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AMALGAMATED COTTON GARMENT & ALLIED INDUS. FUND V.

January 26, 1984

AMALGAMATED COTTON GARMENT & ALLIED INDUSTRIES FUND, Plaintiff
v.
J.B.C. COMPANY OF MADERA, INC., JOSEPH CAMPOLONG, BETTY CAMPOLONG, and DAVID CAMPOLONG, Defendants



The opinion of the court was delivered by: MANSMANN

 Plaintiff Amalgamated Cotton Garment & Allied Industries Fund (the "Fund") brought this action to recover contributions allegedly due the Fund on behalf of the employees of Campo Slacks, Inc. ("Campo Slacks") and J & E Sportswear, Inc. ("J & E Sportswear"). *fn1" The Fund seeks to recover these contributions from Defendants J.B.C. Company of Madera, Inc. ("J.B.C."), Joseph Campolong, Betty Campolong and David Campolong, all of whom are allegedly jointly and severally liable for said contributions. The case was tried before this Court non-jury. *fn2" We hereby make the following findings of fact and conclusions of law pursuant to Fed.R. Civ. P. 52(a):

 FINDINGS OF FACT

 The Fund is an "employee benefit plan" within the meaning of § 3(3) of the Employee Retirement Security Act of 1974, as amended ("ERISA"), 29 U.S.C. § 1002(3).

 J.B.C. is a Pennsylvania corporation.

 Joseph Campolong, Betty Campolong and David Campolong are officers of J.B.C. and reside in this District.

 Joseph Campolong is and was the president and sole shareholder of J.B.C. during all times pertinent to this action. Betty Campolong, wife of Joseph Campolong, is and was the secretary of J.B.C. during all times pertinent to this action. David Campolong, the son of Joseph Campolong, is and was the vice-president of J.B.C. during all times pertinent hereto. None of them, however, are or were the "alter egos" of J.B.C.

 On or about October 1, 1973, Joseph Campolong, in his capacity as president of J.B.C., Campo Slacks, J & E Sportswear and Madera Business Systems, Inc., and Betty Campolong, in her capacity as secretary of those corporations, executed Articles of Merger ("Articles") which were filed with the Pennsylvania Department of State on or about January 21, 1974.

 Under the Articles, Campo Slacks, J & E Sportswear and Madera Business Systems, Inc. merged into J.B.C., with J.B.C. being the surviving corporation. All assets and liabilities of the merging corporations were transferred or assumed by J.B.C. The employees of Campo Slacks and J & E Sportswear effectively became the employees of J.B.C.

 The Articles have remained effective to this date. Thus, Campo Slacks and J & E Sportswear have not legally existed as separate corporate entities since at least January 21, 1974. Further, the former employees of Campo Slacks and J & E Sportswear are and have been employees of J.B.C. since at least 1974.

 Nevertheless, Joseph Campolong continued to use the names of the defunct corporations, Campo Slacks and J & E Sportswear, for certain purposes. For example, during the period following the merger, Joseph Campolong executed collective bargaining agreements with the Amalgamated Clothing and Textile Workers Union (the "Union") to cover persons allegedly employed by Campo Slacks and J & E Sportswear. Pursuant to those agreements, Campo Slacks and J & E Sportswear, as the "employers," were obligated to make certain contributions to the Fund on behalf of "their" employees. Quarterly reports were prepared and sent to the Fund for these employees. Mr. Campolong signed the summary sheets which accompanied the reports.

 The reports indicate that no contributions were made to the Fund for these employees for the period April 1979 through August 21, 1981 (Campo Slacks) and for the period February 25, 1979 through August 11, 1979 (J & E Sportswear).

 The auditor for the Fund audited the "books" of J.B.C. at J.B.C.'s offices, examining records and reports supplied to him by J.B.C. His audit confirmed the delinquency already indicated by the quarterly reports. The total amount in delinquency is $70,191.12.

