David S. Makara, Esquire

Atty. I.D. No. 78241

Davis & Bucco, P.C.

909 North Bethlehem Pike

Suite 200

P.O. Box 785

Spring House, PA 19477

(215) 540-9050

 IN

THE UNITED STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF PENNSYLVANIA

TROY SLEMMER, JACK W. KUHNS, SR.:

and JOSHUA W. KUHNS : CIVIL ACTION - LAW

:

Plaintiffs : NO. 02-4349

:

v. :

:

MCCARTHY MASONRY :

& CONCRETE, INC., :

JAMES MCCARTHY and :

ALICE MCCARTHY :

:

Defendants. :

:

ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANTS MCCARTHY

MASONRY & CONCRETE, INC., AND JAMES MCCARTHY

Defendants, McCarthy Masonry & Concrete, Inc., James McCarthy and Alice McCarthy,

by and through their counsel, Davis & Bucco, P.C., hereby respond to the Plaintiffs’ Complaint

as follows:

1. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by the Defendants.

2. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by the Defendants.

Case 2:02-cv-04349-JG Document 6 Filed 09/20/2002 Page 1 of 13
3. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

4. Denied. After reasonable investigation, Defendants are without knowledge or

information sufficient to form an opinion as to the truth or falsity of this allegation and strict

proof thereof is demanded at trial if relevant.

5. Admitted.

6. Admitted.

7. Admitted.

8. Admitted.

9. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

10. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

11. Admitted in part and denied in part. Defendants admit that James McCarthy is an

individual with an office located at 740 East Cherry Road, Quakertown, Pennsylvania. It is

further admitted that James McCarthy is an officer and shareholder of McCarthy Masonry and

that James McCarthy is the plan administrator of the McCarthy Savings Plan. The remaining

allegations of this paragraph of Plaintiffs’ Complaint constitute conclusion of law to which no

response is required by Defendants.

12. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

13. Denied. Defendants specifically deny that Alice McCarthy is an officer and

shareholder of McCarthy Masonry & Concrete, Inc., and strict proof thereof is demanded at trial

Case 2:02-cv-04349-JG Document 6 Filed 09/20/2002 Page 2 of 13
if relevant.

14. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

FACTUAL BACKGROUND

15. Admitted.

16. Admitted.

17. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

18. Admitted.

19. Denied. Defendants specifically deny they “induced” employees to take any

action and strict proof thereof is demanded at trial if relevant. With regard to the remaining

allegations of Plaintiffs’ Complaint, these allegations constitute conclusions of law to which no

response is required by Defendants.

20. Denied. After reasonable investigation, Defendants are without knowledge or

information sufficient to form an opinion as to the truth or falsity of this allegation and strict

proof thereof is demanded at trial if relevant.

21. Denied. After reasonable investigation, Defendants are without knowledge or

information sufficient to form an opinion as to the truth or falsity of this allegation and strict

proof thereof is demanded at trial if relevant.

22. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

23. (a-c) These allegations of Plaintiffs’ Complaint constitute conclusions of law to

Case 2:02-cv-04349-JG Document 6 Filed 09/20/2002 Page 3 of 13
which no response is required by Defendants.

24. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

25. Denied. McCarthy Masonry and James McCarthy specifically deny they failed to

make the contributions and strict proof thereof is demanded at trial if relevant.

26. Denied. Defendants specifically deny James McCarthy charged the McCarthy

Savings Plan and its participants a one and one-half percent administrative charge and strict

proof thereof is demanded at trial if relevant.

27. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants. By way of further answer, Defendants have made

all payments due employees of McCarthy Masonry.

28. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

29. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

COUNT I - PROHIBITED TRANSACTION - ERISA

PLAINTIFFS V. MCCARTHY MASONRY, INC., AND JAMES MCCARTHY

30. Defendants hereby incorporate paragraphs 1 through and including 29 of their

Answer with Affirmative Defenses as though fully set forth herein.

31. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

32. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

Case 2:02-cv-04349-JG Document 6 Filed 09/20/2002 Page 4 of 13
which no response is required by Defendants.

33. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

34. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

35. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

36. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

37. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

38. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

39. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

40. Denied. McCarthy Masonry and James McCarthy specifically deny Plaintiffs

have been damaged or adversely affected by the alleged transaction and strict proof thereof is

hereby demanded at trial if relevant.

WHEREFORE, Defendants McCarthy Masonry & Concrete, Inc., James McCarthy and

Alice C. McCarthy respectfully request the Court enter judgment in their favor and against

Plaintiffs Troy Slemmer, Jack W. Kuhns, Sr., and Joshua W. Kuhns on the claims set forth in

Plaintiffs’ Complaint.

Case 2:02-cv-04349-JG Document 6 Filed 09/20/2002 Page 5 of 13
COUNT II - BREACH OF FIDUCIARY DUTY

PLAINTIFFS V. MCCARTHY MASONRY, INC., AND JAMES MCCARTHY

41. Defendants hereby incorporate paragraphs 1 through and including 40 of their

Answer with Affirmative Defenses as though fully set forth herein.

42. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

43. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

44. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

45. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

WHEREFORE, Defendants McCarthy Masonry & Concrete, Inc., James McCarthy and

Alice C. McCarthy respectfully request the Court enter judgment in their favor and against

Plaintiffs Troy Slemmer, Jack W. Kuhns, Sr., and Joshua W. Kuhns on the claims set forth in

Plaintiffs’ Complaint.

COUNT III - SAVINGS PLAN BREACH

PLAINTIFFS V. MCCARTHY MASONRY, INC., AND JAMES MCCARTHY

46. Defendants hereby incorporate paragraphs 1 through and including 45 of their

Answer with Affirmative Defenses as though fully set forth herein.

47. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

Case 2:02-cv-04349-JG Document 6 Filed 09/20/2002 Page 6 of 13
48. Denied. Defendants specifically deny McCarthy Masonry failed to make timely

and complete deposits and strict proof thereof is demanded at trial if relevant. By way of further

answer, McCarthy Masonry, at all times relevant hereto, made timely and complete deposits to

the accounts of its employees.

49. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

WHEREFORE, Defendants McCarthy Masonry & Concrete, Inc., James McCarthy and

Alice C. McCarthy respectfully request the Court enter judgment in their favor and against

Plaintiffs Troy Slemmer, Jack W. Kuhns, Sr., and Joshua W. Kuhns on the claims set forth in

Plaintiffs’ Complaint.

COUNT IV - BREACH OF FIDUCIARY DUTY

PLAINTIFFS V. MCCARTHY MASONRY, INC., AND JAMES MCCARTHY

50. Defendants hereby incorporate paragraphs 1 through and including 49 of their

Answer with Affirmative Defenses as though fully set forth herein.

51. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

WHEREFORE, Defendants McCarthy Masonry & Concrete, Inc., James McCarthy and

Alice C. McCarthy respectfully request the Court enter judgment in their favor and against

Plaintiffs Troy Slemmer, Jack W. Kuhns, Sr., and Joshua W. Kuhns on the claims set forth in

Plaintiffs’ Complaint.

Case 2:02-cv-04349-JG Document 6 Filed 09/20/2002 Page 7 of 13
COUNT V - BREACH OF EMPLOYMENT CONTRACTS

PLAINTIFFS V. MCCARTHY MASONRY, INC., AND JAMES MCCARTHY

52. Defendants hereby incorporate paragraphs 1 through and including 51 of their

Answer with Affirmative Defenses as though fully set forth herein.

53. Admitted in part and denied in part. McCarthy Masonry admits undertaking to

provide its employees with wages, pension and other benefits. Defendants James McCarthy and

Alice C. McCarthy specifically entering into any employment relationship with the Plaintiffs and

strict proof thereof is demanded at trial if relevant. Defendants specifically deny entering into

any employment contract with Plaintiffs and strict proof thereof is demanded at trial.

54. (a-b) Denied. McCarthy Masonry specifically denies it failed to make payment of

wages or to fund the plan and strict proof thereof is demanded at trial if relevant. By way of

further answer, McCarthy Masonry made all required payment of wages and contributions to the

plan.

55. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

WHEREFORE, Defendants McCarthy Masonry & Concrete, Inc., James McCarthy and

Alice C. McCarthy respectfully request the Court enter judgment in their favor and against

Plaintiffs Troy Slemmer, Jack W. Kuhns, Sr., and Joshua W. Kuhns on the claims set forth in

Plaintiffs’ Complaint.

COUNT VI - CONVERSION

PLAINTIFFS V. MCCARTHY MASONRY, INC., AND JAMES MCCARTHY

Case 2:02-cv-04349-JG Document 6 Filed 09/20/2002 Page 8 of 13
56. Defendants hereby incorporate paragraphs 1 through and including 55 of their

Answer with Affirmative Defenses as though fully set forth herein.

57. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

58. Denied. McCarthy Masonry and James McCarthy specifically deny receiving any

monies which did not belong to them and strict proof thereof is demanded at trial if relevant.

59. Denied. McCarthy Masonry and James McCarthy specifically deny receiving any

assets of the Plaintiffs or converting such assets to their own use and strict proof thereof is

demanded at trial if relevant.

60. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by Defendants.

WHEREFORE, Defendants McCarthy Masonry & Concrete, Inc., James McCarthy and

Alice C. McCarthy respectfully request the Court enter judgment in their favor and against

Plaintiffs Troy Slemmer, Jack W. Kuhns, Sr., and Joshua W. Kuhns on the claims set forth in

Plaintiffs’ Complaint.

COUNT VII - CONSTRUCTIVE TRUST

PLAINTIFFS V. MCCARTHY MASONRY, INC., AND JAMES MCCARTHY

61. Defendants hereby incorporate paragraphs 1 through and including 60 of their

Answer with Affirmative Defenses as though fully set forth herein.

