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subset: commoncrawl


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March 19, 2009
IN THE MATTER OF CARL MOLANO, PETITIONER,v.NORMAN R. BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Calendar Date: January 26, 2009
Before: Peters, J.P., Rose, Kane, Malone Jr. and Stein, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner commenced this CPLR article 78 proceeding seeking to annul and expunge from his institutional record the administrative determination finding him guilty of violating the prison disciplinary rules that prohibit violent conduct and assault. The Attorney General has advised this Court that the determination at issue has been administratively reversed and all references thereto have been expunged from petitioner's institutional record. Inasmuch as petitioner has received all the relief he requested, this proceeding is dismissed as moot (see Matter of Correnti v LeClaire, 52 AD3d 1153 [2008]; Matter of Wong v Coughlin, 182 AD2d 926, 927 [1992]).
Peters, J.P., Rose, Kane, Malone Jr. and Stein, JJ., concur.
ADJUDGED that the petition is dismissed, as moot, without costs.
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Kuala Lumpur: Goh Liu Ying who won the Rio Olympics mixed doubles silver medal together with Chan Peng Soon will represent Puchong United Badminton Club in the 2016/2017 season of the Purple League.
Kuala Lumpur: The Rio Olympic champion and World No. 2 Chen Long of China has decided to give up on the wild card granted by Badminton World Federation (BWF) that allowed him to compete for the USD$1 million Superseries Finals held in Dubai from Dec 14-18.
Kuala Lumpur: With the former World No. 1 men's doubles Koo Kien Keat/ Tan Boon Heong a.k.a "Diamond pair" of Malaysia winding down their 10 years partnership, Tan Boon Heong is starting a new chapter of his badminton career by teaming up with his rival, good friend and the 2008 Olympic gold medalist Hendra Setiawan beginning of 2017.
Beijing: The new 2016-17 season of China Badminton Super League (CBSL) has officially started on December 6, 2016, and despite his extra marital affair scandal that rocked the badminton world last month, the two-time Olympic champion showed that he was still a formidable opponent on the badminton court by beating Tian Houwei 21-15, 22-20.
Jakarta: The 1992 Barcelona Olympic women's singles gold medal winner Susi Susanti has been appointed to replace Rexy Mainaky as the Indonesian Badminton Association's (PBSI) new high performance director for the period of 2016 until 2020.
Wiranto who was elected as the new president of PBSI at the end of October, has decided to revamp PBSI to restore Indonesian to their glory days in badminton by re-organizing PBSI.
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North Valley beauty!! Open floor plan with raised beamed ceilings, courtyard with gated entrance, 2nd living area with brick floors, skylights, floor to ceiling Kiva fireplace with built-in seating and more! Property sold in as is condition. Utility activation in progress. No warranties expressed or implied. Please submit copy of approval letter/POF, earnest money with all offers.


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filed: December 31, 1987.
EARL FORMAN, DECEASED, ELIZABETH FORMAN, WIDOWv.IRVING RUTBERG, APPELLANT (TWO CASES)
Appeal from the order of October 6, 1986 in the Court of Common Pleas, Civil Division, of Philadelphia County, No. 1037, May Term, 1986. Appeal from the order of October 6, 1986 in the Court of Common Pleas, Civil Division, of Philadelphia County, No. 1036, May Term, 1986.
Arnold F. Laikin, Philadelphia, for appellant.
Mark B. Segal, Philadelphia, for appellees.
Rowley, Kelly and Watkins, JJ.
[ 369 Pa. Super. Page 639]
This case involves appeals from two orders refusing to strike two judgments. In April, 1985, Appellee, Elizabeth Forman, filed a workmen's compensation fatal claim petition against appellant, Irving Rutberg, following her husband, Earl Forman's, fatal fall from a drain pipe while repairing appellant's rental property. In this claim she sought dependent's death benefits. In August, 1985, as executrix of Earl Forman's estate, appellee filed a lifetime claim petition against appellant seeking medical benefits. In January, 1986, appellant received notice of the Referee's Order that appellant's insurance company did not represent appellant individually, but only with regard to his fur business, and therefore, the insurance company's answers to the fatal claim and life time petitions were to be stricken. However, appellant, individually was granted leave to file an answer. On May 8, 1986, appellant still having filed no answer and appellee having received a notice from the Pennsylvania Compensation Rating Bureau that appellant was not carrying workmen's compensation insurance when Earl Forman fell and died, appellee filed two praecipes with the Prothonotary of the Court of Common Pleas of Philadelphia County to enter temporary judgments against appellant pursuant to 77 P.S. § 931.*fn1 The judgments were entered on May 8, 1986. On May 14, 1986 appellant filed answers to the petitions claiming that he was not an employer subject to the Workmen's Compensation Act. On August 21, 1986, appellant filed a petition to strike or open the judgments,*fn2 and to grant him counsel fees. The court entered an order with regard to each of the judgments
[ 369 Pa. Super. Page 640]
refusing to strike the judgments and denying the claim for counsel fees. Appellant has appealed from these orders, and the appeals have been consolidated.
Appellant contends that the trial court erred when it refused to strike the judgment because the statute authorizing entry of the judgment is unconstitutional on its face. Appellant asserts that 77 P.S. § 931 authorizing the temporary judgments to be entered against him, is a deprivation of his property without procedural or substantive due process of law in violation of both the state and federal constitutions. By placing a lien on the employer's property, thereby affecting its alienability, the statute restricts the employer's use of his property without due process. Similarly, because there is no provision in the statute for notice and a hearing prior to the entry of the judgment to ascertain the potential liability of the employer, the statute denies the employer procedural due process. Finally, appellant argues that appellee acted arbitrarily, vexatiously, and in bad faith when she filed the praecipes for the judgments, and therefore the trial court should have granted that portion of his petition which requested counsel fees.
The relevant portion of the statute allowing an employee to praecipe for a temporary judgment against an employer under certain circumstances, provides as follows:
Whenever, after an injury, any employe or his dependents shall have entered into a compensation agreement with an employer, who has not accepted or complied with the provisions of section three hundred five, or shall file a claim petition against such employer, he may file a certified copy thereof with the prothonotary of the court of common pleas of any county. The prothonotary shall enter the amount stipulated in any such agreement or claimed in any such claim petition as judgment against the employer, and where the amount so stipulated or claimed is for total and permanent disability, such judgment shall be in the sum of thirty thousand dollars. If the agreement be approved by the department, or compensation awarded as claimed in the petition, the amount
[ 369 Pa. Super. Page 641]
of compensation stipulated in the agreement or claimed in the petition shall be a lien, as of the date when the agreement or petition was filed with the prothonotary. Pending the approval of the agreement or the award of compensation, no other lien which may be attached to the employer's property during such time shall gain priority over the lien of such agreement or award; but no execution shall issue on any compensation judgment before the approval of the agreement of the award of compensation on the said petition.
