Free Complaint - District Court of Delaware - Delaware

Case 1:08-cv-00199-JJF

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MERANZE AND KATZ, P.C. By: Claiborne S. Newlin, Esquire Identification No.: 4745 1225 King Street, Suite 800 Wilmington, DE 19801 Tel. (302) 655-5510 Fax: 215 790-1382

Counsel for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ________________________________________________ INTERNATIONAL ASSOCIATION OF HEAT AND : FROST INSULATORS, ASBESTOS WORKERS : LOCAL NO. 42 : 1188 River Road : New Castle, DE 19720 : : and : : SIMONE ROCKSTROH, FUND ADMINISTRATOR : c/o Carday Associates, Inc. : 7130 Columbia Gateway, Suite A : Columbia, MD 21406 , on behalf of : : and : : ASBESTOS WORKERS LOCAL NO. 42 PENSION : FUND : 1188 River Road : New Castle, DE 19720 : : and : : ASBESTOS WORKERS LOCAL NO. 42 : APPRENTICESHIP FUND : 1188 River Road : New Castle, DE 19720 : Plaintiffs, : : v. : : A. GALLO CONTRACTORS, INC. : 427 Glendale Avenue : Maple Shade, NJ 08052 : Defendant. :

CIVIL ACTION NO.:________________

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COMPLAINT PARTIES 1. Plaintiff International Association of Heat and Frost Insulators and Asbestos

Workers Local Union No. 41 (Union is a labor organization within the meaning of Section 2(5) of the National Labor Relations Act, 29 U.S.C. §29 U.S.C. §152(5), and Section 301(a) of the Labor Management Relations Act (>MRA, 29 U.S.C. §125(a), with its principal office at 1188 River Road, New Castle, Delaware 19809. 2. Plaintiff, Simone Rockstroh ("Rockstroh") is the administrator for the Asbestos

Workers Union No. 42 Welfare Fund (Welfare Fund), and employee welfare plan within the meaning of Section 2(1) and (3) of ERISA, 29 U.S.C. §1002(1) and (3), and Section 2(37) of ERISA, 29 U.S.C. §1002(37), with its principal office at c/o Carday Associates, 7130 Columbia Gateway Drive, Suite A, Columbia, MD 21046. 3. Plaintiff, Rockstroh is the administrator for the Asbestos Workers Union No. 42

Joint Apprenticeship Fund (Apprenticeship Fund), and employee training plan within the meaning of Section 2(2) and (3) of ERISA, 29 U.S.C. §1002(2) and (3), and Section 2(37) of ERISA, 29 U.S.C. §1002(37), with its principal office at c/o Carday Associates, 7130 Columbia Gateway Drive, Suite A, Columbia, MD 21046. 4. Plaintiff, Rockstroh, is the administrator for the Asbestos Workers Union No. 42

Pension Fund (Pension Fund), and employee pension plan within the meaning of Section 2(2) and (3), and Section 2(37) of ERISA, 29 U.S.C. §1002(37), with its principal office at c/o Carday Associates, 7130 Columbia Gateway Drive, Suite A, Columbia, MD 21046. 5. Plaintiff, Rockstroh brings this action as the administrator of the aforereferenced

Funds and on behalf of the participants and beneficiaries of the said Funds.

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6.

Defendant A. Gallo Contractors, Inc. ("Gallo") is believed and therefore averred

to be a corporation organized and existing under the laws of the State of New Jersey. Defendant Gallo is an employer within the meaning of Section 2(2) of the National Labor Relations Act, 29 U.S.C. §152(2) and Section 301(a) of the Labor-Management Relations Act. 29 U.S.C. §185(a). Defendant Gallo is an employer within the meaning of §2(5) of ERISA, 29 U.S.C. §1002(5) and within the meaning of Section 515, of ERISA, 29 U.S.C. §1145, with its principal place of business located at 427 Glendale Avenue, Maple Shade, NJ 08052.

JURISDICTION AND VENUE 7. Jurisdiction of the Court is invoked pursuant to Section 301(c) of the LMRA, 29

U.S.C. §185(c), and Section 502(a) (3) of ERISA, 29 U.S.C. §1132(a) (3), and 28 U.S.C. §§1131 and 1337 providing for original jurisdiction in the District Courts of the United States Civil Actions that arise out of Acts of Congress regulating commerce. 8. Venue in the United States District Court for the District of Delaware is proper

pursuant to Section 301(c) of the LMRA, 29 U.S.C. §185(c), and Section 502(e) (2) of ERISA, 29 U.S.C. §1132(e) (2) since the underlying work which gave rise to the original delinquency was performed in the State of Delaware and the related judgment upon which Plaintiffs seek to attribute liability to Gallo was obtained in this District.

FACTS 9. On June 26, 2003, Plaintiffs filed a complaint in the United States District Court

for the District of Delaware (Civil Action No. 03-233) against Tempco Insulation Corporation ("Tempco") to recover unpaid benefit fund contributions, interest, liquidated damages, attorney's fees and costs owed to Plaintiffs.

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10.

On June 10, 2004, the Hon. Kent A. Jordan entered an Order awarding judgment

in favor of the Plaintiffs and against the Defendant Tempco in the amount of $15,645.42. 11. It is believed and therefore averred that Gallo is a disguised continuance of

Tempco, established to avoid Tempco's obligations to these Plaintiffs, as well as other similar situated Plaintiffs in other litigation matters. 12. 13. 14. 15. In March, 2003, Tempco went out of business. In 2003, Gallo went into business. Both Tempco and Gallo performed work in the insulation industry. Gary Love was a Vice President of Tempco who performed project management

duties for that company. 16. 17. 18. Gary Love is the project manager for Gallo. The President of Gallo is Julia Love, the wife of Gary Love. Gary Love and Julia Love reside at 427 Glendale Avenue, Maple Shade, New

Jersey, the business address for Gallo. 19. 20. 21. 22. Tempco. WHEREFORE, Plaintiffs seek judgment on their own behalf, and on behalf of their participants and against Gallo as follows: a) b) judgment against Defendant in the amount of $15,645.42; appropriate interest thereon; Gallo has employed former employees of Tempco. Gallo has serviced former customers of Tempco. Gallo has utilized equipment previously belonging to Tempco. Gallo and Tempco are alter egos and Gallo is therefore liable for the debts of

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c) d)

costs and reasonable attorney's fees; such other and further relief as the Court deems just and proper.

Respectfully submitted, MERANZE AND KATZ, P.C.

Date: 4/7/08

By: s/ Claiborne S. Newlin CLAIBORNE S. NEWLIN, ESQUIRE 1225 King Street, Suite 800 Wilmington, DE 19801 Tel. (302) 655-5510 Fax (215 790-1382 E-Mail: [email protected] Counsel for Plaintiffs

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