United States District Court, D. New Jersey
CEMENT MASONS' UNION LOCAL NO. 592 PENSION FUND, et al., Plaintiffs,
ALMAND BROTHERS CONCRETE, INC., Defendant.
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.
B. SIMANDLE U.S. District Judge.
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,  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].)
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.
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. (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.)
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.” (Almand Dep.
[Docket Item 44-1], 24:7-19.)
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;
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], ¶
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
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. (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 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].)
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,
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
cross-motions have been fully briefed,  and the Court
convened oral argument on December 5, 2017.
STANDARD OF REVIEW
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).
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 ...