August 2007 – Judgment Entered In Mattress Suit
Times Record
August 2007
by Wenda Freeman
Judgment Entered In Mattress Suit
An area businessman with purported ties to a cult leader failed to respond to a lawsuit alleging he and others illegally sold high-end mattresses intended for donation, so a judgment as to his liability will be entered by default, a federal judge ruled last week.
Thomas Scarcello, believed to live in Moffett, was one of the original defendants named in the lawsuit, Tempur-Pedic International v. Waste to Charity Inc., filed in February in U.S. District Court in Fort Smith.
The mattress maker accused several groups and individuals of selling more than half of the 8,000 mattresses it had donated to aid people hit by Hurricane Katrina.
The plaintiff also stated that convicted felon and purported cult leader Tony Alamo is a “known associate” of Scarcello’s.
In April, Tempur-Pedic filed a second amended complaint adding Scarcello’s business, Action Distributors, as a defendant and detailing further allegations.
According to the lawsuit, Tempur-Pedic contracted with Waste to Charity, a New Jersey not-for-profit agency, to distribute its mattresses, slippers and pillows — with a stated retail value of $15 million — to charitable organizations working in storm-stricken areas.
The contract expressly prohibited selling the goods or distributing them for sale.
But Tempur-Pedic alleges in the April complaint that Waste to Charity and owner Jack Fitzgerald did sell and improperly distribute the goods. He allegedly sold 5,500 foot comforters for $7,400 and 490 mattresses for $49,000 to a warehouse in Bowling Green, Ky.
Fitzgerald also delivered 4,000 donated mattresses to Scarcello and Action Distributors, the complaint states.
Tempur-Pedic alleges that Scarcello owns or controls the same semitrailers that picked up five or six truckloads of the mattresses from Waste to Charity in Greenville, S.C., and delivered them either to his South Fourth Street warehouse in Fort Smith — where they remain parked — or to a Booneville warehouse that formerly housed the Ace Comb factory.
Tempur-Pedic’s April complaint states that the warehouse is owned by Sharon Ast-Kroopf-Hoffman and Elizabeth Mercado, both “believed to be espoused to Tony Alamo.”
Scarcello is alleged to have gone to the Booneville warehouse Feb. 5 in connection with a sale of 3,000 mattresses to an undercover operative for Tempur-Pedic. When the operative counted only 2,650 mattresses, one of the other defendants told him the missing 350 were in a warehouse in Fort Smith.
According to court documents, Tempur-Pedic filed a motion on June 28 reporting that it had attempted to serve Scarcello with a summons, a preliminary injunction and its second amended complaint on April 20, May 5 and May 10; that a warning order was issued by the clerk of court on May 22 and published in the newspaper May 27 and June 3; and that a certified mailing to Scarcello was returned “unclaimed” around June 18.
In response, the court issued a notice of default as to Scarcello.
Thursday, the court granted Tempur-Pedic’s motion for a default judgment with respect to Action Distributors’ liability in the case, stating that Scarcello as its agent had never responded or offered a defense to the lawsuit. According to Judge Robert T. Dawson’s ruling, the amount of damages will be determined at or before trial.