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Cement Masons' Union Local No. 592 Pension Fund v. Almand Brothers Concrete, Inc.

United States District Court, D. New Jersey

October 1, 2018

CEMENT MASONS' UNION LOCAL NO. 592 PENSION FUND, et al., Plaintiffs,
v.
ALMAND BROTHERS CONCRETE, INC., Defendant.

          Judith A. Sznyter, Esq., Jennings Sigmond, P.C. Attorney for Plaintiffs Cement Masons' Union Local No. 592 Pension Fund, Cement Masons' Union Local No. 592 Welfare Fund and Cement Masons' Union Local No. 592 Joint Apprenticeship Training Fund, Cement Masons' Union Local No. 592 Political Action Committee, Cement Masons' Union Local No. 592 of Philadelphia, PA, and Bill Ousey.

          William M. Tambussi, Esq., William F. Cook, Esq., Christopher Albert Reese, Esq., Brown & Connery, LLP 360 Haddon Avenue Westmont, N.J. 08108 Attorneys for Defendant Almand Brothers Concrete, Inc.

          OPINION

          JEROME B. SIMANDLE U.S. District Judge.

         I. INTRODUCTION

         This matter comes before the Court by way of cross-motions for summary judgment submitted by Defendant Almand Brothers Concrete, Inc. (hereinafter “Defendant”) and Plaintiffs Cement Masons' Union Local No. 592 of Philadelphia, PA (hereinafter “Local 592”), its associated benefit funds, [1] and their fiduciary Bill Ousey (hereinafter, collectively, “Plaintiffs”). (See Motion for Summary Judgment (hereinafter “Def.'s Mot.”) [Docket Item 42]; Motion for Summary Judgment (hereinafter, “Pls.' Mot.”) [Docket Item 45].) Plaintiffs allege that Defendant is liable for delinquent contributions from January 1, 2005 to December 31, 2007 under the Employee Retirement Income Security Act of 1974 (hereinafter “ERISA”), 29 U.S.C. § 1145, et seq., and § 301 of the Labor Management Relations Act (hereinafter, “LMRA”), 29 U.S.C. § 185. (See Pls.' Mot. [Docket Item 45].) Defendant alleges that Plaintiffs' claims are time-barred, that Plaintiffs have failed to present any evidence of the terms, conditions, or obligations of a collective bargaining agreement between Local 592 and Almand Brothers, that Plaintiffs have not established the basis for any alleged deficiencies, and that Plaintiffs have no standing to bring this action. (See Def.'s Mot. [Docket Item 43].)

         Because the Court finds that there are genuine disputes of material fact regarding when Plaintiff learned of the delinquent contributions, the terms and conditions of the collective bargaining agreement and the calculation of delinquent contributions, the Court will deny the parties' cross-motions for summary judgment.[2]

         II. BACKGROUND

         A. Factual Background[3]

         Defendant Almand Brothers Concrete, Inc. is a concrete installation contractor based in Audubon, New Jersey. (See Amended Complaint [Docket Item 4], ¶ 11; Answer [Docket Item 16], ¶ 11.) In 1999, Local 592 merged with Local Union 699, and the entities' respective Funds merged in or about 2007.[4] (See Ousey Dep. [Docket Item 44-10], 23:24-24:8; DiSabato Dep. [Docket Item 44-8], 10:3-12:7; Fera Dep. [Docket Item 44-9], 72:15-76:16.) Local 592 and its Funds are the surviving post-merger entities. (See id.) For the time frame of January 1, 2005 to December 31, 2007, Plaintiffs allege that Defendant and Local 592 were parties to a collective bargaining agreement, and that Defendant did not make contributions to the Funds required under such agreement. (See Amended Complaint [Docket Item 4], ¶¶ 18, 22.) Defendants deny this allegation. (See Answer [Docket Item 16], ¶¶ 18, 22.)

         One issue central to the consideration of the present motions is fixing a date for Plaintiffs' discovery of Defendant's alleged contribution shortfalls, which would have triggered the statute of limitations period. In April 2001, Anthony M. Almand, Defendant's owner signed a single-page document which contained a heading that read “Independent Contractors Agreement with Plasterers and Cement Masons Union Local No. 592.”[5] (Almand Dep. [Docket Item 44-1], 24:7-19.)

         On January 22, 2008, Novak Francella, LLC, Plaintiffs' accounting firm, contacted Defendant in order to schedule a payroll compliance review. (See Letter [Docket Item 42-5], Jan. 22, 2008.) This payroll compliance review was part of a routine process, in which Novak Francella typically performed a review of each employer once every three years. (See Cooper Dep. [Docket Item 44-5], 91:10-92:24.) However, due to Novak Francella's inability to get in contact with Defendant and due to a number of cancellations by Defendant's accountant, D. Michael Carmody, the payroll compliance review did not begin until mid-June 2008. (See id. at 106:6-108:23; 130:14-137:5; 143:10-25; 147:17-22.)

