BRICKLAYERS AND ALLIED CRAFTWORKERS LOCAL 1 OF PA/DE et al v. WATERCONTROL SERVICES, INC. et al

Filing 8

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 7/30/12. 7/31/12 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRICKLAYERS & ALLIED
:
CRAFTWORKERS LOCAL 1 OF PA/DE, :
ET AL.
:
:
v.
:
:
WATERCONTROL SERVICES, INC.,
:
ET AL.
:

CIVIL ACTION
NO. 09-3935

SURRICK, J.

JULY 30 , 2012
MEMORANDUM

Presently before the Court is Plaintiffs’ Amended Motion for Default Judgment. (ECF
No. 6.)1 For the following reasons, Plaintiffs’ Motion will be granted.
I.

BACKGROUND
Plaintiffs brought this action against Defendants WaterControl Services, Inc.

(“WaterControl”) and Edward Creedon, alleging among other things, violations of the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001, et seq., and the National
Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151, et seq. (Compl., ECF No. 1.)2 Plaintiffs seek
1

Plaintiffs refer to the Motion as an “Amended Motion.” However, the docket does not
reflect that a prior motion for default judgment was ever filed by Plaintiffs.
2

Plaintiffs include (i) Bricklayers and Allied Craftworkers Local 1 of PA/DE (“Plaintiff
Union”), a labor organization, (ii) Bricklayers and Allied Craftworkers Local 1 of PA/DE Health
& Welfare Fund (“Health and Welfare Fund”), an employee welfare plan, (iii) Bricklayers and
Allied Craftworkers Local 1 of PA/DE Joint Apprenticeship and Training Fund (“Training
Fund”), an employee welfare plan, (iv) Bricklayers and Allied Craftworkers Local 1 of PA/DE
Vacation Fund (“Vacation Fund”), an employee welfare plan, (v) Bricklayers and Allied
Craftworkers Local 35 of PA Annuity Fund (“Local 35 Annuity Fund,” and together with the
Health and Welfare Fund, the Training Fund, the Vacation Fund, and the Local 35 Annuity Fund,
the “Plaintiff Funds”), an employee welfare plan, and (vi) Tim Sheldon, Administrative Agent
for the Plaintiff Funds. (Compl. ¶¶ 1-6.)

to recover unpaid employee benefit fund contributions, interest, liquidated damages, attorney’s
fees and costs from Defendants and to compel an audit of Defendants’ payroll. (Compl.)
Defendant WaterControl and Plaintiff Union entered into a Collective Bargaining
Agreement (“CBA”) on October 19, 2005. (Compl. ¶ 12; Certification ¶ 18, ECF No. 6;
Certification Am. Ex. E (“CBA”), ECF No. 7.)3 Defendant Creedon is the President, Chief
Executive Officer (“CEO”), and owner of WaterControl. (Compl. ¶ 8.) Creedon signed the
CBA on behalf of WaterControl. The CBA requires WaterControl, as the “Employer,” to make
employee benefit fund contributions to Plaintiff Funds. (Compl. ¶ 12.) Specifically, the CBA
obligates WaterControl “to make hourly contributions at set rates to the benefits funds for each
hour worked” by its employees. (Pls.’ Mem. 4, ECF No. 6.) WaterControl is required to remit
these contributions no later than the fifteenth day of each month. (Certification ¶ 9; see also
CBA § 5.B.1 (“Contributions shall be remitted and received . . . not later than the 15th day of the
month following the month in which the work was performed.”).) In addition, the CBA requires
WaterControl to deduct union dues and political action committee contributions from employees,
upon the employee’s authorization, and turn over such dues and contributions to Plaintiff BAC
Union on a monthly basis. (Compl. ¶ 12; Pls.’ Mem. 4.) WaterControl is also obligated under
the CBA to remit employer contribution reports no later than the fifteenth day of each month.
(Compl. ¶ 16; CBA § 5.B.1) The contribution reports advise Plaintiffs of the hours worked by
each WaterControl union employee and calculate the monthly benefit fund contributions based
upon the number of hours worked. (See Certification Ex. A.)
3