The test for determining whether or not a statute denies substantive due process, where, as here, there is no fundamental interest or suspect classification involved, is whether or not the statute bears a rational relationship to a valid state objective. Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 Pa. 147, (1981); Whitling v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 95 Pa. Commw. 500, 505 A.2d 1101 (1986). Appellant argues that because not all employers named in workmen's compensation claims are ultimately found to be liable for the claims, the determination that a temporary judgment may be entered against any employer named in a workmen's compensation claim is unnecessarily arbitrary. We disagree.
Initially, we note that the statute does not apply to all employers named in a workmen's compensation claim, but only to those against whom there is an outstanding claim and who are not insured for such claims as required by 77 P.S. § 501. More importantly, however, the Commonwealth has a legitimate state interest in providing for a temporary judgment in favor of an employee who must earn the wages with which to provide for his or her daily needs from an employer who not only is potentially liable for the claim, but has himself or herself failed to provide the statutorily required insurance which ordinarily would serve as the assurance to the claimant that there would be adequate funds with which to satisfy the claim if the claimant ultimately prevails. Furthermore, the effect of
[ 369 Pa. Super. Page 642]
the temporary judgments authorized by § 931 is only to preserve the claimant's status as a lienholder, and does not allow the claimant to execute on the judgment unless and until it has been finally determined that the employer is liable for the claim. Because there is a reasonable basis for this statute, the Act does not substantively deny due process.
Appellant also argues that the statute denies him procedural due process because there is no provision in the statute for notice to the employer prior to entry of the judgment and because there is no provision for a hearing to determine the reasonable possibility of a judgment being rendered against the employer. "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). However, the procedures required by due process are not the same in all circumstances and depend upon the requirements of a particular situation. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). "The form which those procedural protections must take is determined by an evaluation of all the circumstances and an accommodation of competing interests." Eash v. Riggins Trucking Inc., 757 F.2d 557, 570 (3rd Cir.1985). To determine the extent of the procedures which are necessary, we must consider three factors: 1) the private interest affected by the official action; 2) the risk of an erroneous deprivation of the private interest as a result of the procedures used; and 3) the government's interest, including fiscal and administrative burdens, that additional procedures would entail. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Therefore, we must examine the temporary judgment statute involved here in light of these factors.
The private interest affected is the employer's interest in having no judgments recorded against him. To the extent the employer owns property, the effect of the temporary judgment is to place a lien on the property. Although the property cannot actually be taken by means of execution
[ 369 Pa. Super. Page 643]
until there has been a final determination of the employer's liability, the lien itself affects the employer's ability to alienate the property and may affect the employer's ability to use the property as collateral in other financial transactions. However, because a temporary judgment does not restrain an employer from all uses of his property such that he may continue to use the property to conduct his business, the interest affected has been minimized by the very terms of the legislation. Therefore, although there is a private interest affected by the temporary judgment act, the legislature has minimized the impact to the least extent possible in accordance with its legitimate interest in protecting the claimant's ability to actually receive compensation for the claim if it ultimately is determined to be meritorious.
The risk that an erroneous deprivation will occur is also minimal. The statute provides that a temporary judgment may only be obtained by an actual "employee" with a claim against an actual "employer." In sections 103 and 104 of the Act, the statute provides specific definitions of "employer" and "employee". Whether or not there is an employer/employee relationship for purposes of the Act depends on whether the facts establish that the common law master/servant relationship exists. 77 P.S. §§ 21 and 22. Therefore, when an alleged employer contests from the first opportunity either that he is not an employer within the meaning of the Act or that the claimant is not an employee within the meaning of the Act, then § 931 does not apply. Thus the possibility that an alleged employer will suffer the imposition of a temporary judgment for which he is subsequently determined not to be liable on the basis either that he is not the employer or the alleged employee is not an actual employee is avoided by the terms of the Act.
The only circumstances, then, in which an employer would be subject to an erroneous deprivation of his property interest due to the entering of a temporary judgment against him pursuant to § 931 would be where the claimant has made an unfounded claim. However, there is nothing
[ 369 Pa. Super. Page 644]
of record in this case from which we can determine the number or frequency of unfounded workmen's compensation claims in which temporary judgments are obtained against the employer. We therefore conclude that the risk of an erroneous deprivation is not substantial.
Finally, we must weigh the burden on the government which the additional procedure of notice and a hearing prior to the entry of the temporary judgment would have. The requirement of a hearing prior to entry of the temporary judgment would, at least in part, defeat the purpose of the statute. A prior hearing would postpone the opportunity for the claimant to become a lienholder, and thereby could substantially diminish the possibility that the claimant would be able to recover an ultimate, final judgment. Moreover, notice and a hearing prior to the entry of the temporary judgment would give the employer an opportunity to change the record ownership of his property in an attempt to make himself judgment-proof by the time that the temporary judgment could be entered. Furthermore, to provide a hearing in each case prior to entry of the temporary judgment would require allocation of scarce judicial resources in all such cases, even though judicial resources have already been allocated for hearing petitions to open in those cases in which the employer actually asserts a meritorious defense challenging the propriety of the temporary judgment. It would be an unnecessary burden on the Commonwealth to conduct a hearing prior to the entry of a temporary judgment in all cases, when there is a relatively expeditious procedure already provided for challenging the temporary judgment. We find the burden on the Commonwealth to be especially onerous in view of the fact that the private interest affected has already been minimized and that the risk of an erroneous deprivation is relatively small. Balancing the competing interests of the individual employer and those of the government, we conclude that due process does not mandate notice and a hearing prior to entry of a temporary judgment pursuant to 77 P.S. § 931.
Having concluded that the statute is constitutional and denies neither substantive nor procedural due process,
[ 369 Pa. Super. Page 645]
we now examine the effect of this conclusion on the case before us. In this particular case, at the time the temporary judgments were entered, there was nothing of record to indicate that the alleged employer was not in fact appellee's decedent's employer. Therefore, § 931 was applicable, and, on the face of the record, it was appropriate to enter the judgments. Because a judgment should be stricken only when there is a fatal defect on the face of the record, Malakoff v. Zambar, Inc., 446 Pa. 503, 288 A.2d 819 (1972), and Nobel Well Service, Inc. v. Penn Energy, Inc., 348 Pa. Super. 267, 502 A.2d 200 (1985), and because in this case, nothing on the face of the record precluded entry of the judgments, we affirm the trial court's order refusing to strike the judgments.
