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VERNAU v. PORT VUE SUPER DOLLAR MKT.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


August 7, 1985

CHARLES E. VERNAU, SR. et al., Plaintiffs
v.
PORT VUE SUPER DOLLAR MARKET, Defendant; CHARLES E. VERNAU, SR., et al., Plaintiffs v. FRANKSTOWN FOOD-A-RAMA, INC., Defendant

The opinion of the court was delivered by: WEBER

MEMORANDUM OPINION AND ORDER

 WEBER, D.J.

 Consistent with our January 24, 1985 order, we are considering the motions in these cases together. In No. 84-1523, defendant seeks summary judgment on delinquent amounts of Fund contributions that have been paid since this lawsuit was filed. Defendant has attached copies of cancelled checks to his motion, and plaintiffs admit that defendant's accounts should be credited to this extent. We therefore will enter partial summary judgment in defendant's favor for contributions to the Fund since the filing of the complaint. We do not feel confident with the figures provided thus far, *fn1" however, so we will not include any particular amount in our ruling above. This should not be interpreted as a finding that defendant is the prevailing party for purposes of awarding attorney's fees under 29 U.S.C. § 1132(g)(1).

 Plaintiffs correctly point out that disposing of the remainder of their claims must await further proof. First, we are not satisfied that we have heard the last word on the parties' calculations of unpaid contributions. Second, the cancelled checks submitted by defendant indicate that it has not made its payments on time. Congress has been specific about court awards of interest, liquidated damages, and attorney's fees in actions for delinquent contributions. 29 U.S.C. § 1132(g). These awards may substantially affect the ultimate amount of damages. Finally, we will not now decide whether plaintiff is entitled to liquidated damages under both ERISA and the Wage Payment and Collection Law, though we recognize that the Court of Appeals for the Third Circuit has found that ERISA does not preempt the WPCL. Carpenters Health and Welfare Fund v. Kenneth R. Ambrose, Inc., 727 F.2d 279, 282 n. 5 (3d Cir. 1983).

 In 84-1528, defendant moved for summary judgment on all unpaid claims accruing more than three years prior to the filing of the complaint. Defendant failed to raise this statute of limitations argument in its Answer, but moved to file an Amended Answer on February 15, 1985, three weeks after filing the motion above. We granted the motion to amend unless plaintiffs would file a response and submit a brief. Plaintiffs submitted their brief on February 21, 1985, though they have filed nothing on the record.

 In its motion for summary judgment, defendant relies on Byrnes v. DeBolt Transfer, Inc., 741 F.2d 620 (3d Cir. 1984). Defendant should more properly have relied on Teamsters Pension Trust Fund v. John Tinney Delivery Service, Inc., 732 F.2d 319 (3d Cir. 1984). The Tinney case holds for the statute of limitations principle upon which defendant bases its motion. The Byrnes panel simply stated that it had been asked to overrule Tinney, and explained that it could not under the Court' s rules. 741 F.2d at 625. The Court in Tinney held that the three year statute of limitation under the Pennsylvania Wage Payment and Collection Law, 43 Pa. Stat. Ann. § 260.9a(g) (Purdon Supp. 1983) applied to contributions to employee benefit trusts.

 In response, plaintiffs cites Morgan v. Lehigh Valley Coal Co., 215 Pa. 443, 64 A. 663 (1906) and related cases which we find do not apply. Morgan stands for the principle that the statute of limitations is tolled when there are "mutual running accounts between the parties or between merchant and factor or servant." Id at 447. This exception for such commercial transactions could not be further from the statutorily controlled employment-related obligation we address here. Furthermore, Morgan applies the statute of limitations as it stood on March 27, 1713. Id.

 In light of Tinney and DeBolt, defendant's motion for partial summary judgment will be granted. We note that Judge Mencer took the same action in a similar case on May 12, 1985. See Vernau v. Billco Foods, Inc., Civil Action No. 84-1649.

 [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 614 F. Supp.]

 order

 In Civil Action No. 84-1523, defendant's motion for partial summary judgment is GRANTED. Defendant shall be credited for any delinquent amounts paid since the filing of this law suit.

 In Civil Action No. 84-1528, defendants' motions to amend and for partial summary judgment are GRANTED. Pursuant to the foregoing opinion plaintiff is barred from seeking any Fund contributions which were payable before June 22, 1981.

 Plaintiffs shall file their pretrial narratives on or before August 21, 1985.

 Defendants shall file their pretrial narratives on or before September 4, 1985.

 The court will conduct a pretrial conference in both cases on September 23, 1985, at 4 p.m.

19850807

© 1992-2004 VersusLaw Inc.



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