additionally cite to John Hancock Mutual Life Ins. Co. v. Harris Trust & Savings Bank, 510 U.S. 86, 95-96, 114 S.Ct. 517, 126 L.Ed.2d 524 (1993); Srein v. Frankford Trust Co., 323 F.3d 214, 220-22 (3d Cir.2003); LoPresti, supra at 37, n. 4; Bd. of Trustees of Bricklayers Local 6 of New Jersey Welfare Fund v. Wettlin Associates, Inc., 237 F.3d 270, 273 (3d Cir.2001); Ream v. Frey, 107 F.3d 147 (3d Cir.1997); and Briscoe v. Fine, 444 F.3d 478, 491 (6th Cir.2006). See (Doc. 12 at 7-8). 6 . The Day court found its construction of "fiduciary’' consistent with the decisions of the other circuits that have considered the issue. See Day, 436 F.3d at 237 (citing David P. Coldesina, D.D.S., P.C., Employee Profit Sharing Plan & Trust v. Estate of Simper, 407 F.3d 1126, 1132-35 (10th Cir.2005) (<HOLDING>); Srein, 323 F.3d at 220-22 (holding a bank is
holding that a termination of an erisa plans benefits must be based upon the plans terms and language holding that funds for an accountant were appropriately denied where defendant did not show that lack of an accountant prejudiced his case holding an accountant is a fiduciary under the disposition clause where he wrongfully disbursed the plans funds holding that the plaintiff stated a claim for breach of fiduciary duty where he alleged that the plan offered funds that charged higher fees than available alternatives that underperformed during the relevant time period and that were included in the plan because of improper influence by the plans trustee recognizing that benefit plans must designate a fiduciary to serve as the plan administrator