However, appellant alternatively requested that the judgments be opened. In support of this request, appellant contends that he was not an employer of the decedent within the terms of the Workmen's Compensation statute. As we have already discussed, it is entirely appropriate for an employer to challenge on the merits, the propriety of the temporary judgment by means of a petition to open. Because the trial court has not addressed the merits of appellant's petition to open, we will remand and direct the trial court to consider it.
Finally, we find no merit to appellant's argument that the trial court erred in not awarding him counsel fees. Inasmuch as the statute is constitutional, appellee did not act vexatiously or in bad faith, and therefore, we will affirm that portion of the trial court's order denying appellant's claim for counsel fees.
Those portions of the trial court's orders denying the petition to strike are affirmed; those portions of the trial court's orders denying counsel fees are affirmed. The case is remanded for consideration of appellant's petition to open. Jurisdiction relinquished.
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A memorial for a true fan
Published 12:47 pm, Monday, April 25, 2016
Katys brother, Tim, is a member of the team, and Katy attended all of the games. Coach Aaron Meinhold said the team wanted to do something to memorialize its biggest fan. The tree and rock came courtesy of Bad Axe Marble and Granite.


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Alla Balduina Hotel Rome: Find photos, reviews, information, amenities and compare prices for 5 stars hotels in Rome, Italy.
Alla Balduina Hotel Rome provides 5-star accommodation in Rome. It also features a lift.
Hotel description
Guests staying at the bed & breakfast can enjoy the stylish rooms that offer a ceiling fan, heating and a shared garden. Those staying in the rooms also have access to a shared bathroom.
Alla Balduina Hotel Rome provides breakfast each morning that guests can enjoy before venturing out to discover the surrounding region.
The bed & breakfast is close to Roma Balduina Railway Station, making it easy for guests to explore Rome and its surrounding areas. Circus Maximus, Pantheon and Spanish Steps are an easy car ride away.
Hotel features
Hair Dryer, Shower
Elevator / Lift, Multilingual Staff
Shared Bathroom
Availability and Prices
Booking Site
Room Type
Per room
Per night
Per night
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The Westin Excelsior Rome
Via Vittorio Veneto 125, Rome
Via Vittorio Veneto 125, Rome
J.K. Place Roma
Via di Monte d'Oro 30, Rome
Via di Monte d'Oro 30, Rome
Al Colonnato Di San Pietro Bed & Breakfast Rome
Viale delle Mura Aurelie 19, Rome
Viale delle Mura Aurelie 19, Rome
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text:
Beach Waves Gift Pack
Approximate weight including packaging 0.37kg
The perfect gift for a friend!
This beautiful gift pack features our favourite Beach wrapped soap in a 130g bar and the Beach hand cream. Everything is handmade in Noosa Queensland, Australia
Wholly Australian designed and made, Essense soap is a true plant oil soap made by artisans specialising in the old techniques of French style triple milled vegetable soap bars. The process produces soap that is completely uniform and smooth and is longer lasting than other types of soap.
The soaps are made using the highest quality soap base available; pure plant oil, palm kernel oil and enriched with glycerine and shea butter. The palm oil is ethically sourced from old growth palm oil plantations which in turn were previously rubber tree plantations.
Why not relax and enjoy the coastal fragrances of the beach?


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Motor Swap and Mount Questions
Just last night I picked up my "01" 4.6L Mustang Gt MOD motor that I am going to install into my "87" Wrangler project. The existing mounts that are on the frame had an older 351W motor bolted to it. In the pictures you can see the existing motor mounts that I have, the K-Frame from the Mustang that I have and the motor mount on the 4.6L motor. I am just starting to look at how I am going to make this work. Any ideas of how I can make this work with the parts that I have?? Anyone know of a company out there that makes custome frame to motor mounts that might work with the existing setup I already have on the Jeep frame?? Thanks for the help.
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Check in from 14h / Check out prior to 12h
Red Roof Inn Durham Triangle Park: Find photos, reviews, information, amenities and compare prices for 2 stars hotels in Durham, United States.
Red Roof Inn Durham Triangle Park offers a comfortable setting when in Durham. It is ideally positioned for guests wanting to discover the area's attractions.
Hotel description
Red Roof Inn Triangle Park Durham features an all-hours reception, plus luggage storage and a wake-up service. For added convenience, it offers a vending machine and a lift.
Equipped to ensure a comfortable stay, rooms at Red Roof Inn have a private bathroom, a flat-screen TV and a radio. Cable/satellite channels and a telephone are also provided.
Guests staying at the hotel can sit down to a unique dining experience at the on-site restaurant, ideally based for those who want to stay close by at mealtime. A wide selection of cafés and restaurants can also be found in the surrounding area.
Raleigh-Durham International Airport is a 15-minute drive from Red Roof Inn Durham Triangle Park. Duke University, University of North Carolina at Chapel Hill and North Carolina State Fair are within an easy car ride from the hotel.
Hotel features
Restaurant, Air Conditioned, Cable / Satellite TV, TV, En suite, Private Bathroom, Vending Machines
Elevator / Lift, 24 Hour Reception, Wake-up Service, Luggage Storage
Private Toilet
Availability and Prices
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Users who viewed Red Roof Inn Durham Triangle Park also viewed these 2 stars Durham hotels:
Extended Stay America Hotel University Durham (North Carolina)
3105 Tower Blvd, Durham
3105 Tower Blvd, Durham
Crossland Economy Studios Durham - Research Triangle Park
5008 NC Hwy. 55, Durham
5008 NC Hwy. 55, Durham
Holiday Inn Express Chapel Hill
6119 Farrington Rd, Durham
6119 Farrington Rd, Durham
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Ardi is a natural processed coffee under exporter's care. After being picked by hand it's dried on a raised bed in the sun for 3 weeks. Notes; Juicy Strawberry, Floral & Sweet.
This balanced blend was crafted to offer a sustainable relationships for two of our coffee partners. Enjoy this cup and know that your purchase has directly made a difference in a coffee growing community!
