IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RICHARD A. McCURDY, JR., DANIEL L. :

WOODALL, JR., SAMUEL STATEN, SR., :

ANTHONY DePAUL, JOHN R. SMITH, JR., :

WADE STEVENS, JR., JAMES F. SASSAMAN, : No. 

ANTHONY SAMANGO JOSEPH BARILOTTI, :

JAMES DAVIS, JAMES HARPER and :

CHARLES TABOURN IN THEIR FIDUCIARY :

CAPACITIES AS TRUSTEES OF THE :

LABORERS  DISTRICT COUNCIL :

CONSTRUCTION INDUSTRY PENSION FUND :

:

1361 Ridge Avenue :

Philadelphia, PA 19123 and :

:

THE LABORERS  DISTRICT COUNCIL :

CONSTRUCTION INDUSTRY PENSION FUND :

:

1361 Ridge Avenue :

Philadelphia, PA 19123 and :

:

MELVIN BARNES, SR., ALTON EL, :

SAMUEL STATEN, SR., JAMES N. :

HARPER, DANIEL L. WOODALL, JR., :

JOSEPH BARILOTTI, WALTER P. :

PALMER, III, WALTER P. PALMER, JR. :

FRANCIS PIETRINI, MARK LORENZON :

AND JAMES F. SASSAMAN, IN THEIR :

FIDUCIARY CAPACITIES AS TRUSTEES :

OF THE LABORERS  DISTRICT COUNCIL :

BUILDING AND CONSTRUCTION :

HEALTH AND WELFARE FUND :

:

211 North 13th Street, 6th Floor :

Philadelphia, PA 19107 and :

:

THE LABORERS  DISTRICT COUNCIL :

BUILDING AND CONSTRUCTION :

HEALTH AND WELFARE FUND :

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211 North 13th Street, 6th Floor :

Philadelphia, PA 19107 and :

:

DANIEL L. WOODALL, JR., WADE :

STEVENS, JR., SAMUEL STATEN,SR., :

JAMES N. HARPER, WALTER PALMER,III,:

JOSEPH BARILOTTI, ALTON B. EL, :

MELVIN BARNES, WALTER P. PALMER, :

JR., FRANCIS DIETRINI, JUDSON F. :

VOGDES and MARK LORENZON, IN THEIR :

FIDUCIARY CAPACITIES AS TRUSTEES :

OF THE LABORERS  DISTRICT COUNCIL :

EDUCATION AND TRAINING FUND :

:

1361 Ridge Avenue :

Philadelphia, PA 19123 and :

:

THE LABORERS  DISTRICT COUNCIL :

EDUCATION AND TRAINING FUND :

:

1361 Ridge Avenue :

Philadelphia, PA 19123 and :

:

JAMES R. DAVIS, JAMES F. :

SASSAMAN, DANIEL WOODALL, JR. AND :

SAMUEL STATEN, SR. IN THEIR :

FIDUCIARY CAPACITIES AS TRUSTEES :

OF THE LABORERS  DISTRICT COUNCIL :

PREPAID LEGAL FUND :

:

661 North Broad Street :

Philadelphia, PA 19123 and :

:

THE LABORERS  DISTRICT COUNCIL :

PREPAID LEGAL PLAN :

:

661 North Broad Street :

Philadelphia, PA 19123 and :

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THE LABORERS  DISTRICT COUNCIL :

OF THE METROPOLITAN AREA OF :

PHILADELPHIA AND VICINITY :

LABORERS  INTERNATIONAL UNION :

OF NORTH AMERICA, WADE STEVENS, JR.:

AS TRUSTEE AD LITEM :

:

665 North Broad Street :

Philadelphia, PA 19123 and :

:

JAMES HARPER, SAMUEL STATEN, SR., :

WADE STEVENS, JR., DANIEL L. :

WOODALL, JR., THOMAS E. CURRY, :

ROBERT E. LAVELLE, SR., JOSEPH :

BARILOTTI and HARRY I. HOPKINS, :

IN THEIR FIDUCIARY CAPACITIES AS :

TRUSTEES OF THE LABORERS - :

EMPLOYERS  COOPERATION AND :

EDUCATION TRUST :

:

