EINHORN v. APEX EQUIPMENT COMPANY et al
MEMORANDUM AND OPINION. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 8/26/14. 8/26/14 ENTERED & E-MAILED.(fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WILLIAM J. EINHORN
APEX EQUIPMENT COMPANY, et al.
TEAMSTERS PENSION FUND, et al.
MURWIN PROPERTY MANAGEMENT,
LP, et al.
MEMORANDUM RE DEFENDANTS’ MOTION TO DISMISS
August 26, 2014
This case arises under the Multiemployer Pension Plan Amendments Act of 1980
(“MPPAA”), 29 U.S.C. § 1381 et seq. Plaintiff William Einhorn, acting as administrator of the
Teamsters Pension Trust Fund of Philadelphia and Vicinity (the “Fund”), has sued Defendants. 1
In Count I of the Second Amended Complaint (the “Complaint”), Plaintiff seeks $2,775,803.89
in withdrawal liability from Apex Equipment Company (“Apex”). In Count II, Plaintiff seeks
withdrawal liability from Allied Concrete & Supply Corp. (“Allied Concrete”), Construction
Equipment Maintenance Company (“CEM”), DRE Corp., and Murwin Property Management,
LP (“Murwin Property”) (collectively, the “Murwin Companies”) 2 because these five companies
are allegedly trades and businesses under common control with Apex. Count III claims that the
Defendants are Apex Equipment Company; Allied Concrete & Supply Corp.; Murwin Property
Management, LP; DRE Corp.; Construction Equipment Maintenance Corp.; Allied Landscape and Contractor
Supply Company; Murwin Construction Systems, Inc.; Allied Recycling Company; William Murwin Jr.; William
Murwin III; James Murwin; Kellie L. Lavery; Joshua Gordon; Estate of Thad R. Murwin; and William C. Roeger Jr.
There are additional companies owned by the Murwins that are named parties in this suit. Those
companies are not relevant to this Motion.
named corporate defendants violated the MPPAA for failing to produce information required
under 29 U.S.C. § 1399(a) regarding the collection of withdrawal liability. In Count IV, Plaintiff
has sued the Estate of Thad Murwin, among others, for engaging in transactions with the purpose
of avoiding or evading withdrawal liability owed to the Fund. Count V is a request for a remedy,
not a claim for relief, to wit that any money transferred in transactions intended to evade or avoid
withdrawal liability be placed in a constructive trust.
The Estate now moves the Court to dismiss Count IV of the Complaint in as much as it
relates to the Estate for failure to state a claim upon which relief may be granted.
In order to properly frame the facts alleged in the Complaint—which rely on concepts
like “common control” and “withdrawal liability” that are unique to the MPPAA—a brief
introduction to the statute is required.
The MPPAA amended the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001 et seq. As the Third Circuit succinctly described,
The MPPAA was enacted out of a concern that ERISA did not adequately protect
multiemployer pension plans from the adverse consequences that result when
individual employers terminate their participation or withdraw. The amendments
to ERISA were designed to prevent employers from withdrawing from a
multiemployer pension plan without paying their share of unfunded, vested
benefit liability, thereby threatening the solvency of such plans.
Congress recognized that multiemployer pension plans affected millions of
Americans and found that withdrawals of contributing employers from a
multiemployer pension plan frequently result in substantially increased funding
obligations for employers who continue to contribute to the plan, its participants
and beneficiaries, and labor-management relations. It intended for the MPPAA to
uniformly impose withdrawal liability and to relieve the funding burden on
remaining employers and to eliminate the incentive to pull out of a plan which
would result if liability were imposed only on a mass withdrawal by all
employers. To solve this problem, the MPPAA requires that a withdrawing
employer pay its share of the plan's unfunded liability. This insures that the
financial burden will not be shifted to the remaining employers.
