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Operating Engineers Local 66 v. Mangery & Sons of Penn

March 15, 2010

OPERATING ENGINEERS LOCAL 66, AFL-CIO AND CONSTRUCTION INDUSTRY COMBINED FUNDS, INC., AS AGENT FOR BOARD OF TRUSTEES OF OPERATING ENGINEERS LOCAL 66 ANNUITY AND SAVINGS FUND, OPERATING ENGINEERS CONSTRUCTION INDUSTRY AND MISCELLANEOUS PENSION FUND, OPERATING ENGINEERS LOCAL 66 BENEFIT FUND, OPERATING ENGINEERS LOCAL 66 WELFARE FUND, WESTERN PENNSYLVANIA OPERATING ENGINEERS JOINT APPRENTICESHIP AND TRAINING PROGRAM, PLAINTIFF,
v.
MANGERY & SONS OF PENN, INC., DEFENDANT.



The opinion of the court was delivered by: David Stewart Cercone United States District Judge

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff, Operating Engineers Local 66, AFL-CIO and Construction Industry Combined Funds, Inc. (the "Funds" or "Plaintiff"), instituted this action against Defendant, Mangery & Sons of Penn, Inc. ("Mangery" or "Defendant"), to recover fringe benefits Mangery was allegedly required to contribute to the Funds for the period from January 2005 through January 2009 under a signed collective bargaining agreement. The Funds filed a motion for summary judgment, Mangery has responded and the motion is now before the Court.

Plaintiff filed a Concise Statement of Material Facts ("Pl. CSMF") in support of its motion for summary judgment. The Local Rules of the United States District Court for the Western District of Pennsylvania require that Plaintiffs file a responsive "concise statement which responds to each numbered paragraph in the moving party's Concise Statement of Material Facts by . . . admitting or denying whether each fact contained [therein] . . . is undisputed and/or material . . . setting forth the basis for the denial if any fact . . . is not admitted in its entirety (as to whether it is undisputed or material), with appropriate reference to the record . . ." See LR 56.1(C)(1)(a) & (b). Contrary to Rule 56.1, Mangery instead filed a "Concise Statement of Facts in Opposition to Plaintiff's Motion for Summary Judgment"("Def. CSF") which neither admits nor denies facts set forth in Plaintiff's factual statement. Material facts set forth in a moving party's concise statement of material facts will be deemed admitted for the purpose of deciding the motion for summary judgment "unless specifically denied or otherwise controverted by a separate concise statement of the opposing party." See LR 56.1(E). Though it is not for the Court to sort through the entire record to determine whether stated facts are disputed, the Court will use its best efforts to reconcile the statements filed by the parties.

II. STATEMENT OF THE CASE

The Funds are employee benefit plans within the meaning of the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1002 et seq. Pl. CSMF ¶ 1. During the time period relevant to this action, Mangery was primarily engaged in the operation of a construction company in Western Pennsylvania. Pl. CSMF ¶ 2; Def. CSF ¶ 2. In October of 1999, Betty Mangery was the sole shareholder, sole director, the President, Secretary and Treasurer of Mangery. Pl. CSMF ¶ 3; Deposition of Betty Mangery, Def. CSF, Exhibit A p. 12 (hereinafter "Dep. B.Mangery").

On October 1, 1999, Betty Mangery, acting on behalf of the Defendant, signed an Area 1 Independent Building Construction Agreement (the "Agreement") with the Operating Engineers Local Union No. 66 (the "Union"). Pl. CSMF ¶ 4; Dep. B.Mangery pp. 15-16. The Agreement required that Mangery contribute certain amounts to the Funds on behalf of its employees who perform work as crane operators and oilers. Pl. CSMF ¶¶ 5 & 9. The Agreement also required that certain cranes were to be manned only by union operating engineers and oilers. Pl. CSMF ¶ 9. The Agreement contains a provision that automatically renews the Agreement annually unless written notice is given by either party to the Agreement at least ninety (90) days prior to May 31 of the last year the Agreement is in effect. Pl. CSMF ¶ 6. Further, the Agreement automatically incorporates by reference and binds Mangery to subsequent future collective bargaining agreements. Id. There is no evidence in the record that a corporate principal of Mangery ever gave notice to the Union of termination under the Agreement.

During the periods relevant to this action, Mangery employed both union and nonunion operating engineers and oilers on various construction sites who performed work covered by the Agreement. Pl. CSMF ¶¶ 13-14. The Funds' allege that from January 2005 until February 2010, Mangery has failed to pay certain benefit contributions for work performed by employees covered under the Agreement. Pl. CSMF ¶ 15. The Funds contend that Mangery is liable to the Funds for principal, liquidated damages and interest in an amount in excess of $500,000. Pl. Amended Motion for Summary Judgment ¶ 2.

III. LEGAL STANDARD FOR SUMMARY JUDGMENT

Pursuant to FED. R. CIV. P 56©, summary judgment shall be granted when there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. To support denial of summary judgment, an issue of fact in dispute must be both genuine and material, i.e., one upon which a reasonable fact finder could base a verdict for the non-moving party and one which is essential to establishing the claim. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Id. The court's consideration of the facts must be in the light most favorable to the party opposing summary judgment and all reasonable inferences from the facts must be drawn in favor of that party as well. Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177, 180 (3d Cir. 1999), Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).

When the moving party has carried its burden under Rule 56©, its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P 56(e). Further, the nonmoving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The non-moving party must respond "by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial." Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F. 3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994). Moreover, the non-moving party cannot defeat a well supported motion for summary judgment by simply reasserting unsupported factual allegations contained in his pleadings. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).

For the reasons set forth below, the Funds' motion will be granted in part and denied in part. The Funds are entitled to summary judgment with respect to whether Mangery was obligated to contribute to the Funds for the work done by operating engineers and oilers employed by Mangery. But summary judgment is not appropriate with respect to the damages sought.

IV. DISCUSSION

To recover for breach of the collective bargaining agreement, the ...


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