1500 Walnut Street, Suite 1304 :

Philadelphia, PA 19103 and :

:

ROBERT E. LAVELLE and SAMUEL :

STATEN, SR., IN THEIR FIDUCIARY :

CAPACITIES AS TRUSTEES OF :

LABORERS  DISTRICT COUNCIL LOCAL :

REGIONAL, AND STATE HEALTH AND :

SAFETY BENEFIT FUND :

:

1500 Walnut Street, Suite 1304 :

Philadelphia, PA 19103 and :

:

LABORERS  DISTRICT COUNCIL LOCAL :

REGIONAL, AND STATE HEALTH AND :

SAFETY BENEFIT FUND :

:

1500 Walnut Street, Suite 1304 :

Philadelphia, PA 19103 and :

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GENERAL BUILDING CONTRACTORS :

ASSOCIATION :

36 South 18th Street :

Philadelphia, PA :

:

36 South 18th Street :

Philadelphia, PA 19103 :

Plaintiffs

vs. :

:

NEWPORT CONTRACTORS, INC. :

340 North 12th Street, Suite 400 :

Philadelphia, PA 19107 :

Defendant

COMPLAINT

I. JURISDICTION AND VENUE

1. This Court has jurisdiction over the subject matter of

this action pursuant to 29 U.S.C. §§ 185(a), 1132, 1145.

2. A copy of this Complaint has been served upon the

Secretary of Labor and the Secretary of the Treasury of the

United States by Certified Mail.

3. This Court is one of proper venue pursuant to 29 U.S.C.

§§ 185(a) or 1132(e).

II. PARTIES

4. The Laborers  District Council Construction Industry

Pension Fund (hereinafter referred to as Pension Fund ) is a

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trust fund established and maintained pursuant to Section

302(c)(5) of the LMRA, 29 U.S.C. § 186(c)(5), and is an employee

benefit plan established and maintained pursuant to §§ 3(1) and

(3) of ERISA, 29 U.S.C.§§ 1002(1) and (3), which is maintained

for the purpose of providing pension and retirement benefits to

eligible participants. The Pension Fund qualifies to commence

this action under § 502(d)(1) of ERISA, 29 U.S.C. § 1132(D)(1).

5. Richard A. McCurdy, Jr., Daniel L. Woodall, Jr., Samuel

Staten, Sr., Anthony DePaul, Wade Stevens, Jr., James F.

Sassaman, Anthony Samango Joseph Barilotti, James R. Davis, James 

Harper and Charles Tabourn (hereinafter referred to as Pension

Fund Trustees ) are fiduciaries within the meaning of §§ 2(21)(A)

and (g) of ERISA, 29 U.S.C., § 1132(a)(3).

6. Plaintiff, Laborers  District Council Building and

Construction Health and Welfare Fund (hereinafter referred to as

 Health and Welfare Fund ), is a trust fund established and

maintained pursuant to § 302(c)(5) of the LMRA, 29 U.S.C. §

186(c)(5), and is an employee benefit plan established and

maintained pursuant to §§ 3(1) and (3) of ERISA, 29 U.S.C. §§

1002(1) and (3), which is maintained for the purpose of providing

health benefits and other welfare benefits to eligible

participants. The Health and Welfare Fund qualifies to commence

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this action under § 502(d)(1) of ERISA, 29 U.S.C. 1132(D)(1).

7. Wade Stevens, Jr., Melvin Barnes, Sr., Alton B. El,

Samuel Staten, Sr., James N. Harper, Daniel L. Woodall, Jr.,

Joseph Barilotti, Walter P. Palmer, III, Walter P. Palmer, Jr.,

Francis Pietrini, Mark Lorenzon and Judson F. Vogdes (hereinafter

referred to as Health and Welfare Fund Trustees ), are

fiduciaries within the meaning of § 3(21)(A) of ERISA, 29 U.S.C.

§§ 1132(A)(3) and (g), respectively.