Grown on a small estate in the valley surrounding the city at the foot of a massive volcano, this coffee is arguably one of the finest coffees in Central America. Tasting Notes: Jasmine, Tropical Fruit, Brown Sugar
This Friend2Farmer Direct Trade coffee is located in Western Ethiopia's Limmu Kossa District, in the highlands of the Kebena forest. Purchasing coffee from this co-op will allow long- term economic sustainability for this farmer and his employees and protection of the endangered Kebena Forest.
Grown along the volcanic slopes and ridges of Lake Atitlan in South-Central Guatemala, this coffee is very delicate and subtle in its fruity sweetness. Cupping Notes: Floral Aroma, Chocolate, Lime.


text:
The MPLAB® Harmony Integrated Software Framework is a flexible, abstracted, fully integrated firmware development platform for PIC32 microcontrollers. It takes key elements of modular and object oriented design, adds in the flexibility to use a Real-Time Operating System (RTOS) or work without one, and provides a framework of software modules that are easy to use, configurable for your specific needs, and that work together in complete harmony.
Self-Paced Training
The material in these training modules exists elsewhere on this site in a general reference format. However, the training modules present it in an organized, step-by-step sequence to help you learn the topic from the ground up.
Projects and Examples
Frequently Asked Questions
Table of Contents
20th Annual
Microchip MASTERs Conference 2016
Register now - Deadline: July 29
JW Marriott Desert Ridge Resort-Phoenix, AZ


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A new antifreeze protein discovered in tiny snow fleas by Queen's University researchers may lengthen the shelf life of human organs for transplantation.
Drs. Laurie Graham and Peter Davies, from the Department of Biochemistry, found that the potent protein produced by the fleas to protect themselves against freezing is capable of inhibiting ice growth by about six Celsius degrees. This would allow organs to be stored at lower temperatures, expanding the time allowed between removal and transplant.
The results of the Queen's study, funded by the Canadian Institutes for Health Research (CIHR), are published today in the international journal Science.
Nancy Dorrance | EurekAlert!
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Topological insulators are currently the hot topic in physics according to the newspaper Neue Zürcher Zeitung. Only a few weeks ago, their importance was...
In recent years, lasers with ultrashort pulses (USP) down to the femtosecond range have become established on an industrial scale. They could advance some applications with the much-lauded "cold ablation" – if that meant they would then achieve more throughput. A new generation of process engineering that will address this issue in particular will be discussed at the "4th UKP Workshop – Ultrafast Laser Technology" in April 2017.
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Working with colleagues at Stanford and The Dow Chemical Company, researchers at the University of Illinois at Urbana-Champaign fabricated 3-D birefringent...
In experiments with magnetic atoms conducted at extremely low temperatures, scientists have demonstrated a unique phase of matter: The atoms form a new type of quantum liquid or quantum droplet state. These so called quantum droplets may preserve their form in absence of external confinement because of quantum effects. The joint team of experimental physicists from Innsbruck and theoretical physicists from Hannover report on their findings in the journal Physical Review X.
"Our Quantum droplets are in the gas phase but they still drop like a rock," explains experimental physicist Francesca Ferlaino when talking about the...
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May 27, 2016 - Industry News
Analysts contend that the crude oil supply-and-demand imbalance will be righted just as soon as the price climbs high enough to compel U.S. shale-oil drillers to again ramp up production.
Tags: Oil Prices, Commodity Prices, Trends
February 24, 2015 - Industry News
President Obama has vetoed the Keystone XL Pipeline Approval Act, which Congressional Republicans had sent to the White House earlier today.
Tags: Barack Obama, U.S. Congress, Oil Prices, Economic Conditions
December 9, 2014 - Industry News
The average cost of on-highway diesel continues falling as oil prices hit its lowest level in years, according to new U.S. Energy Department figures.
Tags: Oil Prices, Diesel Prices, Gasoline Prices
June 30, 2014 - Industry News
Diesel prices see a gain of one-tenth of a cent while regular-grade gasoline holds at last week's level. Crude oil prices are at their lowest in the past two weeks.
December 20, 2013 - Industry News
Less than a week after the U.S. House passed the budget deal agreed upon by both chambers, the Senate on Wednesday passed the bill that outlines spending levels for two years by a vote of 64-36.
Tags: Legislation, Oil Prices, Congress, Budget, Highway Funding
April 9, 2013 - Industry News
If a new U.S. Energy Department forecast holds true, diesel and gasoline prices during April through September should be the same as they were a year ago and will move lower into next year.
Tags: Oil Prices, Forecast, Diesel Prices, Gasoline Prices
February 19, 2013 - Industry News
The average U.S. cost of diesel has increased for the fifth straight week and is at its highest level since mid-August of 2008.
Tags: Oil Prices, Diesel Prices, Gasoline Prices, DOE
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Zuma Canyon Loop Trail is a 10.7 mile lightly trafficked loop trail located near Malibu, CA that features beautiful wild flowers and is rated as moderate. The trail is primarily used for hiking, nature trips, birding, and mountain biking and is accessible year-round. Dogs are also able to use this trail but must be kept on leash.
dogs on leash
mountain biking
nature trips
wild flowers
Directions from Agoura Hills, CA: Take US 101 / Ventura Freeway to Kanan Road. Head south on Kanan Road to reach Zuma / Trancas Canyons.
I loved the trail ... but the trail to do the loop is not well marked. The first time we went clockwise and ended up on the wrong trail and hikes 17+ mi. The second time we went counter clockwise and only had a small misstep and ended up hiking 14 mi ... great views though the hike back will be in full sun so bring water and start early.
• Great workout, the second big uphill climb kicked my butt a little in the full sun and heat - so bring lots of water
• if you start early like 7 or 8am you'll get a lot more morning shade to rest in but there's a lot more marine layer and cloud obscuring your view. Even starting at 9am, I think some of the "amazing" views were obscured
• to be honest, there are better views of the ocean from other hikes - you see a lot of houses and land first so it's not that great
• back end of the hike there's horses and poop from a horse tours ranch in the valley but it's not as bad as say, Will Rogers state park
Awesome hike. I am glad we went clockwise.
Good trail, we started in the parking lot and hiked up the main trail, once we got to the end of the trail we took it off trail and did some boulder scrambling up stream to the little dam, along the way we did see a few snakes and alot of humming birds, a lot of the trail was over grown even in the main parts, & there was a lot of poison oak & milk thistle, so make shur to wear long pants, my girl friend wore shorts and had a hard time all in all good trail would of loved to make it back to the Fall via boulder scrambling up stream but it was too over grown, next time i will take the edison road to the falls.. oh and it is use by alot of horse back riders so there was a lot of horse waste on the trail
This is an amazing trail. The views, especially on a clear day are just gorgeous! You can see the ocean, the mountains and you just feel like you are in another place.
