes the numerous statutory and case law examples in which phone contacts are held to constitute “association”. For example, federal statutes recognize that criminal activity can be planned through use of the telephone, and, in fact, the use of the telephone for the planning of illegal acts can be, itself, a crime. See, e.g., 18 U.S.C. § 793 (espionage); 18 U.S.C. § 875 (extortion); 18 U.S.C. § 1343 (wirefraud); 18 U.S.C. § 2101 (inciting riots). Thus, the United States Code is replete with statutes which hold phone contacts to be unlawful if linked to criminal activity. Furthermore, the Court notes the fact that the telephone is a commonplace means of communicating in this modern age, and has altered the meaning of “association”, accordingly. See, e.g., Calavo Growers of California v. Belgium, 632 F.2d 963, 969 (2d Cir.1980), Newman, J., concurring. Alessi cannot credibly claim that he could not imagine “association” to include phone conversations, when the Code contains examples of prohibited phone contacts and daily life is so intricately linked by the telephone.

Further, telephone contacts have been held to constitute “association” sufficient to uphold a revocation of parole. In Cataldo v. Warden, MCC, No. 85-5737 (WK), (August 1, 1985, S.D.N.Y.), Judge Peter K. Leisure dismissed from the bench a petition for habeas corpus in which the parolee denied having had telephone conversations with persons having criminal records and incarcerated prisoners, but where records documented that calls had been made. Clearly, telephone contacts are among the types of conduct that the non-association condition sought to restrict. Alessi should have been aware of the numerous and not unusual situations in which phone contacts constitute proscribed conduct. He does not convince the Court that the condition was unconstitutionally vague as it applied to him.

3. The Decision to Exceed the Commission’s Sentencing Guidelines was an Abuse of Discretion.

Alessi argues that the Commission’s decision to incarcerate him for thirty months was not based on an adequate ground, was arbitrary and capricious, and constituted an abuse of discretion, in that the sanctions imposed on him exceeded those allowable under the applicable administrative guidelines.

The applicable parole guidelines are set forth at 28 C.F.R. § 2.21(a). This section states, “[i]f revocation is based upon administrative violation(s) only (i.e., violations other than new criminal conduct,) the customary time to be served before release shall be [less than or equal to] 9 months.” The section further provides that “[a] decision outside these guidelines may be made when circumstances warrant.” 28 C.F.R. § 2.21(e). It has been established that deviation from the guidelines is permissible if the Commission “determines there is good cause for so doing.” Bialkin v. Baer, 719 F.2d 590 (2d Cir.1983). 18 U.S.C. § 4206(c).

The concept of reviewable “good cause” has been held to include any “especially mitigating or aggravating circumstances in a particular case.” 28 C.F.R. § 2.21(c); Bialkin at 594. Further, as the legislative history indicates, deference is given to the Commission’s “broad discretion” as to what constitutes “good cause.” H.R.Rep. No. 838, 94th Cong.2d Sess. 27, reprinted in 1976 U.S.Code Cong. & Ad. News 335. Only an “irrational,” or unreasonable decision, or an abuse of discretion by the Commission is subject to review. Iuteri v. Nardoza, 732 F.2d 32 at 37 (2nd Cir.1984); Alessi v. Quinlan, 711 F.2d 497, 500 (2d Cir.1983).

The Court finds that the Commission’s decision to incarcerate Alessi for thirty months, more than three times the suggested period of nine months found in the guidelines, was so irrational as to require a remand for redetermination of sentence.

Though the Court’s scope of review is circumscribed, case law in the analogous area of initial parole determinations states that “to justify a decision outside the guidelines, the reasons given in the notice of action must stand apart from the factors already considered in determining the severity rating.” Baker v. McCall, 543 F.Supp. 498, 500 (S.D.N.Y.1981), affirmed, 697 F.2d 287 (2d Cir.1982). Similarly, in Lupo v. Norton, 371 F.Supp. 156, 163 (D.Conn.1974) the court stated:

It is simply irrational for seriousness of the offense to be used first to determine the appropriate guideline period and then to be used again as the stated reason for confining a prisoner beyond that guideline.

Cited in Brach v. Nelson, 472 F.Supp. 569, 574 (S.D.N.Y.1979). Such “impermissible double counting” thus exists when the Commission “uses the same criteria to determine both the guideline period and whether to extend a prisoner’s parole date beyond the guideline period.” Alessi v. Quinlan, 563 F.Supp. 911, 912 (S.D.N.Y.1982), Hearn v. Nelson, 496 F.Supp. 1111, 1115-1116 (D.Conn.1980).