8. The Laborers  District Council Education and Training

Fund (hereinafter referred to as Training Fund ), is a trust

fund established and maintained pursuant to § 302(c)(5) of the

LMRA, 29 U.S.C. 186(c)(5), and is an employee benefit plan

established and maintained pursuant to §§ 3(1) and (3) of ERISA,

29 U.S.C. § 1132(d)(1).

9. Daniel L. Woodall, Jr., Willie Bright, Richard A.

McCurdy, Jr., Wade Stevens, Jr., Samuel Staten, Sr., James

Harper, James R. Davis, Walter P. Palmer, Anthony Samango, James

Davis and Joseph Barilotti (hereinafter referred to as Training

Fund Trustees ), are fiduciaries within the meaning of §1132

(a)(3) and (g), respectively.

10. The Laborers  District Council Prepaid Legal Fund

(hereinafter referred to as Legal Fund ), is a trust fund

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established and maintained pursuant to §§ 3(1) and (3) of ERISA,

29 U.S.C. §§ 1002(1) and (3), which is maintained for the purpose

of providing prepaid legal benefits to eligible participants. 

The Legal Fund qualifies to commence this action under §

502(d)(1) of ERISA, 29 U.S.C. § 1132(d)(1).

11. James R. Davis, James F. Sassaman, Daniel L. Woodall,

Jr. and Samuel Staten, Sr. (hereinafter referred to as Legal

Fund Trustees ) are fiduciaries within the meaning of §3(21)(A)

of ERISA, 29 U.S.C. § 1002(21)(A). As such, the Legal Fund

Trustees are qualified to commence this action under §§502(a)(3)

and (g) of ERISA, 29 U.S.C. §§ 1132(a)(3) and (g), respectively.

12. Plaintiff, Laborers  District Council of the

Metropolitan Area of Philadelphia and vicinity, Laborers 

International Union of North America (hereinafter referred to as

the Union ), is an unincorporated labor organization engaged in

representing employees for the purpose of collective bargaining. 

Wade Stevens, Jr. is Business Manager of the Union and is duly

authorized to serve as Trustee Ad Litem for the purpose of these

proceedings.

13. Plaintiff, Laborers -Employers Cooperation and

Education Trust (hereinafter LECET ) is a trust fund established

and maintained pursuant to §§ 302(c)(5) of the LMRA, 29 U.S.C.

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§186(c)(5), and is an employee benefit plan established and

maintained pursuant to §§ 3(1) and (3) of ERISA, 29 U.S.C. 

§ 1132(d)(1).

14. James Harper, Samuel Staten, Sr., Wade Stevens, Jr.,

Daniel L. Woodall, Jr., Thomas E. Curry, Robert Lavelle, Sr.,

Joseph Barilotti and Harry I. Hopkins (hereinafter referred to as

 LECET Trustees ) are fiduciaries within the meaning of §

3(21)(A) of ERISA, 29 U.S.C. § 1002 (21)(A). As such, the LECET

Trustees are qualified to commence this action pursuant to

§§502(a)(3) and (g) of ERISA, 29 U.S.C. § 1132(a)(3) and (G),

respectively.

15. Plaintiffs, Robert E. Lavelle and Samuel Staten, Sr.

(hereinafter referred to as Health and Safety Fund Trustees )

are fiduciaries within the meaning of § 3(21)(A) of ERISA, 29

U.S.C. § 1002(21)(A). As such, the Health and Safety Benefit

Fund Trustees are qualified to commence this action pursuant to

§§ 502(a)(3) and (g) of ERISA, 29 U.S.C. § 1132(a)(3) and (G),

respectively.

16. Plaintiff, General Building Contractors Association is

a non-profit corporation representing employers in the commercial

and institutional construction industry for the purpose of

collective bargaining.

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17. Defendant, Newport Contractors, Inc. (hereinafter

referred to as Newport , Employer  or Defendant ) is an

employer in and affecting commerce within the meaning of §§

3(5),(11) and (12) of ERISA, 29 U.S.C. §§ 1002(5),(11) and (12)

and Sections (6) and (7) of the National Labor Relations Act, as

amended, 29 U.S.C. §152(2)(6) and (7) (hereinafter referred to as

the N.L.R.A. ).

18. Defendant, Newport, is a corporation authorized to

conduct business in the Commonwealth of Pennsylvania. Defendant

maintains its primary place of business at 340 North 12th Street,

Suite 400, Philadelphia, PA 19107.