The trail itself can be made as long or as short as you'd like. The Zuma Canyon loop is easy and you are in and out. But you can connect to other trails that make it worthwhile.
There isn't a lot of shade on this trail, so be sure to go early before it gets too warm.
We took our dog, dogs are allowed as long as they are on a leash.


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Bill Paxton
46 Fans
May. 17th, 1955
Born in
Fort Worth, Texas, USA
5' 11
Bill Paxton's Main TV Roles
Main Movie Roles2014 - Million Dollar Arm
2014 - Edge of Tomorrow
2014 - Nightcrawlers
2013 - 2 Guns
2013 - Red Wing
2012 - Haywire
2007 - The Good Life
2004 - Thunderbirds
2004 - Club Dread
2003 - Ghost's Of The Abyss
2003 - Spy Kids 3-D: Game Over
2003 - Résistance
2001 - Frailty
2000 - Vertical Limit
1998 - A Simple Plan
1998 - Mighty Joe Young
1997 - Titanic
1996 - Twister
1996 - The Evening Star
1995 - Apollo 13
1994 - True Lies
1993 - Indian Summer
1993 - Boxing Helena
1993 - Tombstone
1992 - One False Move
1992 - Trespass
1991 - The Dark Backward
1990 - Brain Dead
1990 - Navy Seals
1990 - Predator 2
1989 - Next of Kin
1989 - Slipstream
1987 - Near Dark
1986 - Aliens
1985 - Weird Science
1985 - Commando
1984 - Streets of Fire
1984 - The Terminator
1984 - Impulse
1981 - Stripes
Guest TV Roles
[Complete List]
Show Name
Characters Played
Ep Count
John Garrett
Himself - Host
Billy DeLuca
Narrator (US version)
Vic Romano
Ernie (Voiced)
Bill Paxton moved to Los Angeles at 18 where he found work in the film industry as a set dresser for 'Roger Corman's New World Pictures. He made his film debut in the Corman film Crazy Mama (1975) directed by 'Jonathan Demme'. Moving to New York, he studied acting under 'Stella Adler' at New York University.
After landing a small role in Stripes (1981), Paxton found steady work in low-budget films and TV. He also directed, wrote and produced award-winning short films including Fish Heads (1982) which aired on Saturday Night Live (1975). His first appearance in a 'James Cameron' film was a small role in The Terminator (1984) followed hard by his very memorable performance as Private Hudson in Aliens (1986) and as the nomadic vampire Severen in 'Kathryn Bigelow's Near Dark (1987). Bill also appeared in 'John Hughes' Weird Science (1985), as Wyatt's sadistic older brother Chet.
Although he continued to work steadily in film and TV, his big break did not come until his lead role in the critically acclaimed film-noir One False Move (1992). This quickly led to strong supporting roles as Wyatt Earp's naive younger brother Morgan in Tombstone (1993) and as Fred Haise, one of the three astronauts in Apollo 13 (1995), as well as in James Cameron's offering True Lies (1994).
- Attended Arlington Heights High School in Fort Worth, Texas. The same high school as 'John Denver' (qv) and 'Lee Harvey Oswald' (qv) (who left before he graduated).
- Has appeared in five films with 'Michael Biehn' (qv): _The Lords of Discipline (1983)_ (qv), _The Terminator (1984)_ (qv), _Aliens (1986)_ (qv), _Navy Seals (1990)_ (qv), _Tombstone (1993)_ (qv).
- Was the first choice as Robert Langdon in _The Da Vinci Code (2006)_ (qv). He turned the part down because he was already signed for _"Big Love" (2006)_ (qv). 'Tom Hanks' (qv) was cast for the film instead.
- Inducted into the Texas Film Hall of Fame during their annual induction gala at Austin Studios in Austin, Texas on March 9, 2007 for his career achievement in the motion picture film industry. The Texas Film Hall of Fame inductees are native-born Texans who have achieved excellence in their film career.
- Son of 'John Paxton (II)' (qv).
- Member of the 1980s rock band Martini Ranch. 'James Cameron (I)' (qv) directed a video for their song "Reach" featuring many Cameron alumni ('Kathryn Bigelow' (qv), 'Lance Henriksen' (qv), 'Jenette Goldstein' (qv)).
- He has earned the nickname "Wild Bill" among friends and co-stars for his apparently crazed sense of humor and his love for elaborate pranks.
- Co-authored and produced the short, Scoop (1983), which won a Honorable Mention at the 1983 USA Film Festival.
Related sites for this celeb
» BuddyTV
» TVGuide
» AceShowbiz
» Celebrity-Mania
» Zap2it.com
» BuddyTV
» TVGuide
» AceShowbiz
» Celebrity-Mania
» Zap2it.com


text:
Christopher Titus
- 'Elf -The Musical' At Shubert, John Waters Christmas At RidgefieldHartford CourantEast Ridge
- SDecision 2016spinalcolumnonline.comUnited States
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- September 17, 2015FOX 8 News Cleveland
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- SRiley named Administrator of the Yearspinalcolumnonline.com
- 15 Years Ago, 'Titus' Was Doing 'Louie' in a Time of 'Seinfeld'Forbes
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- TChristopher Titus to hit Chico on latest stand-up tourtheorion.com
- Ben Kaufman: 'Some College Punk' gears up for live comedy albumstatepress.com
- SWLCSD board elects new 2015 officersspinalcolumnonline.com
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- Weekend Round-up: Shake It Offcharlestoncitypaper.comIceland
- Chris Titus not afraid to laugh through the paintriblive.com
- SWalled Lake Administration Approves Hiring of New Staff, Recalls 18 Employeesspinalcolumnonline.com
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text:
In the industrial & commercial district of Fontvielle, the Thales building has an office in perfect condition with an unobstructed view.
Effective surface is 30 m2 (12 m2 toilet, 35 m2 of reception area + 30 m2 of passage/distribution in public areas.
This office consists of:
30 m2 effective ;
12 m2 toilet ;
35 m2 of reception room ;
30 m2 of passages/distribution in the common parts.
This document does not form part of any offer or contract. All measurements, areas and distances are approximate. The information and plans contained herein are believed to be correct, however, their accuracy is not guaranteed. The photographs show only certain parts of the property at the time they were taken. This offer is subject to change of price or other conditions, without prior notice.


