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Inc. v. R & B Contracting & Excavation, Inc.

United States District Court, W.D. Pennsylvania

July 22, 2019

BOARD OF TRUSTEES OF CEMENT MASONS' LOCAL 526 COMBINED FUNDS, INC. Plaintiff,
v.
R & B CONTRACTING & EXCAVATION, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE

         Introduction

         Plaintiff, Board of Trustees of Cement Masons' Local 526 Combined Funds, Inc. (the "Trustees") brought this action under the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1100-1145 (ERISA), against Defendants, R & B Contracting & Excavation, Inc. ("R & B"), William Rogers ("Rogers"), Richard Roscoe ("Roscoe") and Daniel Amato ("Amato"). The Trustees seek certain sums of money owed by R & B to the Cement Masons' Local 526 Combined Funds (the "Funds") pursuant to a collective bargaining agreement ("CBA") for fringe benefit contributions for employees who perform classified work.

         On August 8, 2018, the Court entered an approved Consent Decree in favor of the Trustees and against R & B in the amount of $75, 886.49 (including $53, 216.49 in contributions owed with penalties and interest, $15, 225.00 in attorney's fees and $7, 445.00 in audit fees) (ECF No. 33). On March 26, 2019, the Court granted the Trustees' motion for summary judgment against Defendants Roscoe and Amato with respect to Count II of the Complaint, finding that both are liable under ERISA for breach of fiduciary duty, but denied the Trustees' motion with respect to their claim for conversion in Count III (ECF No. 47).

         On April 17, 2019, Plaintiff filed the pending motion for summary judgment against Rogers (ECF No. 51).

         Presently before the Court is the Trustees' motion for summary judgment against Defendant Rogers, which was filed on April 17, 2019 (ECF No. 51).[1] The Trustees contend that as Rogers is the sole shareholder and owner of R & B, he is an ERISA plan fiduciary who is personally liable for R & B's delinquent fringe benefits (Count II of the Complaint) and that he committed the tort of conversion (Count III). Rogers' response to the motion was due by May 13, 2019 (ECF No. 56), but no response was filed. On June 7, 2019, the case was reassigned to the undersigned and Rogers was given additional time until July 5, 2019 within which to respond (ECF No. 58). Despite having been given additional time within which to respond, Rogers - who is now proceeding pro se after his counsel was granted leave to withdraw - has failed to respond to or oppose the Trustees' motion.

         Undisputed Facts

         The Funds are ERISA multi-employer employee benefit plans consisting of a Defined Benefit Pension Plan, a Defined Contribution Pension Plan, a Welfare plan, a Supplemental Income Plan, and an Apprenticeship & Journeyman Education & Training Plan. The plans are financed through employer contributions made in accordance with applicable collective bargaining agreements. (Sansosti Aff ¶ 2)[2]

         R & B was engaged in the business of operating a construction company in Western Pennsylvania. (Sansosti Aff. ¶ 3.) R & B is a signatory to Pittsburgh Building Trades Agreement ("Collective Bargaining Agreement" or "CBA") with the Cement Masons' Union Local No. 526 of the Operative Plasters' and Cement Masons' International Association. (Sansosti Aff. ¶ 4.) Under the CBA, R & B was required to make payments into the Funds for R & B's employees who performed classified work. (Sansosti Aff. ¶ 5; CBA at 8, 10, 32, 34[3]; Roscoe Dep. 15:14-22.)

         Rogers is the owner and sole shareholder of R & B. (Roscoe Dep. 13:7-14; Amato Dep. 18:13-17.)[4] Rogers was the individual who signed the CBA on behalf of R & B. (Roscoe Dep. 15:23-16:1.)

         Rogers took an extended leave of absence from R & B, for a period of three to four years from 2014 to 2017 for health reasons. (Roscoe Dep. 19:18-20:16.) During this time period, however, Rogers still made decisions as to who would get paid and exercised control over the fringe benefits. Rogers determined when to submit fringe benefit contributions to the Funds. (Roscoe Dep. 16:13-24.)

         The CBA provides for assessment of interest, late charges/liquidated damages, and attorney's fees and costs for each month that R & B failed to timely submit payment to the Funds. (CBA at 33.) R & B failed to make payment to the Funds for classified work performed by Defendant's employees during the work months of July 2015; September 2016; April, June, July, August, and September 2017; October, November, and December 2017. (Audit Report[5]; Sansosti Aff. ¶ 9.)

         R & B's delinquent contributions, with penalties and interest total $53, 216.49. (Audit Report at 3; Kramer Aff. ¶ 5[6]; Sansosti Aff. ¶ 9.) Additionally, an additional $15, 225.00 in attorney's fees and costs and $7, 445.00 in audit fees are owing. (ECF No. 33.) The sum total owed is $75, 886.49. (Id.)

         The Court entered a consent judgment against R & B on August 8, 2018 ...


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