United States District Court, W.D. Pennsylvania
BOARD OF TRUSTEES OF CEMENT MASONS' LOCAL 526 COMBINED FUNDS, INC. Plaintiff,
R & B CONTRACTING & EXCAVATION, INC., et al., Defendants.
MEMORANDUM OPINION AND ORDER
PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE
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.
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).
April 17, 2019, Plaintiff filed the pending motion for
summary judgment against Rogers (ECF No. 51).
before the Court is the Trustees' motion for summary
judgment against Defendant Rogers, which was filed on April
17, 2019 (ECF No. 51). 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
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)
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,
Roscoe Dep. 15:14-22.)
is the owner and sole shareholder of R & B. (Roscoe Dep.
13:7-14; Amato Dep. 18:13-17.) Rogers was the individual who
signed the CBA on behalf of R & B. (Roscoe Dep.
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.)
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; Sansosti Aff. ¶ 9.)
B's delinquent contributions, with penalties and interest
total $53, 216.49. (Audit Report at 3; Kramer Aff. ¶
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.)
Court entered a consent judgment against R & B on August
8, 2018 ...