text:
Former Bellwood Official Gets Probation For Stealing From VillageRoy McCampbell, who pleaded guilty to misdemeanor theft before Cook County Judge Timothy James Joyce, also was ordered to pay $100,000 in restitution, according to court records.
Man Gets 5 Years For Receiving Explicit Image Of 10-Year-Old GirlDaniel Santiago, 25, pleaded guilty in August to one count of knowingly receiving child pornography, according to the U.S. Department of Justice.
Ex-Redflex CEO Gets 30 Months For Aiding Red-Light Camera BriberyChicagoans are sick of watching elected officials walk through the revolving door of the Dirksen Federal Courthouse, a judge said Thursday. But, she noted: "It takes two to tango."
British Trader Pleads Guilty To Fraud Tied To 2010 "Flash Crash"Navinder Singh Sarao, 37, now faces a maximum of 30 years in prison after admitting to wire fraud and "spoofing."
Ex-Cook County Worker Admits He Embezzled From Flood Relief GrantBarry Croall, 47, collected kickbacks after arranging for companies to overbill for their services in the wake of severe flooding in 2008.
Mastermind Of CPS Contract-Rigging Scandal Pleads GuiltyGary Solomon pleaded guilty Tuesday to one count of honest services wire fraud in the courtroom of U.S. District Judge Edmond Chang.
Man Gets 25 Years For 2014 Murder During Drug Deal In AuroraA southwest suburban man was sentenced Thursday to 25 years in prison for shooting a man to death during a drug deal in Aurora in 2014.
Chicago Man Pleads Guilty To "Celebgate" Hacking ScandalEdward Majerczyk, 29, admitted hacking the emails of at least 30 celebrities.
Aurora Cousins Face Sentencing For Terror Plot On Guard BaseHasan Edmonds joined the Illinois National Guard a decade after terrorists attacked the United States on Sept. 11, 2001. Then, in the spring of 2015, he committed the ultimate betrayal of his fellow soldiers.
Father, Son, Who Scammed Schools Out Of Millions, Plead GuiltyA suburban father and son accused in 2014 of scamming public school district out of millions — only to post diamonds and rubies to get out of jail — pleaded guilty Tuesday to mail fraud.
Judge Orders Dennis Hastert To Report To Prison By June 22Former U.S. House Speaker Dennis Hastert has been ordered to report to prison by June 22 to begin serving a 15-month sentence in his hush-money case.
Mel Reynolds Changes His Mind About Guilty PleaFormer U.S. Rep. Mel Reynolds says he no longer wants to plead guilty to misdemeanor federal tax charges and that he's "sorry for any confusion."


text:
Business development manager ( 2 - 6 yrs)
Vertex Technologies
RS1,75,000 To 4,00,000Ahmedabad, Ahmedabad Cantonment, Vadodara
1.Good Knowledge of IT Marketing , Online Bidding and social media marketing 2.Must have basic Knowledge of Web technologies like Java, ASP.NET, PHP , open source & Mobile Application. 3.Should be responsible for Lead Generation, Online Bidding,...
Key Skills : business development,it sales executive,lead generation,online bidding,business development manager,marketing,sales,business...
Required Business Development Executive ( 1 - 2 yrs)
Infoways Media
RSNot DiscloseAhmedabad, Ahmedabad Cantonment, Bhavnagar, Gandhinagar, Jamnagar, Junagadh, Rajkot, Surat, Vadodara, Vidhyanagar
Very Good Opportunity to Join as Bde, in a Rapidly Growing It Company. the Company Requires 1-2 Years Experienced Business Development Executive Who Can Help in Growing Sales in Mutual Benefits of the Company as Well as Him/her. job Profile: ...
Key Skills : senior business development executive,business development executive,business development,business...
Sales & Marketing ( 1 - 3 yrs)
Phuphu Hills
RS70,000 To 4,00,000Amadalavalasa, Asifabad, Guntur, Visakhapatnam, AmbikapurPart-X-Cachar, Anand Nagar, Guwahati, Amarpur-Banka, Bhagalpur, Ahmedabad, Ahmedabad Cantonment, Ambala, Achabal, Srinagar, Adyar, Mangalore, Adoor, Kottayam
Looking for Competent Workers that Can Join Our Organisation. We are One of the Leading Hotels in Southern Thailand, Phuket Precisely and We Need Qualified Workers with Atleast a Year Experience.
Key Skills : electronic data processing,sales,marketing,business development
Marketing Manager ( 0 - 1 yrs)
Fusion Group
RS1,00,000 To 3,00,000Ahmedabad, Ahmedabad Cantonment, Bhavnagar, Bhuj, Botad, Chala-Valsad, Chalthan, Chanasma, Chandlodiya, ChhotaUdaipur, Dharampur, Mehsana, Rajkot, Surat, Vadodara, Vapi
We Work with Fortune 500 Companies all Over India to Help Promote Their Products and Brand Image, We Work with Clients to Increase Their Market Share and We are Looking for Marketing Manager.
Key Skills : sales,marketing,marketing manager,business development
Business Development Manager (For Training Center) ( 1 yrs)
3c International Consultancy
RS50,000 To 2,00,000Ahmedabad, Ahmedabad Cantonment, Ankleshwar, Bharuch, Rajkot, Surat
Job Description:- - to Make Strategic Business Planning, Advertising and Branding - to Maintain the Relation with the Professionals to Increase the Business - to Arrange the Successful Seminars in Collages - to Arrange the Database of Students fr...
Key Skills : business development,product development,application development,sales,marketing,direct marketing,telemarketing,telesales,direct sales
Not a member as yet ?
Register now to apply to these jobs
Insurance Sales(Religare)| Ahmedabad| Male | Exp.1-5Yrs | Rs.15k-23k PM ( 1 - 5 yrs)
Aasaanjobs Pvt Ltd
RS2,00,000 To 3,00,000Ahmedabad, Ahmedabad Cantonment
Job Duties : Acquiring equity, commodity and currency accounts by generating leads through banks tied up with Religare Cross selling life insurance, health insurance and mutual fund Client investment advisory and client servicing Planning and ex...
Key Skills : insurance sales,sales,marketing,business development
Empower Consultants Associate
RS90,000 To 2,00,000Ahmedabad, Ahmedabad Cantonment
The candidate must be good in communication skills i.e., Fluent in English Must. He / She must possess the Basic Knowledge of Ms. Office & ready to accept new challenges. One who is looking for growth must apply for this job.
