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TRUSTEES OF THE FOUR JOINT BDS. HEALTH & WELFARE &

September 28, 1994

TRUSTEES OF THE FOUR JOINT BOARDS HEALTH AND WELFARE AND PENSION FUNDS, Plaintiffs,
v.
PENN PLASTICS, INC., Defendant.


Leisure


The opinion of the court was delivered by: PETER K. LEISURE

LEISURE, District Judge:

 This is an action to recover delinquent employee-benefit-fund contributions. Plaintiffs are the Trustees of the Four Joint Boards Health and Welfare and Pension Funds (the "Trustees" or the "Funds"). *fn1" Defendant is Penn Plastics, Inc. ("Penn Plastics"), a Pennsylvania corporation, with its principal place of business at Creighton, Pennsylvania. The Trustees assert liability under the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. § 1001, et seq., and a collective bargaining agreement entered into between Penn Plastics and the International Leather Goods, Plastics, Novelty Workers Union (the "Union"). This Court has subject matter jurisdiction pursuant to ERISA § 502, 29 U.S.C. § 1132, and § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185 (1947).

 The Trustees have moved for summary judgment pursuant to Fed. R. Civ. P. 56 ("Rule 56"). For reasons stated below, the Trustees' motion is granted as to liability but denied as to damages.

 BACKGROUND

 Penn Plastics and the Union entered into a collective bargaining agreement that purported to be effective during the three-year period from February 1, 1991 through January 31, 1994 (the "Collective Bargaining Agreement"). The Collective Bargaining Agreement expressly obligated Penn Plastics to make monthly contributions to the Funds, in amounts that would increase each year according to a formula and a procedure described in the Collective Bargaining Agreement. However, Penn Plastics encountered serious financial difficulties and, as of August 1992, became delinquent in its contributions to the Funds.

 On December 4, 1992, Penn Plastics and the Union entered into an amendment to the Collective Bargaining Agreement (the "Amendment"). The Funds were not parties to the Amendment. According to Penn Plastics, the Amendment was intended, inter alia, to avert the annual increases in required rates of contributions to the Funds that, under the Collective Bargaining Agreement, were to take effect on February 1, 1993.

 The Trustees filed this action on May 13, 1993, seeking delinquent contributions and a variety of ancillary relief.

 DISCUSSION

 The Trustees have moved for summary judgment with respect to each aspect of the relief that they have requested. Penn Plastics has not disputed that it is liable to the Funds for some amount of delinquent contributions, for prejudgment and penalty interest, and for attorneys' fees and costs. Rather, Penn Plastics disputes the amounts of delinquent contributions, prejudgment and penalty interest, and attorney's fees that are owed. Penn Plastics also disputes whether it is liable for auditors' fees and, if so, the amount thereof.

 I. THE SUMMARY JUDGMENT STANDARD

 "Summary judgment may be granted if, upon reviewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993). In deciding the motion, "the Court is required to draw all factual inferences in favor of the party against whom summary judgment is sought." Balderman v. U.S. Veterans Administration, 870 F.2d 57, 60 (2d Cir. 1989). "Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted." Cruden v. Bank of New York, 957 F.2d 961, 975 (2d Cir. 1992); accord Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991).

  The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion" and identifying the materials in the record that "it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once a motion for summary judgment is properly made and supported, however, the burden shifts to the nonmoving party to "'set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (quoting Fed. R. Civ. P. 56(e)).

 In a dispute involving a contract's meaning, summary judgment may be granted if the contract's language is plain and unambiguous. Brass v. American Film Technologies, Inc., 987 F.2d 142, 148 (2d Cir. 1993); Seiden Assoc., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir. 1992). A contract's language is unambiguous if there is "'no reasonable basis for a difference of opinion'" as to the contract's meaning. Hunt Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d Cir. 1989) (quoting Breed v. Insurance Co. of North America, 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280 (1978)).

 II. DELINQUENT CONTRIBUTIONS

 The Trustees' principal claim is that, as a matter of law, pursuant to ERISA § 515, Penn Plastics is liable for delinquent contributions at a rate to be determined in accordance with the Collective Bargaining Agreement and not in accordance with the Amendment. Penn Plastics offers a different interpretation of § 515 and argues that summary judgment is inappropriate on this point because there is a genuine issue of material fact as to the proper interpretation of the Amendment -- namely, whether the Amendment was intended to avert the annual increases in required rates of contributions to the Funds that, under the Collective Bargaining Agreement, were to take effect on February 1, 1993. *fn2"

 ERISA § 515 provides:

 
Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or agreement.

 29 U.S.C. § 1145. The considerations that animated Congress' passage of this section have been explored at some length in several of the Circuit Courts of Appeals, see, e.g., Central States, Southeast and Southwest Areas Pension Fund v. Gerber Truck Service, Inc., 870 F.2d 1148, 1151-56 (7th Cir. 1989) (en banc) (Easterbrook, J.); Bituminous Coal Operators' Association, Inc. v. Connors, 276 U.S. App. D.C. 9, 867 F.2d 625, 632-36 (D.C. Cir. 1989) (D. Ginsburg, J.); Southern California Retail Clerks Union & Food Employers Joint Trust Fund v. Bjorklund, 728 F.2d 1262, 1265-66 (9th Cir. 1984), including the Court of Appeals for ...


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