SUPERVALU, Inc. v. Bd. of Trustees of Sw. Pennsylvania & W. Maryland Area Teamsters &
Employers Pension Fund, 500 F.3d 334, 336-37 (3d Cir. 2007) (internal quotation marks and
29 U.S.C. § 1381(a) provides that an employer that effects a “complete withdrawal” from
a multiemployer pension plan is liable for its share of a plan’s unfunded vested benefits. The
MPPAA extends responsibility for payment of withdrawal liability beyond the withdrawing
employer to “trades or businesses (whether or not incorporated) which are under common
control” with the withdrawing employer. 29 U.S.C. § 1301(b)(1). A plan is entitled to collect
withdrawal liability from any trade or business under common control with the withdrawing
organization. Additionally, the MPPAA requires a court to negate any transaction if a principal
purpose of that transaction is to evade or avoid withdrawal liability. 29 U.S.C. § 1392(c).
The Murwin Companies
Apex was party to a series of collective bargaining agreements with Teamsters Local
Union No. 384 under which Apex was obligated to make contributions to the Fund. The Fund is
an “employee pension benefit plan” and a “multiemployer plan” within the meaning of ERISA
and the MPPAA, respectively. 4
Prior to September 1, 2009, Thad Murwin and William Murwin Jr. each owned 49.97%
of Apex. William Murwin III owned the remaining 0.06%. These three individuals had identical
These factual allegations are taken from the Second Amended Complaint. They are presumed true for
the purpose of evaluating Defendant’s Motion to Dismiss. Phillips v. Cnty. Of Allegheny, 515 F.3d 224, 228 (3d
Although this is a legal conclusion, and thus not entitled to be presumed true for the purpose of this
Motion, the Court will treat it as true because the parties do not contest that ERISA controls.
ownership interests in another company called Allied Concrete. Additionally, Thad Murwin and
Wm. Murwin Jr.
William Murwin Jr. each had a 50% ownership interest in CEM and DRE. They also each had a
49.5% ownership interest in Murwin Property, with DRE holding the remaining 1%. For
reference, the ownership interests in the Murwin Companies are summarized as follows:
Ownership Interests in the Murwin Companies Prior to September 1, 2009
Thad Murwin’s Death
On September 1, 2009, Thad Murwin died. The Estate assumed his interest in the
Murwin Companies. The Bucks County Orphans Court approved Defendant William C.
Roeger’s appointment as Executor of the Estate on September 25, 2009.
On February 19, 2010, Roeger, acting as administrator of the Estate, entered into an
agreement in which Allied Concrete, Apex, and CEM purchased the Estate’s ownership interests
in these companies. ECF 57 ¶ 81. The Estate retained its ownership interest in DRE and
Murwin Property. ECF 57 ¶ 82. However, minutes of a Board of Directors meeting for DRE
held on December 31, 2009 indicate that DRE agreed to repurchase its shares from the Estate.
ECF 57 ¶ 65. This transfer was not effected until after Apex withdrew from the Fund nearly two
years later. ECF 57 ¶ 64.
According to the Complaint, after Thad Murwin’s death, Apex, Allied Concrete, Murwin
Property, DRE, and CEM were under common control. ECF 57 ¶ 81. However, these
companies ceased being under common control after Roeger agreed to have Apex, Allied
Concrete, and CEM repurchase their respective shares from the Estate. ECF 57 ¶ 81.
On November 1, 2011, Apex ceased contributing to the Fund and effected a complete
withdrawal from it. The ownership interests for the Murwin Companies on the date of Apex’s
complete withdrawal from the Fund are as follows:
Ownership Interests in the Murwin Companies on November 1, 2011
Activity After Apex’s Complete Withdrawal
According to the Complaint, the Estate retained its interest in DRE and Murwin Property
until after Apex withdrew from the Fund on November 1, 2011 as part of a scheme to divest the
Murwin Companies of their assets, breakup common control of the companies, and otherwise
avoid the withdrawal liability owed to the Fund.
The Complaint alleges a handful of instances to describe this scheme. On December 14,
2012, Murwin Jr. sold 15% of his 49.5% interest in Murwin Property to American Lease
Management Co. He then used the proceeds from that transaction to purchase the Estate’s
interest in Murwin Property and gifted that interest to his children, William Murwin III, James
Murwin, and Kellie Lavery. Murwin Jr. gave these gifts to his three children in an attempt to
dilute ownership in Murwin Property and thereby render it no longer under common control with
the other Murwin Companies. ECF 57 at ¶¶ 85-86
On February 13, 2012, Allied Concrete sold 2.54 acres of land to Allied Recycling for $1.