Key Skills : sales executive,marketing executive,business development executive,customer sales executive
Required Business Development Manager ( 2 yrs)
Jay Maharaj Job Placement
RS1,75,000 To 3,50,000Ahmedabad, Ahmedabad Cantonment
Experience : Minimum 1-2 Years . Relevant Experience of Broking Needed. segment : Equity/ Currency/ Commodity opening : Ahmedabad remarks :local Resident of the Town Needed. We also Provide Incentive. We May Drop 1 Year Bond Condition. key Search...
Key Skills : currency,commodity,business development,sales,broking sales,business development head,business development manager,business developer,sales...
Executive - Business Development ( 1 yrs)
Prominent Consultant
RSNot DiscloseAhmedabad, Ahmedabad Cantonment, Surat, Vadodara, Mumbai, Mumbai Suburb, Thane, Chennai, Chennai Suburb, Erode
Job Responsibilities : - Required Minimum 1 years of Sales Experience, Real estate experience pref.or else from Finance or Banking Background. - Qualifications - MBA/ PGM/ PGDBA from Repute or Any Graduate - Responsible for the entire gamut of lea...
Key Skills : business development,sales,marketing,business development executive
Urgent Vacancy for Relationship Manager ( 1 yrs)
Virtual Enterprise
RS1,00,000 To 1,75,000Ahmedabad, Ahmedabad Cantonment
- Achieving the Business Targets Assigned in Terms Of, Generating Revenue, Acquiring Clients, Enhancing and Upgrading the Client Relationships - Profiling Customers and Suggesting Financial Products to Meet Customer Needs as per Their Risk Appetite...
Key Skills : wealth management,hni,mutual funds,trading,demat accounts,direct selling,sales,business development,marketing
Urgent Opening for Sales Executive ( 0 - 2 yrs)
Pratham Expert Services Private Limited.
RSNot DiscloseAhmedabad, Ahmedabad Cantonment, Rajkot, Surat, Vadodara
We are Looking for Sales Executive for a Good Growing Company. 1 Develop & Appoint New Business Dealers and Distributor to Increase Sales 2 Regular Market Visits 3 Travelling to New Markets for Development for Setting Up Business in the Speci...
Key Skills : Sales,Communication,Business development


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March 22, 2007
FRANK KELLY AND TODD C. RAY, AS TRUSTEES OF THE PLUMBERS AND PIPEFITTERS LOCAL NO. 520 PENSION FUND AND PLUMBERS AND PIPEFITTERS LOCAL NO. 520 ANNUITY FUND, PLAINTIFFS,v.W.G. TOMKO, INC., DEFENDANT.
Pending before the Court is Defendant W.G. Tomko Inc.'s Motion to Dismiss ("the Motion")(doc. 5) filed on November 15, 2006.
For the following reasons, the Motion (doc. 5) will be denied.
On October 20, 2006, Plaintiffs Frank Kelly and Todd C. Ray, as Trustees of the Plumbers and Pipefitters Local No. 520 Pension Fund and Plumbers and Pipefitters Local No. 520 Annuity Fund ("Plaintiffs") filed a complaint (doc. 1) against Defendant W.G. Tomko Inc. ("Defendant") in the United States Court for the Middle District of Pennsylvania. The action is brought pursuant to Sections 502(a)(3) and 515 of the Employee Retirement Income Security Act of 1974, as amended (29 U.S.C. § 1132(a)(3) and 1145)(hereinafter "ERISA") and the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended (38 U.S.C. § 4316)(hereinafter "USERRA").
On November 15, 2006, Defendant filed the instant Motion. The Motion has been fully briefed by the parties and is therefore ripe for our review.
In considering a motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6), a court must accept the veracity of a plaintiff's allegations. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996), our Court of Appeals for the Third Circuit added that in considering a motion to dismiss based on a failure to state a claim argument, a court should "not inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims." Furthermore, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also District Council 47 v. Bradley, 795 F.2d3 310 (3d Cir. 1986).
The Defendant, a mechanical contractor, is a signatory to a Collective Bargaining Agreement ("CBA") with Local Union 520. The union receives dues from individual members and, in exchange, provides union employment and benefits to its members. Pursuant to the CBA, the Defendant is obligated to contribute to the union's Pension and Annuity Funds (collectively "Funds") for each hour worked on behalf of its employees employed pursuant to the terms of the CBA.
On and before December 30, 2004, Robert P. Schuler ("Schuler") was employed by the Defendant under the terms of the CBA. The Defendant, pursuant to the terms of the CBA, submitted contributions to the Funds on behalf of Schuler for all work performed on and before December 30, 2004. Schuler received Orders ("Activation Orders") dated December 31, 2004 from the Commonwealth of Pennsylvania, Department of Military and Veterans Affairs, the Adjutant General, ordering Schuler to active duty as a member of his Reserve Component Unit for a period not to exceed 485 days. The Activation Orders directed Schuler to report to active duty on January 4, 2005. Schuler notified the Defendant of his receipt of the Activation Orders prior to his reporting to active duty on January 4, 2005. Schuler's last day of work for Defendant prior to reporting for active duty was December 30, 2004.
On or about June 15, 2006, Schuler received Orders ("Discharge Orders") from the Department of the Army advising Schuler that he would be released from active duty effective July 8, 2006. Schuler reported back to work for the Defendant on July 10, 2006. Since July 10, 2006, Schuler has been employed by the Defendant under the terms of the CBA. Since Schuler began work on July 10, 2006, Defendant, as required by the CBA began submitted contributions to the funds.
During the period of Schuler's activation, from December 31, 2004 through July 9, 2006 ("Period of Activation"), the Defendant did not submit any contributions on Schuler's behalf to the Funds. It is the contention of Plaintiffs that pursuant to USERRA, the Defendant was required to submit contributions on Schuler's behalf to the Funds during Schuler's Period of Activation. DISCUSSION:
I. Standing and Jurisdiction
A. ERISA Claim
As a threshold matter, we shall address the Defendant's argument that it is not a real party in interest to the CBA. It its brief, Defendant obliquely argues that "there is no indication that the Defendant became a party through execution of the Contract [CBA] inasmuch as the Contract [CBA], Exhibit 1, is not executed by the Defendant and Defendant asserts it is not bound by the terms of the Contract [CBA]." (Rec. Doc. 8 at 14). The Defendant also asserts that the CBA does not authorize any individual or trustee to bring a suit on behalf of the union or its members, and therefore the Plaintiffs are not appropriate parties.