Plaintiffs attached only excerpts of the CBA to the Motion. Upon the Court’s request,
on April 12, 2012, Plaintiffs filed the entire CBA as an Amended Exhibit E to the Certification.
(See ECF No. 7.)
2

In the event that WaterControl fails to make the required benefit fund contributions when
due, the CBA provides that damages may be assessed against WaterControl. (CBA § 5.B.3.)
Damages include interest, liquidated damages, attorneys fees and costs associated with
collection. (Id.) Article 5 of the CBA states:
In the event that an Employer fails to remit contributions when due, the Employer
shall be assessed and required to pay interest at the rate of 12% per annum plus
liquidated damages in the amount of 10% of the principal amount due. In the event
that delinquent contributions are referred to an attorney for collection, the Employer
shall also be assessed and required to pay all attorney’s fees and costs of collection.
(CBA §5.B.3.)4
Plaintiffs state that Defendants failed to make timely benefit fund contributions for the
following periods of time: January 2007 through December 2007; March 2008 through
September 2008; and November 2008 through January 2011. (Certification ¶ 7.) Plaintiffs
calculate that Defendants owe interest on these delinquent contributions in the amount of
$26,623.87 (id. at ¶ 13) and liquidated damages in the amount of $165,586.27 (id. at ¶ 15).5 In
addition, Defendants have failed to make principal benefit fund contributions and remit the
required contribution reports for the period of February 2011 through April 2011. (Certification
¶ 7.) Plaintiffs claim that, in addition to the principal contributions, Defendants owe interest and
liquidated damages for this three-month period, but that such amounts are presently

4

“Employer” refers to WaterControl. The Complaint states that WaterControl is an
“employer” within the meaning of section 2(2) of the NLRA, 29 U.S.C. § 152(2) and section 3(5)
of ERISA, 29 U.S.C. § 1002(5). (Compl. ¶ 7.)
5

In the Complaint, Plaintiffs allege that delinquent contributions were made for the
following months: January 2007 through December 2007; March 2008 through September 2008;
and November 2008 through April 2009. (Compl. ¶ 14.) The Certification states that in addition
to these months, WaterControl also made delinquent Benefit Fund Payments for the months of
May 2009 through January 2011. (Certification ¶ 7.)
3

undeterminable since Defendants have failed to remit contribution reports for these months. (Id.
at ¶¶ 14, 16.) Plaintiffs also claim that Defendants owe attorney’s fees and costs as a result of
Plaintiffs having to file a lawsuit to attempt to recover the amounts owed.
The CBA also provides Plaintiffs with the right to audit WaterControl’s records.
Specifically, Plaintiffs may, “at any reasonable time, [ ] examine any and/or all records of the
Employer to establish that all payments required under the terms of this Agreement have been
paid to the respective Funds.” (CBA § 5.E.) In addition, the CBA incorporates a separate
Agreement and Declaration of Trust for each covered benefit fund. (See CBA § 5.B.4.)
Plaintiffs attach as an exhibit to the Certification an “Amendment 2 to Agreement and
Declaration of Trust” for Plaintiff BAC Health & Welfare Fund. According to Amendment 2,
owners, principals or officers of employers, such as WaterControl, are personally liable for
“breach[es] of fiduciary duties with respect to the disposition of [] contributions as assets of the
Fund.” (Certification ¶ 19 & Ex. G at ¶ 2.)6
On August 28, 2009, Plaintiffs filed a Complaint, asserting the following causes of
action: (i) breach of contract under NLRA § 301 against WaterControl (Count I); (ii) breach of
contract under ERISA § 515 against WaterControl (Count II); (iii) breach of contract under
6

Paragraph 2 of the Amendment states:

Nonpayment of contributions beyond the date on which they are due shall constitute
a breach of the Employer’s fiduciary obligations with respect to Fund assets held in
trust as set forth in Section 7.1. In any action to recover, compel and enforce the
payment of contributions as set forth in Section 7.2, the Trustees shall have the
authority and right to seek personal liability against an owner, principal, or officer of
an Employer for breach of fiduciary duties with respect to the disposition of such
contributions as assets of the Fund.
(Certification Ex. G. at ¶ 2.)
4

NLRA § 301 and breach of fiduciary duties under ERISA against Creedon (Count III); and
common law conversion against Creedon (Count IV). (Compl.) Defendants were each served
with a Summons and Complaint on September 8, 2009. (Certification ¶ 2; see also Affs. of
Service, ECF Nos. 2, 3.) The record shows that, even though Defendants were properly served
with the Complaint, they have not appeared, answered, moved or otherwise responded to the
pleading.
On October 12, 2009, Plaintiffs filed a Request for Entry of Default against both
Defendants. (ECF No. 4.) Default was entered against both Defendants by the Clerk of Court on
October 13, 2009. On May 5, 2011, Plaintiffs’ counsel sent Defendants a letter via certified and
first class mail. (Certification ¶ 11 & Ex. D.) The letter advises Defendants that interest and
liquidated damages continue to accrue on their delinquent contributions. (Certification Ex. D.)
In the letter, Plaintiff’s counsel attempts to resolve the dispute by offering to waive the liquidated
damages that had accrued ($165,586.27) on the condition that Defendants pay the outstanding
interest ($28,483,87). Defendants never responded to the letter or to counsel’s offer to settle the
matter. (Certification ¶ 11.)
On May 27, 2011, Plaintiffs filed a Motion for Default Judgment (Pls.’ Mot.), together
with a Certification of Counsel (Certification), and Memorandum of Law (Pl.’s Mem.). (ECF
No. 6.) To date, Defendants have failed to answer, plead or otherwise defend this action.
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 55(b)(2) provides that a district court may enter default

judgment against a party when default has been entered by the Clerk of Court. Fed. R. Civ. P.
55(b)(2). The entry of a default by the Clerk of Court, however, does not automatically entitle
5

the non-defaulting party to a default judgment. D’Onofrio v. Il Mattino, 430 F. Supp. 2d 431,
437 (E.D. Pa. 2006) (citing Mwani v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005); Hritz v. Woma
Corp., 732 F.2d 1178, 1180 (3d Cir. 1984)). Judgment by default is generally disfavored.
Budget Blinds, Inc. v. White, 536 F.3d 244, 258 (3d Cir. 2008). Nevertheless, the entry of default
judgment is a matter within the sound discretion of the district court. Hritz, 732 F.2d at 1180.
Courts consider three factors when determining whether to enter default judgment against a
defendant: “(1) prejudice to the plaintiff if default is denied, (2) whether the defendant appears
to have a litigable defense, and (3) whether defendant’s delay is due to culpable conduct.”
Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000). If a default judgment is entered,
“the factual allegations of the complaint, except those relating to damages, will be taken as true.”
Comdyne I, Inc. v. Corbin, Jr., 908 F.2d 1142, 1149 (3d Cir. 1999) (citing 10 C. Wright, A.
Miller & M. Kane, Federal Practice and Procedure § 2688 at 444 (2d ed. 1983)).
III.

DISCUSSION
Before deciding whether a default judgment is appropriate in this case, we must

determine whether the Complaint establishes a legitimate cause of action against each of the
Defendants. Jimenez v. Rosenbaum-Cunningham, Inc., No. 07-1066, 2010 U.S. Dist. LEXIS
31664, at *14 (E.D. Pa. Mar. 31, 2010).
A.