The fair market value of the property was $321,261.60 at the time of sale. The Complaint
alleges that a principal purpose of this transaction was to evade or avoid using the value of the
land to pay the withdrawal liability owed by Apex. ECF 57 ¶¶ 78-79.
Finally, DRE’s shareholder agreement required Roeger to notify DRE of Thad Murwin’s
death, at which point DRE had a 90-day period to elect to purchase Thad Murwin’s shares. If the
corporation declined, the other shareholder, Murwin Jr., would have a 15-day period to elect to
purchase Thad Murwin’s interest. ECF 57 ¶ 63. According to the minutes of a Board of
Directors meeting on December 31, 2009, DRE elected to repurchase Thad Murwin’s shares of
DRE. ECF 57 ¶ 65. Although Thad Murwin died on September 1, 2009, and the Board meeting
occurred on December 31, 2009, the Estate retained Thad Murwin’s interest in DRE well into
2012—until after Apex withdrew from the Fund. ECF 57 ¶ 64. According to the Complaint,
had Roeger complied with the DRE shareholder agreement, Murwin Jr. would have become the
sole shareholder of DRE, which would have place DRE and Murwin Property under common
control with the other Murwin Companies and thus subject to withdrawal liability. ECF 57 ¶ 83.
Plaintiff filed this suit on September 19, 2013. ECF 1. An Amended Complaint was filed
on April 21, 2014. ECF 27. The Estate moved to dismiss the complaint on virtually identical
grounds as its present motion. ECF 36. A hearing was held on June 25, 2014 to address the
arguments raised in the Estate’s motion to dismiss briefing. ECF 56. At the hearing, the Court
permitted Plaintiff to amend its complaint once again to clarify and cure any deficiencies that
had been brought to light at the hearing. Plaintiff filed a Second Amended Complaint on July
11, 2014. ECF 57. In it, Plaintiff seeks the following relief with regards to the Estate: (1) an
order directing the Estate to render an accounting of all assets withdrawn from the Murwin
Companies that should have been used to pay Apex’s withdrawal liability and (2) liquidated
damages. 5 ECF 57at 22.
The Estate then filed a Motion to Dismiss. ECF 58.
Standard of Review
In its review of a motion to dismiss pursuant to Federal Rule of Civil Prodecure 12(b)(6),
the Court must “accept all factual allegations as true and construe the complaint in the light most
favorable to the plaintiff.” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.2008)
(quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir.2002)). The factual
allegations in the complaint must present a plausible basis for relief. Ashcroft v. Iqbal, 556 U.S.
662, 680 (2009). The Court will not assume as true legal conclusions couched as factual
allegations or “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements.” Id. at 664.
As briefly outlined above, the MPPAA requires employers who effect a complete
withdrawal from a multiemployer pension plan to pay their portion of unfunded, vested benefits
of that plan. A complete withdrawal occurs when an employer “(1) permanently ceases to have
an obligation to contribute under the plan or (2) permanently ceases all covered operations under
the plan.” 29 U.S.C. § 1383(a). “[T]he date of complete withdrawal is the date of the cessation
of the obligation to contribute or the cessation of covered operations.” Id. § 1383(e). “All
covered operations” has been construed to mean “the substantial cessation of normal business
activity.” Crown v. Cork & Seal Co. v. Cent. States Se. & Sw. Areas Pension Fund, 982 F.2d
857, 865-66 (3d Cir. 1992). According to the Complaint, Apex effected a complete withdrawal
The Complaint does not allege any facts indicating why Plaintiff is entitled to liquidated damages.
on November 1, 2011.
The MPPAA enables a fund to collect withdrawal liability from any trade or business
under common control with the withdrawing organization. The Department of Treasury has
issued regulations that define the term “trades or businesses under common control” to include a
“brother-sister group of trades or businesses under common control.” 26 C.F.R. § 1.414(c)–2(a).
A brother-sister group under common control exists if
(i) the same five or fewer persons who are individuals, estates, or trusts own . . . a
controlling interest in each organization, and (ii) taking into account the
ownership of each such person only to the extent such ownership is identical with
respect to each such organization, such persons are in effective control of each
organization. The five or fewer persons whose ownership is considered for
purposes of the controlling interest requirement for each organization must be the
same persons whose ownership is considered for purposes of the effective control
Id. § 1.414(c)–2(c).