The Defendant's argument that it is not a party to or bound by the terms of the CBA "inasmuch as the Contract [CBA] . . . is not executed by the Defendant" is clearly without merit. First and foremost, if the Defendant was not bound by or not a party to the CBA then it does not logically follow that, pursuant to the same CBA, the Defendant contributed to the Funds on Schuler's behalf while Schuler was employed there. Furthermore, as Plaintiffs submit, the Defendant has signed two Memorandums of Agreement and a Recognition/Joinder agreement, agreeing to be bound by the terms of the CBA and its successor agreement. (Rec. Doc. 9, Ex. A, Ex. B, and Ex. C). Accordingly, there can be no real dispute that the Defendant is bound by the CBA.
Plaintiffs bring the instant action in their capacity as trustees for the Funds. Section 1132(a)(3) of ERISA providees that:
(a) Persons empowered to bring a civil action
A civil action may be brought --
(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief
29 U.S.C. § 1132(a)(3)(emphasis added). Although the United States Court of Appeals for the Third Circuit has not directly spoken on the issue, district courts within the Third Circuit and courts of our sister circuits have held that an employee benefit plan does not have standing to sue in its own name under ERISA. See International Assoc. of Heat and Frost Insulators & Asbestos Workers Local Union No. 42 v. South Jersey Insulation Services, Inc., 2007 U.S. Dist LEXIS 5711, *6 (D.N.J. January 26, 2007); Plumbers & Pipe Fitters Local 159 v. Nor-Cal Plumbing, 185 F.3d 978 (9th Cir. 1999)(declining to find that ERISA plan itself had standing to sue under § 502 because it is not a plan participant, beneficiary or fiduciary); Keyes Martin & Company v. Purdential Bache Sercurities, Inc., 1991 U.S. Dist. LEXIS 10573, *10-11 (D.N.J. July 29, 1991)(holding that the language of §1132(d)(1) "does not authorize suits by benefit plans and they lack standing to sue for ERISA violations"); see also United Assoc. of Plumbers and Pipefitters v. Lewis Mechanical, 2006 U.S. Dist. LEXIS 80466, *3 (S.D. Miss. October 31, 2006)(holding that a union cannot be a participant or beneficiary, and where it has not set forth fats sufficient to show it is a fiduciary, lacks standing under ERISA). Trustees, however are considered fiduciaries under ERISA and therefore have standing to bring suit on behalf of employee benefit plans. See Winstead v. J.C. Penney Co., 933 F.2d 576, 579 (7th Cir. 1991)(holding that trustees of an employee benefit plan were "indisputably . . . ERISA fiduciaries" and therefore had standing to sue). Accordingly, we find it clear that the Plaintiffs, trustees of the Funds, have standing to sue on behalf of the Funds under ERISA.
II. Analysis
The Defendant moves this Court to dismiss the Plaintiffs' ERISA and USERRA claims, arguing that Schuler, a union member, is not an employee of the Defendant and therefore, the Plaintiffs are barred from recovery under ERISA.Plaintiffs submit that Schuler was an employee of the Defendant pursuant to the CBA, and therefore the ERISA and USERRA claims should not be dismissed.
Section 1145 of ERISA 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 such agreement.
29 U.S.C. § 1145. Section 4318 of USERRA delineates the nature of the pension benefits that a veteran employee is entitled to upon return and reemployment. Section 4318(b)(1) provides, in pertinent part:
An employer reemploying a person under this chapter shall, with respect to a period of service . . . be liable to an employee pension benefit plan for funding any obligation of the plan to provide . . . benefits . . . and shall allocate the amount of any employer contribution for the person in the same manner and to the same extent the allocation occurs for other employees during the period of service. . . For purposes of determining the amount of such liability and for purposes of section 515 of [ERISA] . . . service in the uniformed services that is deemed . . . to be service with the employer shall be deemed to be service with the employer under the terms of the plan or any applicable collective bargaining agreement. In the case of a multiemployer plan, as defined in section 3(37)f of [ERISA], any liability of the plan described in this paragraph shall be allocated --
(A) by the plan in such a manner as the sponsor maintaining the plan shall provide; or
(B) if the sponsor does not provide --
(i) to the last employer employing the person before the period served by the person in the uniformed services, or
(ii) if such last employer is no longer functional, to hte plan.
38 U.S.C. § 4318(b)(1).
As noted by the Plaintiffs, pertinent legislative history for §4318 is found at House Report No. 103-65. The House Report states, in relevant part:
Section [4318(b)(1)] is intended to provide a pension plan with a claim against the employer for amounts that may be required to fund obligations arising under this section. In the case of a multiemployer plan, this provision would enable the plan to pursue its existing remedies under section 515 of [ERISA], 29 U.S.C. § 1145, for failure to make the required contributions, in the event that neither the plan nor the collective bargaining agreement pursuant to which the plan is maintained provides for any such funding obligations.
H.R. 103-65 at 36.
It is clear from a reading of these statutes and corresponding legislative history, that the merits of Plaintiffs' claims depends on a singular issue: whether the Defendant is considered an "employer" for purposes of ERISA and USERRA. As directed by §4318(b)(1) of USERRA, whether the Defendant is an "employer" depends upon the applicable CBA.
We find that the terms of the CBAs do not support the Defendant's assertion that it was not Schuler's employer. The very language of the CBAs defines the Defendant as an employer:
2. WHEREAS, the Employer is engaged in the plumbing and pipe fitting industry throughout Central Pennsylvania, and is known as a "MECHANICAL CONTRACTOR" in the industry and in the performance of such work requires the services of competent, skilled and qualified journeymen and apprentices; and
3. WHEREAS, the Union is affiliated with the American Federation of Labor Congress of Industrial Organizations and has in its membership competent, skilled and qualified journeymen and apprentices to perform all work coming within its trade and craft jurisdiction; and
4. WHEREAS, the Employer and the Union desire to mutually establish and stabilize wages, hours, and working conditions for journeymen and apprentices employed with said Employer . . ." (emphasis added)
After reviewing the CBA language, the Defendant's argument that the Union is Schuler's actual employer flies in the face of the CBA and is clearly not availing.
It is apparent to the Court that the Plaintiffs have stated a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) and accordingly we shall deny the instant Motion.
1. The Defendant's Motion to Dismiss (doc. 5) is DENIED.
John E. Jones III United States District Judge
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