Liability of WaterControl

ERISA demands that employers who make contributions under a collective bargaining
agreement do so in accordance with that agreement. See 29 U.S.C. § 1145.7 Similarly, the
7

ERISA also permits the labor organization to collect from employers the delinquent
contributions, together with interest, liquidated damages, attorneys fees, costs, and any other
equitable relief that the court deems appropriate. See 29 U.S.C. § 1132(g)(2).
6

NLRA permits labor organizations to enforce the terms of collective bargaining agreements in
federal court. See 29 U.S.C. § 185. Here, the CBA requires WaterControl to make employee
benefit fund contributions to Plaintiff Funds for each hour worked by WaterControl union
employees. The CBA also requires WaterControl to submit contribution reports. Both the
employee benefit fund contributions and the contribution reports are to be remitted by the
fifteenth day of each month. If employee benefit fund contributions are delinquent, the CBA
provides that WaterControl is required to pay twelve percent per annum plus liquidated damages
in the amount of ten percent of the principal amount due. If delinquent payments are referred to
an attorney for collection, the CBA requires that WaterControl pay attorney’s fees and costs of
collection.
The facts alleged in the Complaint and Certification demonstrate that WaterControl failed
to make timely benefit fund contributions during the following time periods: January 2007
through December 2007; March 2008 through September 2008; and November 2008 through
January 2011. As a result of these delinquent payments, WaterControl is obligated under the
CBA to pay Plaintiffs accrued interest, liquidated damages, attorneys fees and costs. The record
also demonstrates that WaterControl failed to make principal benefit fund contributions and
remit contribution reports for the months of February, March and April, 2011. As a result of this
failure, WaterControl is obligated to make the principal contributions for these months and pay
the accrued interest, liquidated damages, attorneys fees and costs.
B.

Liability of Creedon

Plaintiffs also seek to hold Creedon individually liable for its alleged damages. Plaintiffs
allege that Creedon is liable as a fiduciary under ERISA and under Amendment 2 to the
7

Agreement and Declaration of Trust for BAC Health & Welfare Fund.
Amendment 2 to the Agreement and Declaration of Trust provides that “nonpayment of
contributions beyond the date on which they are due . . . constitutes a breach of the Employer’s
fiduciary obligations with respect to Fund assets.” (Certification Ex. G. at ¶ 2.) Amendment 2
further states that “Trustees shall have the authority and right to seek personal liability against an
owner, principal, or officer of an Employer for breach of fiduciary duties with respect to
disposition of such contributions as assets of the Fund.” (Id.) Plaintiffs allege that Creedon is
liable as a fiduciary under Amendment 2 on account of his role as the owner, CEO and President
of WaterControl. However, Plaintiffs do not provide a copy of any Agreement and Declaration
of Trust to which Amendment 2 allegedly applies. Moreover, Amendment 2 purports to only
amend the Agreement and Declaration of Trust with respect to Plaintiff BAC Health & Welfare
Fund. The Health & Welfare Fund is only one of the benefit funds to which Defendants make
employee benefit fund contributions. Plaintiffs have not alleged any facts, nor provided any
evidence establishing, that the Agreement and Declaration of Trust documents of other funds
were similarly amended to extend liability to Employer’s owners, principals and officers.
Creedon may still be found liable as a fiduciary under ERISA. See 29 U.S.C. § 1109(a).8
8

ERISA § 1109(a) states:

Any person who is a fiduciary with respect to a plan who breaches any of the
responsibilities, obligations, or duties imposed upon fiduciaries by this title shall be
personally liable to make good to such plan any losses to the plan resulting from each
such breach, and to restore to such plan any profits of such fiduciary which have been
made through use of assets of the plan by the fiduciary, and shall be subject to such
other equitable or remedial relief as the court may deem appropriate, including
removal of such fiduciary.
29 U.S.C. § 1109(a).
8