The definitions of “controlling interest” and “effective control” vary based on the type of
organization at issue. Apex, Allied Concrete, DRE, and CEM are all corporations. Murwin
Property is a limited partnership.
In the case of an organization which is a corporation, a “controlling interest” means
“ownership of stock possessing at least 80 percent of total combined voting power of all classes
of stock entitled to vote of such corporation or at least 80 percent of the total value of shares of
all classes of stock of such corporation.” Id. § 1.414(c)–2(b)(2)(i)(A). In the case of an
organization which is a partnership, a “controlling interest” means “ownership of at least 80
percent of the profits interest or capital interest of such partnership.” Id. § 1.414(c)–
In the case of an organization which is a corporation, persons are in “effective control” if
“such persons own stock possessing more than 50 percent of the total combined voting power of
all classes of stock entitled to vote or more than 50 percent of the total value of shares of all
classes of stuck of such corporation.” Id. § 1.414(c)–2(c)(2)(i). In the case of an organization
which is a partnership, persons are in “effective control” if “such persons own an aggregate of
more than 50 percent of the profits interest or capital interest of such partnership.” Id. §
Evading or Avoiding Withdrawal Liability
29 U.S.C. § 1392(c) provides that if “a principal purpose of any transaction is to evade or
avoid liability under this part, this part shall be applied (and liability shall be determined and
collected) without regard to such transaction.” This provision prevents organizations subject to
withdrawal liability from diverting or diluting their assets to avoid liability imposed by the
MPPAA. “The instruction requires courts to put the parties in the same situation as if the
offending transaction never occurred; that is, to erase the transaction.” Sun Capital Partners III,
LP v. New England Teamsters & Trucking Indus. Pension Fund, 724 F.3d 129, 149 (1st Cir.
Positions of the Parties
The Estate’s Motion rests on four arguments. First, the Estate is not a trade or business
under common control with the Apex, the withdrawing company, and therefore it cannot be held
liable for Apex’s withdrawal liability. Second, because Thad Murwin did not incur personal
liability when Apex effected a complete withdrawal, the Estate is likewise not personally liable
for Apex’s withdrawal liability. Third, the Murwin Companies were never under common
control, and therefore no action by the Estate relating to the other Murwin Companies would
have changed the fact that they did not owe any withdrawal liability incurred by Apex. Fourth,
even if Plaintiff’s theory is true, and the Estate attempted to engage in transactions intended to
evade withdrawal liability, the appropriate remedy is to disregard those transactions, not make
the Estate itself liable. ECF 58 at 3-4.
Plaintiff argues, by reference to its Memorandum of Law in Opposition to the Motion to
Dismiss the Amended Complaint, ECF 43, that regardless of the Estate’s status as a trade or
business it can still be held jointly and severally liable for Apex’s withdrawal liability and all
other remedies available under 29 U.S.C. § 1132(g). ECF 60 at 4. Plaintiff also argues, by
reference to its Sur-Reply in Opposition to the Motion to Dismiss the Amended Complaint, ECF
51, that the Murwin Companies were under common control prior to Thad Murwin’s death. ECF
60 at 4.
Common Control and Evading Withdrawal Liability
The threshold issue in this case is whether and when the Murwin Companies were under
common control. The Estate claims that the five Murwin Companies were never under common
control, ECF 58-2 at 9; Plaintiff alleges that the five Murwin Companies were under common
control until Roeger authorized the repurchase of shares by Apex, Allied Concrete, and CEM,
but did nothing regarding the Estate’s shares of DRE and Murwin Property, ECF 57 ¶ 81. The
Complaint alleges that had Roeger completed this transfer with DRE all five Murwin Companies
would have been under common control at the time of Apex’s withdrawal. Put another way,
when coupled with the delayed buyback of DRE’s shares, the share repurchases with Apex,
Allied Concrete, and CEM were transactions intended to avoid withdrawal liability because they
resulted in the Murwin Companies no longer being under common control.
In order to assess whether these allegations state a claim, the Court must determine if the
Complaint alleges that the Murwin Companies were under common control at the time of Thad
Murwin’s death, but before the repurchase on February 19, 2010.
