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Kelly v. W.G. Tomko

March 22, 2007

FRANK KELLY AND TODD C. RAY, AS TRUSTEES OF THE PLUMBERS AND PIPEFITTERS LOCAL NO. 520 PENSION FUND AND PLUMBERS AND PIPEFITTERS LOCAL NO. 520 ANNUITY FUND, PLAINTIFFS,
v.
W.G. TOMKO, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Jones

MEMORANDUM AND ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is Defendant W.G. Tomko Inc.'s Motion to Dismiss ("the Motion")(doc. 5) filed on November 15, 2006.

For the following reasons, the Motion (doc. 5) will be denied.

PROCEDURAL HISTORY

On October 20, 2006, Plaintiffs Frank Kelly and Todd C. Ray, as Trustees of the Plumbers and Pipefitters Local No. 520 Pension Fund and Plumbers and Pipefitters Local No. 520 Annuity Fund ("Plaintiffs") filed a complaint (doc. 1) against Defendant W.G. Tomko Inc. ("Defendant") in the United States Court for the Middle District of Pennsylvania. The action is brought pursuant to Sections 502(a)(3) and 515 of the Employee Retirement Income Security Act of 1974, as amended (29 U.S.C. § 1132(a)(3) and 1145)(hereinafter "ERISA") and the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended (38 U.S.C. § 4316)(hereinafter "USERRA").

On November 15, 2006, Defendant filed the instant Motion. The Motion has been fully briefed by the parties and is therefore ripe for our review.

STANDARD OF REVIEW

In considering a motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6), a court must accept the veracity of a plaintiff's allegations. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996), our Court of Appeals for the Third Circuit added that in considering a motion to dismiss based on a failure to state a claim argument, a court should "not inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims." Furthermore, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also District Council 47 v. Bradley, 795 F.2d3 310 (3d Cir. 1986).

FACTUAL BACKGROUND

The Defendant, a mechanical contractor, is a signatory to a Collective Bargaining Agreement ("CBA") with Local Union 520. The union receives dues from individual members and, in exchange, provides union employment and benefits to its members. Pursuant to the CBA, the Defendant is obligated to contribute to the union's Pension and Annuity Funds (collectively "Funds") for each hour worked on behalf of its employees employed pursuant to the terms of the CBA.

On and before December 30, 2004, Robert P. Schuler ("Schuler") was employed by the Defendant under the terms of the CBA. The Defendant, pursuant to the terms of the CBA, submitted contributions to the Funds on behalf of Schuler for all work performed on and before December 30, 2004. Schuler received Orders ("Activation Orders") dated December 31, 2004 from the Commonwealth of Pennsylvania, Department of Military and Veterans Affairs, the Adjutant General, ordering Schuler to active duty as a member of his Reserve Component Unit for a period not to exceed 485 days. The Activation Orders directed Schuler to report to active duty on January 4, 2005. Schuler notified the Defendant of his receipt of the Activation Orders prior to his reporting to active duty on January 4, 2005. Schuler's last day of work for Defendant prior to reporting for active duty was December 30, 2004.

On or about June 15, 2006, Schuler received Orders ("Discharge Orders") from the Department of the Army advising Schuler that he would be released from active duty effective July 8, 2006. Schuler reported back to work for the Defendant on July 10, 2006. Since July 10, 2006, Schuler has been employed by the Defendant under the terms of the CBA. Since Schuler began work on July 10, 2006, Defendant, as required by the CBA began submitted contributions to the funds.

During the period of Schuler's activation, from December 31, 2004 through July 9, 2006 ("Period of Activation"), the Defendant did not submit any contributions on Schuler's behalf to the Funds. It is the contention of Plaintiffs that pursuant to USERRA, the Defendant was required to submit contributions on ...


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