         From mid-June 2008 to mid-July 2008, a payroll compliance review was conducted by Marta Cooper, an employee of Novak Francella. (See id. at 11:16-12:24, 147:17-150:3.) The purpose of the review was “to assist [Plaintiffs] in determining whether contributions to the Trust Funds [were] being made in accordance with the collective bargaining agreement in effect and with the Trust Agreements of the Funds.” (Letter [Docket Item 42-14], July 10, 2008.) The compliance review included a review of Defendant's “payroll books and related records . . ., covering the period January 1, 2005 through December 31, 2007.” (Declaration of Jacquelyn K. Coyle in Support of Plaintiffs' Motion for Summary Judgment (hereinafter “Coyle Dec.”) [Docket Item 45-5], ¶ 8.)[6]

         In order to calculate amounts owed by Defendant to the Funds, Novak Francella used specific contractual rate sheets for each corresponding year for “New Jersey Area 699.” (See Cooper Dep. [Docket Item 44-5], 220:10-222:3; Payroll Compliance Review Report [Docket Item 45-6], 1-8 on the docket.) Cooper applied the contractual rates to employees identified on Defendant's payroll as “concrete” and “masonry.” (Cooper Dep. [Docket Item 44-5], 165:5-170:23; 220:10-222:3.) In a letter to Plaintiffs, dated July 10, 2008, Cooper informed Plaintiffs of the procedure and purpose of the review. (See Letter [Docket Item 42-14], July 10, 2008.) The letter also informed Plaintiff that the procedures “were substantially less in scope than an audit of [Defendant's] financial statements” and that no opinion was expressed as to Defendant's financial statements. (Id.)

         Cooper then forwarded the payroll compliance review report to her supervisors, Joanna Kiszlo and Jacquelyn Coyle, for review. [Docket Item 42-8] (Cooper Dep. [Docket Item 44-5], 150:4-6.) On August 22, 2008, Ms. Kiszlo signed off on the report. (Id. at 150:8-12.) On August 29, 2008, Ms. Coyle signed off on the report. (Id. at 150:13-18.) On September 2, 2008, Novak Francella transmitted the Payroll Compliance Review Report to Defendant's accountant and requested information regarding any adjustments or challenges within ten (10) days. (See Letter [Docket Item 42-9], Sept. 2, 2008, 1 on the docket.) The letter plainly stated that “[i]f we have not heard from you within ten business days from the date of this letter, we will submit our report to the Fund Administrator.” (Id.) Defendant did not provide documentation to contest the findings of the payroll compliance review. (See Coyle Dec. [Docket Item 45-5], ¶ 14.) On September 11, 2008, Novak Francella transmitted the final payroll compliance review report to the Funds' Administrator, Anthony DiSabato, and their Trustees.[7] (See Cooper Dep. [Docket Item 44-5], 261:15-262:18, 264:24-268:7.) The payroll compliance review suggested that Defendant owes a total of $2, 236, 041.21[8] to Plaintiffs in unpaid contributions and wage deductions for the period of January 1, 2005 through December 31, 2007. (See Coyle Dec. [Docket Item 45-5], ¶ 11.) Plaintiffs filed the Complaint on August 28, 2014 (see Complaint [Docket Item 1]), and an Amended Complaint on October 21, 2014. (See Amended Complaint [Docket Item 4].)

         B. Procedural History

         On August 28, 2014, Plaintiffs commenced a civil action against Defendant, alleging that between January 2005 and December 2007, Defendant failed to make certain payments to Plaintiffs required by Defendant's collective bargaining agreement with Local 592 and the Funds' trust agreements, in a sum totaling at least $2, 738, 574.86. (Complaint [Docket Item 1], ¶ 17.) Plaintiff filed an Amended Complaint on October 21, 2014. (Amended Complaint [Docket Item 4].) Plaintiffs assert an ERISA violation under 29 U.S.C. § 1145 in Count One for failure to make contractually-required contributions, and a breach of contract claim in Count Two under 29 U.S.C. § 185. (Id. at ¶¶ 19, 23.)

         On June 8, 2015, the Court issued a memorandum opinion denying Defendant's motion to dismiss. See Cement Masons' Union Local No. 592 Pension Fund v. Almand Bros. Concrete, Inc., No. 14-5413, 2015 WL 3604747 (D.N.J. June 8, 2015). Defendant filed an Answer to Plaintiffs' Amended Complaint on June 22, 2015. (See Answer [Docket Item 16].)

         The cross-motions have been fully briefed, [9] and the Court convened oral argument on December 5, 2017.

         III. STANDARD OF REVIEW

         At summary judgment, the moving party bears the initial burden of demonstrating that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a properly supported motion for summary judgment is made, the burden shifts to the non-moving party, who must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In reviewing a motion for summary judgment, the court is required to examine the evidence in light most favorable to the non-moving party, and resolve all reasonable inferences in that party's favor. Hunt v. Cromartie, 526 U.S. 541, 552 (1999); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). Credibility determinations are not appropriate for the court to make at the summary judgment stage. Davis v. Portline Transportes Mar. Internacional, 16 F.3d 532, 536 n.3 (3d Cir. 1994).

         A factual dispute is material when it “might affect the outcome of the suit under the governing law, ” and genuine when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The non-moving party “‘need not match, item for item, each piece of evidence proffered by the movant, '” but must simply present more than a “mere scintilla” of evidence on which a jury could reasonably ...


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