Ownership Interests in the Murwin Companies After September 1, 2009 But Before
Wm. Murwin Jr.
February 19, 2010
If five or fewer persons (or estates) own a controlling interest and exercise effective control of
the Murwin Companies, then those companies are under common control. In order to own a
controlling interest, five or fewer persons would have to own more than 80% of the shares or
interest in each Murwin Company. Because the Estate and Murwin Jr. owned over 80% of each
of the Murwin Companies between September 1, 2009 and February 19, 2010, together they
exercised a controlling interest in the company. In order to exercise effective control, Murwin
Jr.’s lowest interest common to all five companies when added with the Estate’s lowest interest
common to all five companies must be greater than 50%. Murwin Jr.’s lowest interest across all
five companies is 49.5%, and the Estate’s lowest interest across all five companies is 49.5%.
The sum of these interests is greater than 50% and thus constitutes effective control. Thus, from
September 1, 2009 to February 19, 2010 the Murwin Companies were trades or businesses under
Next, the Court must determine whether the Complaint alleges that the Apex, Allied
Concrete, and CEM stock repurchases, combined with the delayed execution of the DRE stock
repurchase, caused the Murwin Companies to no longer be under common control at the time
Apex effected a complete withdrawal from the Fund.
Ownership Interests in the Murwin Companies After February 19, 2010 through
November 1, 2011
Because Murwin Jr. owned over 80% of Apex, Allied Concrete, and CEM, he had a controlling
interest in them. Because his lowest interest common to all three was 99.88%, he also exercised
effective control over them. Thus, Apex, Allied Concrete, and DEM were under common
control when Apex withdrew from the Fund. However, Murwin Property and DRE were not
under common control. Although Murwin Jr. and the Estate exercised a controlling interest in
Murwin Property and DRE—a combined 99% and 100%, respectively—because the Estate no
longer had an ownership interest in Apex, Allied Concrete, or CEM, its shares could not be
considered when calculating effective control. This is so because when calculating effective
control “ownership of each such person [shall be counted] only to the extent such ownership is
identical with respect to each such organization,” 26 C.F.R. § 1.414(c)–2(c). Accordingly,
because the Estate did not have any ownership interest in Apex, Allied Concrete, and CEM, its
ownership interest cannot be counted when calculating effective control for Murwin Property
and DRE. Looking to Murwin Jr.’s interest alone, the lowest identical interest across all five
companies is 49.5%, which is not greater than 50%. 6 Therefore, Murwin Property and DRE
It is possible to argue that, because Murwin Jr. owned 50% of DRE and DRE owned 1% of Murwin
Property, then DRE’s share of Murwin Property should be attributed to Murwin Jr. If this were the case, Murwin
Jr.’s share of DRE’s interest in Murwin Property, to wit 0.5%, would be added to Murwin Jr.’s direct interest in
Murwin Property for a total of a 50% ownership interest. This attribution is immaterial because the lowest common
ownership interest across all five companies would still only be 50%, which is not greater than 50%, as required by
the regulations defining effective control. See 26 C.F.R. § 1.414(c)–2(c)(2)
were not under common control with the other three Murwin Companies after the share
repurchases and up through when Apex withdrew from the Fund. 7
These computations, based on allegations made in the Complaint, demonstrate that but
for the share repurchase transactions with Apex, Allied Concrete, and CEM—or, put another
way, the delayed share repurchase with DRE—all five Murwin Companies would have been
under common control at the time Apex withdrew from the Fund. The Complaint has also
alleged that the Murwin Companies and their owners were aware of their exposure to withdrawal
liability as early as September 26, 2007, when Murwin Jr. sent a letter to the Fund requesting an
estimate of Apex’s withdrawal liability. ECF 57 ¶¶ 43-44. Finally, the Complaint has alleged
that DRE had 90-days to exercise its option to repurchase the Estate’s shares of DRE, that DRE
exercised that option within the 90-day period on December 31, 2009, but that the repurchase
was not effected until after November 1, 2011, when Apex withdrew from the Fund. Taken
together, and viewed in the light most favorable to Plaintiff, the Complaint has sufficiently
alleged that these transactions were conducted with a principal purpose to evade or avoid
The Estate’s Exposure to Withdrawal Liability
Plaintiff next argues that the Estate is jointly and severally liable for Apex’s withdrawal
liability because it engaged in transactions to evade or avoid withdrawal liability through Roeger,
its administrator. As an initial matter, the Complaint does not allege that the Estate is jointly and
severally liable nor does it seek in its prayer for relief that the Estate pay the withdrawal liability.
