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BOARD OF TRUSTEES OF TRUCKING EMPLES. OF NORTH JER

March 31, 1993

BOARD OF TRUSTEES OF TRUCKING EMPLOYEES OF NORTH JERSEY WELFARE FUND, INC. - PENSION FUND, Plaintiff,
v.
ABLE TRUCK RENTAL CORPORATION, a New Jersey corporation, ABLE TRUCKING REPAIRS LTD., INC., a New Jersey corporation, CLAUSE INDUSTRIES, INC., a New Jersey corporation, CLAUSE TRUCKING AND WAREHOUSING CORP. p/k/a CLAUSE WAREHOUSING & DISTRIBUTION CORPORATION, a New Jersey corporation, CLAUSE REALTY CORP., a New Jersey corporation, jointly and severally, Defendants.



The opinion of the court was delivered by: JOHN C. LIFLAND

 Lifland, District Judge

 Presently before the Court are cross-motions for summary judgment. The issue addressed in the instant matter is whether an action initiated against members of a controlled group, to enforce a judgment previously entered against another member of the controlled group, is governed by the statute of limitations for enforcement of judgments, or by the limitations period set forth in § 1451 of the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA").

 BACKGROUND

 Legal Background:

 Under the Employee Retirement Income Security Act of 1974 ("ERISA") employers may contribute to pension funds on behalf of their employees. 29 U.S.C. § 1001 et seq. In 1980, ERISA was amended by the MPPAA. 29 U.S.C. § 1381 et seq. Pursuant to the MPPAA, when a contributing employer withdraws from participation in a fund, the employer is assessed withdrawal liability. Since under the MPPAA all businesses under common control are treated as one employer, 29 U.S.C. § 1301(b)(1), each member of a controlled group is liable for the withdrawal liability of any other controlled group member. See e.g. Flying Tiger v. Teamsters Pension Fund, 830 F.2d 1241, 1244 (3d Cir. 1987) ("Since a controlled group is to be treated as a single employer, each member of such a group is liable for the withdrawal of any other member of the group").

 Fund administrators initially determine the amount of withdrawal liability owed. After making such a determination, the fund must notify the employer of the amount of liability and demand payment. 29 U.S.C. § 1399(b)(1). Employers have ninety days from the date of the notice to institute statutory review and arbitration proceedings to contest the assessment. Failure to initiate such proceedings results in default. 29 U.S.C. §§ 1399(b)(2), 1401(a).

 If an employer fails to make the required payments, the fund may bring an action for payment against the employer. 29 U.S.C. § 1451. As provided by § 1451, such an action must be brought no later than:

 
(1) six years after the date on which the cause of action arose, or
 
(2) three years after the earliest date on which the plaintiff acquired or should have acquired knowledge of the existence of such cause of action; except in the case of fraud or concealment such action may be brought no later than six years after the date of discovery of the existence of such cause of action.

 Factual Background:

 The Board of Trustees of Trucking Employees of North Jersey Welfare Fund, Inc. - Pension Fund ("Fund") is the plan sponsor of a multiemployer pension fund as defined under ERISA. 29 U.S.C. §§ 1002(37), 1301(3). Able Trucking Company ("Trucking") was a contributing employer to the Fund pursuant to a collective bargaining agreement it executed with Teamsters Local Union No. 560 ("Local 560"). The defendants are several companies which plaintiff alleges were members of a controlled group with Trucking: Able Truck Rental Corporation ("Rental"), Able Trucking Repairs LTD., Inc. ("Repairs"), Clause Industries, Inc. ("Industries"), Clause Trucking and warehousing Corp. ("Warehousing") and Clause Realty Corp. ("Realty").

 In July 1983 Trucking ceased operations. On November 7, 1983, the Fund determined that Trucking had permanently terminated its operations and ceased contributing to the Fund. Thus, pursuant to the MPPAA, the Fund calculated an assessment against Trucking for complete withdrawal and sent the statutory notice and demand. The notice advised Trucking that Trucking's withdrawal liability was $ 129,042.00, to be paid in installments of $ 2,471.00 per month, commencing January 1, 1984, with the final payment of 1,643.00 payable on February 1, 1989.

 The notice also stated that Trucking would have 90 days to institute statutory review and arbitration proceedings to contest the assessment. No review and arbitration proceedings were initiated and no payments were made. ...


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