 In the meantime, the Fund, pursuant to the collective bargaining agreements, initiated several arbitration proceedings against Joseph Campolong and J.B.C., as "alter egos" of Campo Slacks and J & E Sportswear, to recover delinquent contributions. The arbitrator found that due notice was given to the parties for each proceeding yet neither Mr. Campolong nor J.B.C. entered an appearance at any of the arbitration hearings. *fn3"

 Joseph Campolong and J.B.C. did not move to vacate or to modify any of the arbitration awards until filing a counterclaim to this action more than a year after the fourth arbitration decision.

 Joseph Campolong and J.B.C. have failed and refused to pay the amount of the delinquency.

 The Fund brought the present action to confirm the arbitration awards pursuant to § 301 of the Labor Management Relations Act of 1947, as amended ("LMRA"), 29 U.S.C. § 185. Jurisdiction is also predicated upon ERISA and the Federal Arbitration Act, 9 U.S.C. § 1 et seq. Furthermore, the Fund seeks to hold the three individual Defendants liable pursuant to the Pennsylvania Wage Payment and Collection Law ("WPCL") 43 Pa. C.S.A. § 260 et seq. (Purdon 1964). *fn5"

 Defendants have counterclaimed to vacate the arbitration awards. In addition, at trial, the three individual Defendants orally moved for dismissal of the case against them.

 We find that Defendants are indeed jointly and severally liable for the amount of the delinquency, $70,191.12, as more fully explained in our conclusions of law.

 CONCLUSIONS OF LAW

 I. RES JUDICATA AND COLLATERAL ESTOPPEL DEFENSES

 Defendants contend that the Fund is barred from pursuing this action by the doctrines of res judicata and collateral estoppel. *fn6" According to Defendants, the claim(s) underlying this action have been litigated previously in the New York state courts, the Pennsylvania state courts and certain federal courts. *fn7"

 Under the doctrine of res judicata, a final judgment on the merits of an action precludes the parties or those in privity with the parties from relitigating issues that were or could have been raised in that action. Allen v. McCurry, 449 U.S. 90, 94, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980).

 For res judicata to apply, it is necessary that "between the previous action and the present action there (is) an identity in the thing sued on, identity of the cause of action, identity of the persons and parties to the action, and identity of the quality or capacity of the parties suing or sued." Davis v. United States Steel Supply, 688 F.2d 166, 170-71 (3d Cir. 1982), cert. denied, 460 U.S. 1014, 103 S. Ct. 1256, 75 L. Ed. 2d 484 (1983), quoting Duquesne Slag Products Co. v. Lench, 490 Pa. 102, 105, 415 A.2d 53, 55 (1980).

 Under the doctrine of collateral estoppel, a court's decision on an issue of fact or law necessary to its judgment may preclude relitigation of that issue in a suit on a different cause of action involving a party to the first case. Allen v. McCurry, supra at 94.

 The doctrine of collateral estoppel will apply when (1) the issue decided in the prior litigation is identical to the issue here, (2) the prior litigation resulted in a final judgment on the merits, (3) the party against whom the estoppel is asserted is a party, or in privity with a party, to the prior proceeding, and (4) the opportunity to present the claim in the prior proceeding was full and fair. Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 844 (3d Cir. 1974).

 The burden of establishing preclusion is placed on the party claiming the defense. 18 Wright, Miller and Cooper, FEDERAL PRACTICE AND PROCEDURE § 4405 at 38 (1981). Ordinarily, sufficient evidence must be introduced to show litigation of the claim or issue involved. Id.

 In the instant case, the defense of res judicata was at least partially resolved by the withdrawal of Campo Slacks and J & E Sportswear from this suit since the record suggests that they were the parties to almost all of the prior judgments. In our previous Opinion on Defendants' Motion to Dismiss, we stated that if the remaining Defendants wished to pursue this defense, they would be required to set forth the pertinent ...


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