In its briefing, however, Plaintiff claims that by participating in a transaction to evade or avoid
By the same token, had the DRE repurchase gone through before November 1, 2011 then DRE and
Murwin Property would have resumed being under common control with the other Murwin Companies—that is,
Murwin Jr. would have owned 100% of DRE. DRE’s interest therefore would thus have been attributable to
Murwin Jr.’s interest, which would have given Murwin Jr. effective control of Murwin Property, to wit 50.5%.
withdrawal liability the Estate becomes jointly and severally liable with Apex. This is not so.
The cases that Plaintiff cites stand for a different proposition entirely: the Fund can
recover from parties that have received assets as a result of a liability-evading transaction, even if
those parties were not organizations under common control with the withdrawing organization.
See IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir. 1993) (“Those assets
must therefore be recoverable from the parties to whom they have been illegitimately
transferred.”); Einhorn v. Twentieth Century Refuse Removal Co., Case No. 11-1451, 2011 WL
6779760, at *4 (D.N.J. Dec. 22, 2011) (“[E]very other court to have considered the issue has
recognized that, to give meaning to § 1392(c), a fund must be able to pursue the transferred
assets from the transferee as well as the employer/transferor.” (emphasis added)); Cent. States,
Se. & Sw. Areas Pension Fund v. Denny, 250 F. Supp. 2d 948, 953 (N.D. Ill. 2003) (“In such
cases, a plaintiff can reach those assets that were transferred in order to evade or avoid liability,
as well as the parties to whom they were improperly transferred.” (internal quotation marks and
alterations omitted) (emphasis added)); Connors v. Marontha Coal Co., Inc., 670 F. Supp. 45, 47
(D.D.C. 1987) (“Count IV can properly only seek recovery of assets actually transferred to
Moore and Fields personally, with the intent to evade or avoid withdrawal liability.” (emphasis
added)). Finally, Plaintiff’s citation to Unite Nat. Ret. Fund v. Rosal Sportswear, Inc., Case. No.
07–0773, 2009 WL 3241660 (E.D. Pa., Oct. 1, 2009) is also inapposite. That case involved a
denial of summary judgment without reaching the question, answered in Hermman, whether the
assets transferred to a third party were recoverable, because it was not clear as a matter of law
that those transactions were done with a principal purpose to evade withdrawal liability. Id. at
*7. Plaintiff has therefore cited no support suggesting joint and several liability, and the Court
will not recognize such an extension of the law here.
The remedy for transactions with a principal purpose to evade or avoid withdrawal
liability is to apply the MPPAA without regard to the offending transaction, or, in other words, to
treat the offending transaction as if it did not occur. 29 U.S.C. § 1392(c). Thus, the statute
commands that the proper remedy is to ignore the stock repurchases on February 19, 2010 and
treat the Murwin Companies as if they were under common control at the time of Apex’s
withdrawal from the Fund.
The decisions cited above have held that, in order to give full effect to this transactionignoring remedy, any improperly transferred assets must be collectible from the recipients of
those assets. Critically, the Complaint has not alleged any facts suggesting that the Estate has
received assets resulting from transactions intended to evade or avoid withdrawal liability. The
Court is aware of the possibility that discovery may reveal that the Estate received assets as a
result of transactions with the Murwin Companies to evade or avoid withdrawal liability. In that
scenario, Plaintiff would be entitled to collect the improperly transferred assets from the Estate.
If discovery yields evidence to that effect, the Court may permit Plaintiff to amend its Complaint
to add the Estate as a party. However, because the Complaint does not allege any facts that
suggest the Estate received assets from the Murwin Companies as a result of any of the alleged
transactions, the Complaint has failed to state a claim for relief against the Estate.
An appropriate order follows.
O:\CIVIL 13\13-5500 einhorn v. apex equipment\13cv5500.5501.082614.memo.mtd.docx
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