In the instant case, the Commission stated in its Notice of Action that:

a decision above the guidelines appears warranted because your violation behavior involved the following aggravating factors: you have demonstrated a total disregard for your conditions of parole. Your irresponsibility is reflected in the fact that you accepted no less than forty (40) collect calls from convicted felons confined at Bureau of Prisons facilities at Danbury, Connecticut and Otisville, New York. This serious violation is in addition to the fact that you have also been in contact with person(s) under investigation. “Association" is violation of parole.

(Exhibit 16 to August Ferris Declaration).

Thus, it appears that the Commission felt it had found reasons “standpng]' apart from the factors already considered in determining” the breach of a parole condition. The Court cannot find a rational basis for this determination. The Court, while not “second-guessing” the finding of “total disregard”, Bialkin at 593, determines that the violation itself is not sufficiently separate from the supposed “aggravating factors” to rationally justify the determination that “good cause” existed for imposing a sentence outside the guidelines.

The Commission stated, and underlined for emphasis, that “association is violation of parole.” This clearly constituted the basis for the Commission’s determination of the relevant guideline period, 28 C.F.R. § 2.21(a). The Commission also found that, as an “aggravating factor,” Alessi had “demonstrated a total disregard for [his] conditions of parole.” The Court notes that, except for the “association” itself, it is unable to determine any act indicating such “total disregard.” The respondents suggest various rationales for the Commission’s finding of “total disregard,” the first of which is the “nature and frequency of the contacts.” (Respondents’ Memo in Support, p. 20). However, “the nature of the contacts and the frequency with which they occurred” were facts considered in the selection of the relevant guideline. (Respondents’ Memo in Support, p. 20). Indeed, if not for the nature and frequency of the phone calls, a violation would not have existed. See supra at 593. The Commission’s second suggested “aggravating factor,” that of “irresponsibility,” is similarly inseparable from the underlying violation. Alessi’s acts of “association” were arguably irresponsible. However, the Commission fails to point to any irresponsible acts other than the “associations” themselves, and indeed, in the Notice of Action links the “irresponsibility” to the fact that Alessi accepted the subject phone calls.

The Notice of Action alludes to a third possible “aggravating factor,” the fact of Alessi’s having “been in contact with persons] under investigation.” (Exhibit J to July Fisher Affidavit). This asserted fact also appears in the May 17, 1985 Memorandum of Regional Commissioner Daniel R. Lopez (Exhibit 15 to August Ferris Declaration). The source of the assertion is the Form 792 Report submitted by Rhea Kem-ble Brecher (Exhibit 11 to August Ferris Declaration). Without reevaluating the evidence considered by the Commission, the Court notes that it cannot determine how this fact can be separated from the underlying fact of “association” with the convicted felon. Nor can the Court determine on what basis association with a party under investigation constitutes an “aggravating factor,” when Alessi was not necessarily aware that such investigation was in progress or such action prohibited.

Thus, it appears that the Commission used the fact of “association” first to determine the appropriate guideline period and then ... as the stated reason for confining [the] prisoner beyond that guideline.” Lupo at 163. Since such “impermissible double counting” is “simply irrational”, Lupo at 163, the Court finds that the decision to exceed the guidelines was not based on “good cause.”

CONCLUSION

When faced with a failure by the Commission to exercise proper discretion in the parallel area of initial parole decisions:

the only remedy which the [district] court can give is to order the Board to correct the abuses or wrongful conduct within a fixed period of time, after which, in the case of non-compliance, the court can grant the writ of habeas corpus and order the prisoner discharged from custody.

Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir.1976). This Court has no power to order Alessi released on parole, such power having been vested by Congress in the “sound discretion of the Parole Board.” Billiteri at 944 (cites omitted). Thus, the Court having found that the Commission based its decision to exceed the guidelines on an impermissible ground, it can simply order the Commission to reconsider its determination of the appropriate period of incarceration for Ales-si’s violation of the condition. Accordingly, it is hereby ordered that the case be remanded to the Commission for a redetermi-nation of the sentence. The Commission shall determine such new sentence within ninety days of the date of this opinion and order. Failure of compliance will result in issuance of the writ of habeas corpus.