III. STATEMENT OF THE CLAIM

19. At all times relevant, Defendant, Newport and

Plaintiff, Union have been parties to a Collective Bargaining

Agreement.

20. The Defendant, Newport, also signed and/or agreed to

abide by the terms of the agreements and declarations of trust of

the Plaintiff Funds, as from time to time amended ( Trust

Agreements ) made between certain employers and employee

representatives in an industry(ies) affecting interstate commerce

to promote stable and peaceful labor relations.

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21. The Collective Bargaining Agreement contains provisions

whereby Defendant, Newport, was required to deduct designated

amounts for Union working dues and make contributions to the

Laborers  District Council Pension Fund, Health and Welfare Fund,

Education and Training Fund, Prepaid Legal Fund and Health and

Safety Benefit Fund on behalf of all employees covered by the

Collective Bargaining Agreement and was required to pay such

amounts to the Union and Funds.

22. Under the Labor Contract or Trust Agreements, Defendant

agreed:

a. to make full and timely payments on a monthly

basis to the Funds, Union and Industry Advancement

Program as required by the Labor Contracts;

b. to file monthly remittance reports with the Funds

detailing all employees or work for which

contributions were required under the Labor

Contract;

c. to produce upon request by the Funds, individually

or jointly, all books and records deemed necessary

to conduct an audit of the Company s records

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concerning its obligations to the Funds and Union;

and

d. to pay liquidated damages and all costs of

litigation, including attorneys fees, expended by

the Funds and Union to collect any amounts due as

a consequence of the Company s failure to comply

with its contractual obligations described in

subparagraphs (a), (b) and (c) above.

22. In accordance with their duty and rights conferred by

contract and applicable law, Plaintiffs notified Defendant of the

need to conduct an examination of its payroll records ( audit )

for the period beginning January 1, 2001 through the present and

undertook efforts for over one year to accomplish same. During

such period, Defendant failed to cooperate with scheduled audit

dates, access to materials and otherwise thwarted Plaintiffs 

efforts.

23. Notwithstanding such efforts, Defendant has failed and

refused to permit Plaintiffs to conduct a payroll audit.

24. Upon information and belief, Defendant has failed to

make payment of contributions on behalf of individuals performing

covered employment within the meaning of the collective

bargaining agreement.

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25. All delinquent contributions herein have remained

unpaid for more than thirty (30) days beyond the date on which

they were due pursuant to the terms of the Collective Bargaining

Agreement and Trust agreements.

26. This action is brought by the fiduciaries of the above

Funds pursuant to §502(g(2), 29 U.S.C. §1132(g(2) to enforce §515

of ERISA, 29 U.S.C. §1145, pursuant to which the Court is

directed to award all unpaid contributions, interest and

liquidated damages up to or exceeding twenty per cent, reasonable

attorney s fees, court costs, and any other fees or relief which

the Court deems appropriate.

27. Under the terms of the Collective Bargaining Agreement,

Defendant, Newport, is contractually obligated to pay liquidated

damages, counsel fees, audit costs and interest.

IV. AUDIT/ACCOUNTING

28. The allegations of Paragraphs 1 through 27 are

incorporated by reference as if fully restated.

29. The amount of contributions Defendant is required to

pay to the Funds and Union is based upon hours worked and wages

paid to the employees performing work covered by the Labor

Contract.

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30. The Plaintiffs are without sufficient information or 

knowledge to plead the precise nature, extent and amount of the

Defendant s delinquency for the period subsequent to January 1,

2001 through and including the present, since the books, records

and information necessary to determine such liability are in the

exclusive possession, custody, control or knowledge of the

Defendant.

31. Computation of the precise amount of an employer s

delinquency is ordinarily achieved by an audit of the employer s

books and records and/or calculated from contractually required

remittance reports submitted by the employer.

32. Because of Defendant s failure and refusal to

participate in a payroll audit, Plaintiffs do not have sufficient

information at the present time to calculate the amount of any

deficiency from January 1, 2001 through the present.

33. Defendant is required by the Labor Contract, Trust

Agreements and/or applicable law to permit the Funds to audit its

records and to cooperate with the Funds in determining the amount

of contributions due.

