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AMALGAMATED COTTON GARMENT AND ALLIED INDUSTRIES FUND v. BERNARD DION (03/22/85)

filed: March 22, 1985.

AMALGAMATED COTTON GARMENT AND ALLIED INDUSTRIES FUND
v.
BERNARD DION, APPELLANT



Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil, at No. 81-491.

COUNSEL

Stuart J. Agins, Philadelphia, for appellant.

Alan F. Markovitz, Philadelphia, for appellee.

Wieand, Montemuro and Cercone, JJ.

Author: Montemuro

[ 341 Pa. Super. Page 14]

This matter is before the court on the appeal of Bernard Dion from the lower court's order granting judgment on the pleadings in favor of appellee, Amalgamated Cotton Garment and Allied Industries Fund. The basis of the lower court's judgment was that, under the Pennsylvania Wage Payment and Collection Law (hereinafter "WPCL"),*fn1 appellant as an admitted officer of a corporation which had breached an agreement to make contributions to appellee, was individually liable for those contributions. Appellant raises two arguments in this appeal: (1) that the WPCL is preempted by federal law -- the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"),*fn2 and (2) that the WPCL cannot be construed to impose individual liability on the officer of a delinquent corporation. We find both of these arguments to be without merit.

The facts are as follows: Appellant was an officer and shareholder of Bee and Jay Sportswear, Inc. In accordance with a collective bargaining agreement, Bee and Jay Sportswear, Inc. was obligated to make weekly contributions to appellee, a multi-employer labor trust fund, which in turn was to provide fringe benefits to employees of Bee and Jay Sportswear, Inc. Bee and Jay Sportswear, Inc. breached its agreement with appellee, and failed to remit contributions in the amount of $19,474.18. As a result of this breach, an arbitration award was entered in favor of appellee and against Bee and Jay Sportswear, Inc. Unable to collect the arbitration award, appellee filed a complaint in the instant

[ 341 Pa. Super. Page 15]

    action against appellant under the WPCL. In his answer,*fn3 appellant admitted that at the time relevant to these proceedings, he had been an officer and shareholder of Bee and Jay Sportswear, Inc. Appellee moved for judgment on the pleadings on the basis that the WPCL provided that officers of a delinquent corporation could be held personally liable as "employers." The lower court agreed, and granted judgment in favor of appellee.

We first address appellant's argument that the WPCL has been preempted by ERISA. That argument is quickly laid to rest, however, since appellant failed to raise this issue in the lower court. Matters not raised below will not be considered for the first time on appeal. Commonwealth v. Natl. Federation of the Blind, 471 Pa. 529, 370 A.2d 732 (1977). Furthermore, we note that had this issue been preserved, the Third Circuit Court of Appeals has found that the WPCL is not preempted by ERISA. Carpenters Health and Welfare Fund of Phila. and Vicinity v. Kenneth R. Ambrose, Inc., 727 F.2d 279 (3d Cir. 1983).

Appellant's second argument is that the WPCL cannot be construed to impose personal liability on the officer of a delinquent corporation. Although no appellate court in Pennsylvania has addressed this issue, it has been addressed on our trial level and by federal courts. See Ward v. Whalen, 18 Pa. D & C 3d 710 (1981); Carpenters Health v. Ambrose, Inc., supra; Amalgamated Cotton Garment and Allied Industries Fund v. J.B.C. Company of Madera, Inc., 608 F.Supp. 158 (W.D.Pa. 1984); In re Johnston, 24 B.R. 685 (B.C.W.D.Pa. 1982). These cases have all held that the WPCL imposes personal liability on officers for unpaid benefit contributions.*fn4

[ 341 Pa. Super. Page 16]

Appellant's argument is far-fetched. The relevant provisions of the WPCL are: § 260.9a(b), which permits employees or a labor organization to whom any type of wages is payable, to maintain an action for recovery of such unpaid wages; and § 260.2a, which defines "wages" to include fringe benefits, and "employer" to include "every person, firm, partnership, association, corporation, receiver or other officer of a court of this Commonwealth and any ...


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