SO ORDERED.

      . The callers are identified as Frank D’Amato, Michael Clemente, James Heimerle and Rocco Evangelista. D’Amato and Evangelista had previously been co-defendants with Alessi on a narcotics trafficking charge. Charges against D’Amato and Evangelista were ultimately dropped, while Alessi pleaded guilty to one count of conspiracy (Exhibit 11 to August Ferris Declaration). Evangelista is a lifelong friend of Catherine Cross, Alessi’s common-law wife. Al-essi asserts that D’Amato called him in order to make contact with an attorney previously retained by Alessi. The calls from Clemente were purportedly in connection with another lawyer’s activities on behalf of Clemente. Heimerle had been incarcerated with Alessi and allegedly called him to discuss legal research he had performed for Alessi, as well as to discuss retention of an attorney (Affidavit of Ivan S. Fisher, July 24, 1985, ¶ 5) ("July Fisher Affidavit”).
      Telephone records supplied to the Nassau County District Attorney's Office indicate that from February, 1983 through June, 1983, Alessi received at least 15 calls from Evangelista. From January, 1984 through June, 1984 an additional 23 calls were received. In the period from January, 1983, through May, 1983, 12 calls from Evangelista’s home were made to the restaurant where Alessi worked (Exhibit 3 to August Ferris Declaration).
      Moreover, from November, 1983 to June, 1984, Alessi received and accepted a total of 41 collect calls from D’Amato, Clemente and Heim-erle.
      D’Amato was apparently later convicted on a different charge. He is currently incarcerated at a federal correctional facility, as are Clem-ente and Heimerle. Evangelista is not currently incarcerated (Exhibit 3 to August Ferris Declaration).

      . Petitioner gives a May 4, 1985 date for the hearing; respondent gives a date of May 6, 1985.

      . Respondents state in their papers that two affidavits were submitted. The second affidavit is that of Anthony Prudenti, Alessi’s employer (Attachment to Exhibit 14 to August Ferris Declaration).

      . Alessi’s petition includes a prayer that he be released on bail pending a decision on the petition. The Court has not seen fit to award this relief, and, in light of the instant decision, determines that the request for bail pending decision is now moot.

      . There are no records before the Court indicating the duration of the calls.

      .Alessi’s statements, unsupported by documentary evidence, that he made "small talk before giving the phone over to the individual the caller wished to speak to" (Memo in Support, p. 13), or that he merely conveyed messages from inmates to their lawyers, does not dissuade the Court from finding that “association” took place. The frequency of the contacts and the volitional aspect of accepting the charges militate toward a finding of “association”.

      . Brecher states that an assistant parole officer "became aware of a local investigation into the recent activities of ROCCO EVANGELISTA” (emphasis in original). There is no indication that Alessi was aware that such an investigation was in progress.

      . Respondents also suggest that a "relationship” between the subject violation and prior crimes indicated an additional aggravating factor, that of "ongoing nature” of the violation. (Respondents' Memo, p. 20-21.) See Bialkin, supra.

      The instant offense of “association", however, was not "related" to Alessi’s prior convictions so as to establish the separate aggravating factor, that of "ongoing nature” of the violation. Bial-kin, supra. While there was a “relationship" between the violative phone calls and Alessi's prior convictions, based on the participation of D’Amato and Evangelista in both matters, this fact alone fails to comprise an "aggravating factor” constituting "good cause" for exceeding the guidelines. Alessi’s phone calls, although a per se violation of parole, were not shown in the record to have been concerned with drug-trafficking or conspiracy, and cannot be seen as "related” or as a "similar offense” simply because they were held with D’Amato and Evan-gelista. The Commission had no evidence before it upon which to base a conclusion of relationship of the calls to an earlier, similar offense.
      In any event, this purported "aggravating factor” not having been cited by the Commission itself in its Notice of Action, it cannot serve as a basis for the Commission’s granting or denying release on parole. 18 U.S.C. § 4206(c). This section reads as follows:
      (c) The Commission may grant or deny release on parole notwithstanding the guidelines referred to in subsection (a) of this section if it determines there is good cause for so doing: Provided, That the prisoner is furnished written notice stating with particularity the reasons for its determination, including a summary of the information relied upon.

      . Alessi’s third claim having proven dispositive of this application, the Court need not proceed to the fourth, constitutional claim.