Under ERISA, a person is a fiduciary with respect to a plan if “he exercises any discretionary
authority or discretionary control respecting management of such plan or exercises any authority
or control respecting management or disposition of its assets.” 29 U.S.C. § 1002(21)(a)(i). A
two-part test is used to determine whether an individual is liable as a fiduciary. Teamsters
Health & Welfare Fund v. World Transp., Inc., 241 F. Supp. 2d 499, 505 (E.D. Pa. 2003); Trs. of
the Nat’l Elevator Indus. Pension, Health, Benefit, Educ., Elevator Indus. Work Pres. Funds v.
Century Elevator, Inc., No. 11-3792, 2011 U.S. Dist. LEXIS 116990, at *9 (E.D. Pa. Oct. 11,
2011). To be liable as a fiduciary under ERISA, the court must determine (1) that unpaid
contributions were “plan assets,” and (2) that the individual exercised discretionary control or
authority of such assets. Teamsters Health & Welfare Fund, 241 F. Supp. 2d at 505. The
Complaint alleges sufficient facts as to both prongs of this test.
1.

Plan Assets

“Plan Assets” are defined in the ERISA regulations as “amounts (other than union dues)
that a participant . . . pays to an employer, or amounts that a participant has withheld from his
wages by an employer, for contributions . . . to the plan, as of the earliest date on which such
contributions . . . can reasonably be segregated from the employer’s general assets.” 29 C.F.R. §
2510.3-102. WaterControl is obligated under the CBA to deduct wages at an hourly contribution
rate from its union employees. WaterControl is further obligated to make those contributions to
Plaintiff Funds. The CBA even states that these contributions constitute fund assets. (See CBA
§ 5.B.1 (“Contributions required under this Agreement shall become assets of each Fund as of
the date on which they are due.”).) Accordingly, the record supports a finding that the unpaid
contributions are plan assets. See Century Elevator, Inc., 2011 U.S. Dist. LEXIS 116990, at *10
9

(finding that unpaid contributions constituted plan assets where language in CBA stated that title
of contribution payments vested in and remained with fund trustees when contribution payments
became due).
2.

Authority or Control

The record also supports a finding that Creedon exercises discretionary authority and
control over the fund assets. The Complaint alleges that at all relevant times, Creedon served as
the President, CEO and owner of WaterControl. (Compl. ¶ 27.) In this capacity, Creedon
directed WaterControl’s financial operations and oversaw its business activities. (Id.) The
Complaint further alleges that Creedon exercised power and control over the day-to-day financial
and business affairs of WaterControl, including the issuance of payroll checks to employees, the
deduction of dues and the distribution of portions of employees’ compensation to Plaintiff Funds.
(Id. at ¶ 28.) Creedon signed the CBA on behalf of WaterControl. He often signed the monthly
contribution reports submitted to Plaintiffs. (See Certification Ex. A.) It is alleged that Creedon
failed to make benefit fund contributions to Plaintiffs and failed to make other contributions in a
timely manner. (Compl. ¶ 29.) In doing so, Creedon “wrongfully deducted Union dues and other
contributions to be held in trust for [Plaintiffs] and converted them to the improper use of the
company.” (Id.)
Based on the foregoing, it is clear that Creedon exercised authority and control over
disposition of the fund assets. See Trs. of the Nat’l Elevator Indus. Pension, Health Benefit,
Educ., Elevator Indus. Work Pres. Funds, Elevator Constructors Annuity & 401 Ret. Plan v.
Gateway Elevator, Inc., No. 09-4206, 2011 U.S. Dist. LEXIS 65719, at *17-19 (E.D. Pa. June
21, 2011) (finding that the defendant exercised discretionary authority and control over plan
10

assets where he was responsible for authorizing contribution payments, signed checks, was the
president, sole board member, and owner of the employer, and was the signatory of the CBA);
Century Elevator, Inc., 2011 U.S. Dist. LEXIS 116990, at *12 (finding that defendant exercised
authority and control over employer where he was the president, owner and officer of employer,
signed the CBA, exercised control over payroll, determined the amount of monthly contributions,
and failed to remit certain monthly contributions).
Accordingly, we find that Creedon is a fiduciary under ERISA and breached his duties to
Plaintiffs by failing to make timely benefit fund contributions.
C.

