MERANZE AND KATZ, P.C.

BY: Michael N. Katz, Esquire (ID# 27857) 

Claiborne S. Newlin, Esquire (ID# 84371) 

Lewis Tower Building, 12th Floor 

225 S. 15th Street 

Philadelphia, PA 19102 

Tel.: (215) 546-4183 

Fax: (215) 790-1382 

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 

BRICKLAYERS AND ALLIED CRAFTWORKERS : 

LOCAL 1 OF PA/DE et al. : CIVIL ACTION 

 :

 Plaintiffs, : NO. 02CV-4079 

 v. :

 :

MASTRO MASONRY CONTRACTORS et al. : 

 :

 Defendants : 

 :

SUMMARY CONTENTIONS OF FACT AND THEORIES OF LIABILITY

Plaintiffs, Bricklayers and Allied Craftworkers Local 1 of PA/DE (Local 1), Bricklayers 

and Allied Craftworkers Local 1 of PA/DE Health and Welfare Fund, Bricklayers and Allied 

Craftworkers Local 1 of PA/DE Joint Apprenticeship and Training Fund, Tile Layers Local 6 

Annuity Fund, TMT Tile Finishers Local 32 Annuity Fund, Tile Layers Local 6 Vacation Fund 

and TMT Tile Finishers Local 32 Vacation Fund file Plaintiff’s Summary Contentions of Fact 

and Theories Of Liability in accordance with the Court’s Non-Jury Trial Attachment Order of 

September 30, 2003 as amended in the Court’s Order of October 8, 2003. 

CONTENTIONS OF FACT

Plaintiffs contend that Defendants Mastro Masonry Contractors (Mastro) and Joseph 

Russo owe unpaid contributions, deducted dues, interest, liquidated damages, attorney’s fees and 

costs for the period August 2001 through March 2003. Plaintiffs base their claims on the signed 

Collective Bargaining Agreement (CBA) between Local 1 and Mastro, requiring the employer to 

make monthly contributions to the Local 1 affiliated benefit funds and deduct dues for each hour 

worked by Mastro employees covered by the CBA. Mastro not only signed the CBA but also 

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made partial contributions and deductions during the period August 2001 through January 2003. 

Joseph Russo, who was the owner, President and CEO of Mastro during the period at issue, 

signed the assent to the CBA on behalf of Mastro, and exercised authority and control over 

Mastro’s finances and operations during the period. 

Plaintiffs base their calculations of the amount owed on two sources. Plaintiffs claim 

interest and liquidated damages for paid contributions during August 2001 through January 2003 

on the basis of Mastro’s filed contribution reports. Plaintiffs’ claim for unpaid benefits, deducted 

dues, interest and liquidated damages for the period December 2001 through March 2003 is 

based on certified payroll reports filed by Mastro with Ernest Bock and Sons. The interest rate

and the rate for liquidated damages are taken from the collection policy established by the fund 

trustees under the Agreement and Declaration of Trust incorporated by reference in the CBA. 

The collection policy also entitles Plaintiffs to reimbursement for attorney’s fees and costs. 

THEORIES OF LIABILITY 

Plaintiffs are entitled to prevail on the basis of ERISA and the Labor Management 

Relations Act (LMRA). Under ERISA, Plaintiffs should receive judgment against Mastro for all 

unpaid contributions, interest, liquidated damages, attorney’s fees and costs in accordance with 

Section 502(g). 29 U.S.C. § 1132(g). Under Section 301 of the LMRA, 29 U.S.C. § 185, 

Plaintiffs can enforce the CBA, which obligates Mastro to turn over deducted dues on a monthly

basis and to comply with the terms of the Agreement and Declaration of Trust of the funds. The 

Agreement gives Plaintiffs the right to collect interest, liquidated damages, attorney’s fees and 

costs on the benefits Mastro paid past due. 

There are two additional legal issues of note. First is the question of whether Plaintiffs 

can collect for six employees of Mastro that are union members but are not listed on the certified 

payroll as having performed masonry work. According to the CBA, Plaintiffs are entitled to 

receive contributions for all employees on the job covered by the agreement whether or not they

are union members. Plaintiffs’ members would not be hired as Mastro’s employees on this job if 

they were not performing masonry work. Mastro has the burden of proving which employees are 

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ineligible for benefits. Since Mastro refuses to take part in this action, Plaintiff is entitled to 

contributions for all Mastro employees whom it has reason to believe were covered by the CBA. 

The second issue concerns the personal liability of Joseph Russo for the Mastro delinquency.

Plaintiffs argue that since the trust agreement defines contributions that are unpaid but due as 

assets and Russo had authority and control over the unpaid contributions, Russo is personally

liable under ERISA as a fiduciary. With regard to the dues money, Plaintiffs assert that Russo is 

liable to Local 1 on the basis of having used Local 1 dues deductions to pay corporate creditors. 

 Respectfully submitted, 

 MERANZE AND KATZ, P.C.

 BY: MICHAEL N. KATZ

October 14, 2003 CLAIBORNE S. NEWLIN

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