62. Denied. McCarthy Masonry and James McCarthy specifically deny they

improperly obtained possession of assets of the McCarthy Masonry Savings Plan and strict proof

thereof is demanded at trial. The remaining allegations of this paragraph of Plaintiffs’ Complaint

Case 2:02-cv-04349-JG Document 6 Filed 09/20/2002 Page 9 of 13
constitute conclusions of law to which no response is required by McCarthy Masonry and James

McCarthy.

63. Denied. McCarthy Masonry and James McCarthy specifically deny the assets of

the McCarthy Masonry Savings Plan are traceable into the hands of McCarthy Masonry or James

McCarthy and strict proof thereof is demanded at trial.

64. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by McCarthy Masonry and James McCarthy.

WHEREFORE, Defendants McCarthy Masonry & Concrete, Inc., and James McCarthy

respectfully request the Court enter judgment in their favor and against Plaintiffs Troy Slemmer,

Jack W. Kuhns, Sr., and Joshua W. Kuhns on the claims set forth in Plaintiffs’ Complaint.

COUNT VIII - MISREPRESENTATION

PLAINTIFFS V. MCCARTHY MASONRY, INC., AND JAMES MCCARTHY

65. Defendants hereby incorporate paragraphs 1 through and including 64 of their

Answer with Affirmative Defenses as though fully set forth herein.

66. Denied. McCarthy Masonry and James McCarthy specifically deny they

misrepresented the terms of employment to Plaintiffs and strict proof thereof is demanded at trial

if relevant.

67. Denied. McCarthy Masonry and James McCarthy specifically deny making any

false statements or omitting material items of fact and strict proof thereof is demanded at trial if

Case 2:02-cv-04349-JG Document 6 Filed 09/20/2002 Page 10 of 13
relevant.

68. Denied. McCarthy Masonry and James McCarthy specifically deny Plaintiffs

relied upon any statements or representations made by McCarthy Masonry or James McCarthy

and strict proof thereof is demanded at trial.

69. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by McCarthy Masonry and James McCarthy.

WHEREFORE, Defendants McCarthy Masonry & Concrete, Inc., and James McCarthy

respectfully request the Court enter judgment in their favor and against Plaintiffs Troy Slemmer,

Jack W. Kuhns, Sr., and Joshua W. Kuhns on the claims set forth in Plaintiffs’ Complaint.

COUNT IX - PENNSYLVANIA WAGE PAYMENT AND COLLECTION LAW

PLAINTIFFS V. MCCARTHY MASONRY, INC., AND JAMES MCCARTHY

70. Defendants hereby incorporate paragraphs 1 through and including 69 of their

Answer with Affirmative Defenses as though fully set forth herein.

71. Denied. This allegation of Plaintiffs’ Complaint constitutes a conclusion of law to

which no response is required by McCarthy Masonry and James McCarthy.

72. Denied. McCarthy Masonry and James McCarthy specifically deny they deducted

one and one-half hours per week from all employees’ pay checks and strict proof thereof is

demanded at trial if relevant.

73. Denied. After reasonable investigation, McCarthy Masonry and James McCarthy

are without knowledge or information sufficient to form an opinion as to the truth or falsity of the

allegations of this paragraph of Plaintiff’s Complaint and strict proof thereof is demanded at trial

if relevant.

Case 2:02-cv-04349-JG Document 6 Filed 09/20/2002 Page 11 of 13
74. Denied. After reasonable investigation, McCarthy Masonry and James McCarthy

are without knowledge or information sufficient to form an opinion as to the truth or falsity of the

allegations of this paragraph of Plaintiff’s Complaint and strict proof thereof is demanded at trial

if relevant.

WHEREFORE, Defendants McCarthy Masonry & Concrete, Inc., and James McCarthy

respectfully request the Court enter judgment in their favor and against Plaintiffs Troy Slemmer,

Jack W. Kuhns, Sr., and Joshua W. Kuhns on the claims set forth in Plaintiffs’ Complaint.

AFFIRMATIVE DEFENSES

1. Plaintiffs’ claims are barred by the doctrine of payment.

2. Plaintiffs’ claims are barred by the doctrine of waiver.

3. Defendants have made all contributions required by law to the savings plan.

4. Defendants have conformed with all requirements in administering the savings

plan.

5. Plaintiffs are not entitled to any payment or benefits beyond that which they have

previously received under the savings plan.

6. Defendant Alice C. McCarthy is not an officer, director or shareholder of

McCarthy Masonry & Concrete, Inc.

7. Defendant Alice C. McCarthy was in no way involved in the payment of wages to

employees by McCarthy Masonry & Concrete, Inc.

8. Defendant Alice C. McCarthy was in no way involved in the administration of the

employee benefit funds of McCarthy Masonry & Concrete, Inc.

Case 2:02-cv-04349-JG Document 6 Filed 09/20/2002 Page 12 of 13
9. Plaintiffs have no claims against Defendant Alice C. McCarthy.

Davis & Bucco, P.C.

Attorneys for Defendants

McCarthy Masonry & Concrete, Inc.,

James McCarthy and Alice C. McCarthy

 

David S. Makara, Esquire

Case 2:02-cv-04349-JG Document 6 Filed 09/20/2002 Page 13 of 13