Default Judgment

Having determined that the Complaint establishes a legitimate cause of action against
each of the Defendants, we next consider whether entering default judgment is appropriate. An
entry of default under Rule 55(a) of the Federal Rules of Civil Procedure must precede an entry
of default judgment under Rule 55(b)(2). Nationwide Mut. Ins. Co. v. Starlight Ballroom Dance
Club, Inc., 175 F. App’x 519, 521 n.1 (3d Cir. 2006). Defaults against WaterControl and
Creedon were properly entered by the Clerk of Court on October 13, 2009. As noted above,
courts generally consider three factors in determining whether entry of default judgment is
appropriate: (i) prejudice to plaintiff if default is denied; (ii) whether defendant has a meritorious
defense; and (iii) whether defendant’s conduct is culpable. Chamberlain, 210 F.3d at 164.
We are satisfied that entry of default judgement against WaterControl and Creedon is
warranted. The factors clearly weigh in favor of granting default judgement against both
Defendants. First, there is a risk of prejudice to the beneficiaries of Plaintiff Funds if
Defendants’ contributions are not made, or not made on a timely basis. This action has been
11

pending for almost three years. Plaintiffs have not received benefit fund contributions for the
months of February, March and April, 2011. Plaintiffs have suffered, and will continue to suffer
prejudice in the form of economic loss as a result of this lost investment income. On this basis,
we conclude that Plaintiffs will suffer prejudice if the requested default judgment is denied. See
Carpenter Health & Welfare Fund of Phila. v. Naglak Design, No. 94-2829, 1995 U.S. Dist.
LEXIS 566, at *8 (E.D. Pa. Jan. 18, 1995) (finding that plaintiffs will be prejudiced without entry
of default judgment since employer’s failure to make fund contributions caused adverse impact
and economic loss to funds).
Second, Defendants have not asserted any litigable defense, either by answering the
Complaint or filing a response to the instant Motion. See Kauffman v. Specialty Flooring Sys.,
Inc., No. 11-1746, 2012 U.S. Dist. LEXIS 1644, at *7 (M.D. Pa. Jan. 6, 2012) (finding that
factors weigh in favor of entering default where defendant fails to assert any defense); Trs. of the
Nat’l Elevator Indus. Pension Plan v. Universal Elevator Corp., No. 11-3381, 2011 U.S. Dist.
LEXIS 127613, at *7 (E.D. Pa. Nov. 3, 2011) (interpreting “Defendants’ silence as proof that
they have no litigable defense”). Third, Defendants’ delay in participating in this litigation is
without explanation. The record shows that Defendants were duly served with the Complaint
almost three years ago. Plaintiffs repeatedly put Defendants on notice of their delinquent benefit
fund contributions, including the accrued interest and liquidated damages for which they were
liable under the CBA. In addition, Plaintiffs’ counsel sent Defendants a certified letter, notifying
them of the outstanding amounts due and offering to settle. Despite being served with the
pleadings and repeatedly being put on notice, Defendants have wholly ignored this litigation and
have not appeared or responded to Plaintiffs’ allegations in any fashion. We are compelled to
12

conclude that Defendants’ conduct is culpable. See Kauffman, 2012 U.S. Dist. LEXIS 1644, at
*7 (finding defendant’s conduct culpable where it “neither engaged in the litigation process nor
offered any reasons for its failure to appear”).
Based on the foregoing, we conclude that entry of a default judgment against
WaterControl and Creedon is appropriate.
D.

