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TEAMSTERS PENSION TRUST FUND & VICINITY v. DOMENIC

February 24, 1998

TEAMSTERS PENSION TRUST FUND OF PHILADELPHIA AND VICINITY, et al., Plaintiffs,
v.
DOMENIC CRISTINZIO, INC., et al., Defendants.



The opinion of the court was delivered by: BRODY

 Anita B. Brody, J.

 February 24, 1998

 Plaintiffs Teamsters Pension Trust Fund of Philadelphia and Vicinity and William J. Einhorn (jointly, "Pension Fund") have sued defendants Domenic Cristinzio, Inc. ("Cristinzio"), Delaware Valley Car and Truck Leasing, The Russell G. Taddei and Donald R. Taddei Building Partnership, Systems Furniture Installations, Inc. (jointly, "Control Group"), and Russell G. Taddei ("Taddei," or jointly with Cristinzio and Control Group, "defendants"), for withdrawal liability arising under the provisions of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461, as amended by the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA"), 29 U.S.C. §§ 1381-1461. *fn1" The plaintiffs have filed a motion for summary judgment; the defendants oppose the motion on a number of grounds. For the reasons stated below, I will grant the plaintiffs' motion for summary judgment.

 I. Facts

 The following facts are essentially undisputed. Plaintiff Teamsters Pension Trust Fund of Philadelphia and Vicinity is an employee pension benefit plan that provides retirement benefits to employees of contributing employers engaged in interstate commerce (Complaint, P 4; Answer, P 4). The Teamsters Pension Trust Fund is a Taft-Hartley trust fund established under 29 U.S.C. § 186(c)(5) and a multiemployer plan within the meaning of 29 U.S.C. § 1002. Plaintiff William J. Einhorn is a fiduciary of the Teamsters Pension Trust Fund within the meaning of 29 U.S.C. §§ 1002(21), 1451.

 Defendants Russell G. Taddei and Donald R. Taddei also were general partners in defendants The Russell G. Taddei and Donald R. Taddei Building Partnership and Delaware Valley Car and Truck Leasing (Rosenthal Decl. P8 and Ex. 38). Russell G. Taddei and Donald R. Taddei each owned 50% of Systems Furniture Installations, Inc. (Rosenthal Decl. P8 and Ex. 38). The Russell G. Taddei and Donald R. Taddei Building Partnership owned the building in which Domenic Cristinzio, Inc. was located and operated and Cristinzio paid rent to the building partnership (Ex. 38). Delaware Valley Car and Trucking Leasing leased trucks to Cristinzio for use in its day-to-day operations, for which it received payment from Cristinzio (Ex. 38). The defendants have stipulated that the Russell G. Taddei and Donald R. Taddei Building Partnership, Delaware Valley Car and Truck Leasing, and Systems Furniture Installations, Inc. are trades or businesses under common control with Domenic Cristinzio, Inc. so as to form a "single employer" under 29 U.S.C. § 1301(b) (Rosenthal Decl. P7 and Ex. 37). *fn2"

 Cristinzio ceased operations and stopped making payments on May 12, 1992 (Einhorn Decl. P P 4, 5, and 6 and Exs. 11-20). On August 28, 1992, the Pension Fund sent a statutory demand letter to Cristinzio stating that the Pension Fund had determined that Cristinzio withdrew from the Pension Fund and incurred withdrawal liability (Einhorn Decl.P6 and Ex. 11). On August 28, 1992, the Pension Fund also directly notified the Control Group and Russell G. Taddei of the Fund's determination that they were under common control with Cristinzio and were responsible for the payment of the withdrawal liability incurred by Cristinzio. (Einhorn Decl. P6 and Exhs. 12, 13, 14, and 15). On November 10, 1992, a revised demand for withdrawal liability was sent to Cristinzio (Einhorn Decl. at P6 and Ex. 16). Revised demand letters were sent to the Control Group and Russell G. Taddei on November 11, 1992 (Einhorn Decl. P6 and Exhs. 17, 18, 19, and 20). The revised withdrawal liability demand sought payment of unfunded vested benefits allocable to Cristinzio of $ 118,622.57, payable in nine quarterly installments of $ 15, 247.97 and a final payment of $ 1,057.46 (Einhorn Decl. P6 and Exs. 16-20). The first installment of the withdrawal liability was due on January 9, 1993 (Einhorn Decl. P6 and Exs. 16-20).

 The Pension Fund did not receive the initial payment, due on January 9, 1993, and, by letters dated February 3, 1993, the Pension Fund notified Cristinzio, the Control Group and Russell Taddei of their default and right to cure the default (Einhorn Decl. P7 and Exs. 21-25). In November 1993, Cristinzio requested a review of the withdrawal liability assessment from the Pension Fund(Einhorn Decl. P8 and Ex. 26). *fn3"

 II. Standard of Review

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. When the moving party does not bear the burden of persuasion at trial, as is the case here, its burden "may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

 Once the moving party has filed a properly supported motion, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The nonmoving party "may not rest upon the mere allegations or denials of the [nonmoving] party's pleading," id., but must support its response with affidavits, depositions, answers to interrogatories, or admissions on file. See Celotex, 477 U.S. at 324; Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990).

 To determine whether summary judgment is appropriate, I must determine whether any genuine issue of material fact exists. An issue is "material" only if the dispute "might affect the outcome of the suit under the governing law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). An issue is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence favoring the nonmoving party is "merely colorable," "not significantly probative," or amounts to only a "scintilla," summary judgment may be granted. 477 U.S. at 249-50, 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) ("When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." (footnote omitted)). Of course, "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson, 477 U.S. at 255; see also Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Moreover, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255; see also Big Apple BMW, 974 ...


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