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34. Plaintiffs have no adequate remedy at law for the

calculation of damages suffered from January 1, 2001 through and

including the present as a result of Defendant s breach of its

obligations and therefore require an audit.

35. All conditions precedent to equitable relief have

been satisfied.

WHEREFORE, the Fund and Union Plaintiffs ask that the Court:

(1) Enjoin the Defendant, its affiliated

organizations/entities, officers, agents, servants,

employees, attorneys and all others in active concert

or participation with them to permit an audit of all

records from January 1, 2001 through the present under

the actual or constructive control of the defendant,

and in the absence of records, to cooperate in

alternative methods for the determination of work for

which contributions are due; and

(2) Grant such other or further relief, legal or equitable,

as may be just, necessary or appropriate.

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V. CONTRIBUTIONS UNDER CONTRACT AFTER AUDIT

ALL PLAINTIFFS v. DEFENDANT

36. The allegations of Paragraphs 1 through 35 are 

incorporated by reference as if fully restated.

37. Defendant has failed to make contributions to the Funds

and Union as required by the Labor Contract or Trust Agreements.

38. Plaintiffs have been damaged by the failure of

Defendant to make contributions as required by its Labor Contract

or Trust Agreements.

WHEREFORE, Plaintiffs ask that the Court:

(1) After an audit, enter judgment against the Defendant

and in favor of the Plaintiffs individually for the

amount of contributions found due and owing by an

audit, together with liquidated damages, interest and

costs, including reasonable audit fees and attorneys 

fees incurred in this action or in the collection and

enforcement of any judgment, as provided in the Labor

Contract or Trust Agreements; and

(2) Grant such other relief, legal or equitable, as may be

just, necessary or appropriate.

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VI. CONTRIBUTIONS UNDER ERISA AFTER AUDIT

FUND PLAINTIFFS v. DEFENDANT

39. The allegations of Paragraphs 1 through 38 are 

incorporated by reference as if fully restated.

40. On information and belief, Defendant has failed to make

contributions to the Funds in violation of 29 U.S.C. §1145.

41. The Plaintiffs are without sufficient information or

knowledge to plead the precise nature, extent and amount of the

Defendant s delinquency for the period January 1, 2001 through

the present, since the books, records and information necessary

to determine this liability are within the possession, control

and knowledge of the Defendant.

42. On information and belief, the Plaintiff Funds have 

been damaged by Defendant s violation of 29 U.S.C. §1145.

WHEREFORE, Plaintiffs ask that this Court:

(1) After an audit, enter judgment against the Defendant,

and in favor of the Plaintiff Funds individually for

the contributions found due and owing by the audit,

together with interest at the rate prescribed in 26

U.S.C. §6621 from the due date of the payment until the

date of the actual payment, liquidated damages equal to

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the greater of the interest on the unpaid contributions

or liquidated damages provided by the Plan document or

statute and reasonable audit fees and attorneys  fees

and costs incurred in connection with any proceedings

to enforce or collect any judgment; and

(2) Grant such other or further relief, legal or equitable,

as may be just, necessary or appropriate.

MASTERSON, BRAUNFELD

& MILNER, LLP

By: ___________________________

Nancy L. Goldstein, Esquire

Attorney for the Plaintiffs

702, One Montgomery Plaza

Norristown, PA 19401

(610) 277-1700 (phone)

(610) 277-9979 (facsimile)

Dated:

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CERTIFICATE OF SERVICE

Nancy L. Goldstein, Esquire, hereby certifies that a true

and correct copy of the foregoing Complaint has been served by

Certified Mail, as required by § 502(h) of the Employment

Retirement Income Security Act of 1974, 29 U.S.C. § 1132(h) on

the date listed herein, upon the following:

Secretary of the Treasury

Internal Revenue Service

1111 Constitution Ave., NW

Washington, D.C. 20224

Attn: T:EP

and

Secretary of Labor

200 Constitution Ave.

Washington, D.C. 20002

Attn: Assistant Solicitor 

 for Benefits Security

MASTERSON, BRAUNFELD

& MILNER, LLP

By: ___________________________

Nancy L. Goldstein, Esquire

Attorney for Plaintiffs

DATE:

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