Damages

We must next determine whether the amount of damages requested by Plaintiffs is
sufficiently alleged. While default judgment establishes the defaulting party’s liability for the
allegations in the complaint, it “does not establish liability for the amount of damages claimed by
the plaintiff.” Local No. 1, Int’l Union of Elevator Constructors v. Lift-Tech Elevator Serv.,
LLC, No. 08-6248, 2009 U.S. Dist. LEXIS 62442, at *3 (D.N.J. July 21, 2009). “The district
court must instead conduct an inquiry in order to ascertain the amount of damages with
reasonable certainty.” Credit Lyonnais Secs. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir.
1999).
Plaintiffs request the total amount of $194,327.64, which includes the following items.
Plaintiffs request $26,623.87 for interest on delinquent benefit fund contributions for the months
of January 2007 through December 2007, March 2008 through September 2008 and November
2008 through January 2011. Plaintiffs request an amount of $165,586.27, which represents
liquidated damages for these months. Plaintiffs submit detailed spreadsheets summarizing the
monthly contribution reports and itemizing calculations of interest and liquidated damages for
the untimely benefit fund contributions. (See Certification Exs. B, C.) We find that Plaintiffs
have offered sufficient proof that the amounts requested are properly recoverable. And Plaintiffs
13

request reimbursement of attorney’s fees in the amount of $1,697.50 and costs in the amount of
$420.00. Attached to the Certification is a detailed description of the time expended by
Plaintiffs’ counsel, Elissa B. Katz, Esquire, related to her efforts to recover amounts owed to
Plaintiffs under the CBA. (Certification ¶ 20 & Ex. H.) Counsel has spent a total of 9.7 hours in
connection with this matter, including telephone calls, legal research, document review,
correspondence and drafting of pleadings. (Id.) Counsel charges a rate of $175.00 per hour. (Id.
at ¶ 21.) We find the amount of hours expended (9.7) and the rate to be reasonable. See, e.g.,
Gusler v. Commercial Spray Installations, No. 11-2039, 2012 U.S. Dist. LEXIS 8199, at *9
(E.D. Pa. Jan. 23, 2012) (approving rate of $210 per hour for work performed in seeking default
judgment against employer for unpaid employee benefit plan contributions). Also attached to the
Certification are invoices and receipts representing the costs for filing and serving the Complaint.
(Certification ¶ 22 & Ex. I.) These costs are also recoverable by Plaintiffs.
For the period of February 2011 through April 2011, Plaintiffs request judgment in an
amount to be later determined. Since Defendants have failed to remit monthly contribution
reports for these months, the principal amount and damages owed by Defendants is not
ascertainable. Accordingly, we will order Defendants to remit both the principal amounts owed
and monthly contribution reports for these months. Plaintiffs may thereafter calculate the interest
and liquidated damages owed for these months and seek payment of these amounts from
Defendant.
Finally, we will permit an authorized representative of Plaintiffs to access WaterControl’s
payroll records in order to conduct an audit and accounting and determine whether there are
additional benefit fund contribution amounts due and owing. The CBA explicitly provides for
14

Plaintiffs’ right to audit WaterControl’s payroll records. (See CBA § 5.E. (“The Board of
trustees, or their authorized agents, shall have the right, at any reasonable time, to examine any
and/or all records of the Employer to establish that all payments required under the terms of this
Agreement have been paid to the respective Funds.”).)
We are satisfied that Plaintiffs have sufficiently supported their claim and that the
categories of damages are properly alleged and recoverable under the CBA.9 Accordingly,
judgment will be entered against Defendants jointly and severally in the amount of $194,327.64.
IV.

CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Default Judgment is granted.
An appropriate Order follows.
BY THE COURT:

R. BARCLAY SURRICK, J.

9

Some of the damages requested by Plaintiffs represent unpaid benefit fund
contributions, interest and liquidated damages that were incurred after the Complaint was filed.
Plaintiffs “may still seek interest and liquidated damages associated with contributions untimely
remitted after the commencement of a lawsuit.” Trs. of the Nat’l Elevator Indus. Pension,
Health Benefit & Educ. Funds v. Lutyk, 140 F. Supp. 2d 447, 456 (E.D. Pa. 2001); see also
Carpenters Health & Welfare Fund of Phila. & Vicinity v. Building Tech, Inc., 747 F. Supp. 288,
296-97 (E.D. Pa. 1990) (allowing plaintiffs to recover interest and liquidated damages for
delinquent contributions that became due after the complaint was filed).
15