to collective bargaining agreements with Local 560, Oil City-NJ agreed to make contributions to the Fund on behalf of its employees covered by the agreements. In September 1984, Oil City-NJ ceased operations and ceased paying contributions to the Fund.
The Trustees determined that Oil City-NJ had permanently terminated operations and calculated its withdrawal liability. On November 19, 1984, the Fund sent Oil City-NJ a notice and demand for payment of its withdrawal liability under the provisions of the MPPAA ("Notice"). The Notice set forth the total amount of the withdrawal liability assessment, $ 59,966.00, which was to be paid in monthly installments of $ 1,738.00 beginning on February 1, 1985. The Notice also informed Oil City-NJ that it had 90 days from receipt of the Notice to request a review of the Trustees' assessment determination and to seek arbitration before the New Jersey State Board of Mediation--Pension and Welfare Panel. The Notice also stated that the Trustees had a right to look to another company under common control with Oil City-NJ in the event the assessment could not be collected from it.
No review or arbitration proceedings were initiated within ninety days of receipt of the Notice and no payment of the withdrawal liability assessment was made. On February 7, 1985, the Trustees sent a past due Notice to Oil City-NJ.
On October 8, 1985, the Fund commenced an action in United States District Court in New Jersey against Oil City-NJ. See Trucking Employees of North Jersey Welfare Fund, Inc. v. Oil City Petroleum, Civ. Act. No. 85-4782. A default judgment was entered against Oil City-NJ on September 25, 1986 in the amount of $ 59,966.00, plus interest of $ 10,194.22, liquidated damages of $ 11,993.20, and attorneys' fees and costs of $ 2,750.00, totalling $ 84,897.42. To date, no part of this judgment has been paid.
Over six years later, and eight years after Oil City-NJ first defaulted on its withdrawal liability, the Trustees instituted this action against the defendants, alleging that they are liable for the withdrawal liability assessment and the 1986 judgment.
It is conceded that defendants Gotham Fuel Corporation, Hobin Fuel Oil, Oil City-NY, Ray Combustion Corporation and Jersey York Corporation ("Oil Group") were, as of the date of the withdrawal, members of a controlled group with the contributing employer, Oil City-NJ.
A. Standard for Summary Judgment
Summary judgment may be granted only if the pleadings, supporting papers, affidavits, and admissions on file, when viewed with all inferences in favor of the nonmoving party, demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.), cert. dism'd, 483 U.S. 105 (1987). Put differently, "summary judgment may be granted if the movant shows that there exists no genuine issues of material fact that would permit a reasonable jury to find for the nonmoving party." Miller v. Indiana Hospital, 843 F.2d 139, 143 (3d Cir.), cert. denied, 488 U.S. 870, 102 L. Ed. 2d 147, 109 S. Ct. 178 (1988). An issue is "genuine" if a reasonable jury could possibly hold in the nonmovant's favor with regard to that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A fact is material if it influences the outcome under the governing law. Id. at 248.
Within the framework set out above, the moving party essentially bears two burdens. First, there is the burden of production, of making a prima facie showing that it is entitled to summary judgment. This may be done either by demonstrating that there is no genuine issue of fact and that as a matter of law, the moving party must prevail, or by demonstrating that the nonmoving party has not shown facts relating to an essential element of the issue for which it bears the burden. Once either showing is made, this burden shifts to the nonmoving party who must demonstrate facts supporting each element for which it bears the burden as well as establish the existence of genuine issues of material fact. Second, there is the burden of persuasion. This burden is a stringent one which always remains with the moving party. If there remains any doubt as to whether a trial is necessary, summary judgment should not be granted. See Celotex Corp. v. Catrett, 477 U.S. 317, 330-33, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-61, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Advisory Committee's Notes on Fed. R. Civ. P. 56(e), 1963 Amendment; see generally C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2727 (2d ed. 1983).
B. Plaintiff's Motion and Defendants' Cross-Motion for Summary Judgment
The plaintiff seeks partial summary judgment against the Oil Group arguing that the members of the Oil Group, as members of a controlled group with Oil City-NJ, are liable jointly and severally for the withdrawal liability as a matter or law. Defendants have cross-moved for summary judgment arguing that the present action is time-barred.
As noted above, under the MPPAA, all trades or businesses under "common control" are treated as a "single employer." 29 U.S.C. § 1301(b)(1). Thus, members of a group of businesses under common control with a contributing employer are liable for the employer's withdrawal liability. Flying Tiger, 830 F.2d at 1244 ("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.").
Here, it is undisputed that the Oil Group defendants were trades or businesses under common control with Oil City-NJ at the time of withdrawal in 1984. Thus, as members of a controlled group with Oil City-NJ, they are liable for its withdrawal liability assessment. Moreover, by failing to demand review and arbitration of the withdrawal liability assessment, the controlled group has waived the right to contest the amount of withdrawal. See Local 478 Trucking and Allied Industries Pension Fund v. Jayne, 778 F. Supp. 1289, 1313 (D.N.J. 1991). The only issue that remains therefore is whether this action is time-barred.
Defendants argue that the present action is barred by the statute of limitations set forth in the MPPAA. See 29 U.S.C. § 1451(f). Section 1451(f) provides:
An action under this section may not be brought after the later of -