The opinion of the court was delivered by: SCHOONMAKER
Joseph V. Moreschi, a citizen of Massachusetts, and General President of the International Hod Carriers', Building and Common Laborers Union of America, an unincorporated association, for himself and in behalf of the individual and collective members, officers, and constituted local unions thereof, sue the partnership known as the County Construction Company, the Somerset County Independent Construction Workers Association, and the Pennsylvania Construction Workers Association, both Pennsylvania corporations, for specific performance of a contract dated April 14, 1939, between the County Construction Company and the International Hod Carriers', Building and Common Laborers Union of America, whereby the County Construction Company agreed to employ on their construction work, no laborers but those who are members of said Union, and fixed the rate of pay, hours of work, and conditions of the employment.
The complaint charges that the County Construction Company has failed to carry out this contract, and that the defendants, their members, agents, aiders, and associates, by force and violence, ejected plaintiffs' members from the jobs of the County Construction Company in Somerset County, Pennsylvania, and prevented them from working on such jobs, as well as other jobs of a similar nature in Somerset County. As relief, plaintiff asks specific performance of this contract and an injunction to restrain defendants from preventing the Union to furnish labor, as required by the contract.
The defendant County Construction Company has answered the bill, admitting the contract with the plaintiff's Union, but denying any riotous or tortious conduct on its part; but admitting that conduct alleged in the bill had rendered the contract set out in the complaint useless, and if persisted in, such conduct will render the contract void and valueless; and that plaintiffs' Union will not be able to work thereunder. This defendant avers it is working on a highway contract made with the Pennsylvania Turnpike Commission, and by the terms of the contract it is provided that preference in employment of workmen be given to persons from the public-relief rolls; and that if the Construction Company wishes to employ union workers, they should be gotten from the local unions, but if not so furnished, workers are to be chosen from list of qualified workers submitted by local agencies designated by the United States Employment Service. This defendant further avers that in the course of the execution of the contract, disturbances arose between members of plaintiffs' Union, and non-union and unorganized laborers as described in the complaint; that this defendant did not participate therein, and is innocent of any unlawful act or breach of the contract; that such acts of violence were injurious to the interests of this defendant in the orderly prosecution of the public work; that by reason of these disorders, this defendant was temporarily unable to employ the necessary labor for the execution of the contract, and plaintiffs' Union was unable to supply that labor; and that by reason of such exigency the County Construction Company went into the open market and employed the necessary workers for the prosecution of the work.
The other defendants have filed a motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and have assigned as reasons therefor:
(1) That this court has no jurisdiction, because:
(b) The acts complained of are crimes of which this court would have no jurisction to try the defendants without a jury.
(c) The acts complained of are criminal, and this court will not enjoin the commission of crimes.
(d) The complaint alleges facts which set forth a labor dispute within the purview of the Act of Congress of March 23, 1932, (29 U.S.C.A. § 101 et seq.).
(e) No facts are alleged which bring this within this Act of Congress.
(f) The complaint set forth a labor dispute which is within the purview of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and the Pennsylvania Labor Relations Act of June 1, 1937, P.L. 1168, 43 P.S..Pa. § 211.1 et seq., which gives the respective Labor Relations Board exclusive jurisdiction of such controversies.
(2) There is no diversity of citizenship alleged in the complaint.
(3) The complaint should be dismissed by reason of scandalous matter alleged in Paragraphs 13, 14, 15, 16, and 17 of the complaint under Rule 11 of the Federal Rules of Civil Procedure.
(4) There is a similar suit pending in the Court of Common Pleas of Somerset County, Pennsylvania, brought by plaintiff against defendants as proposed corporations and their incorporators, in which that court denied plaintiffs a preliminary injunction.
(5) By reason of laches on the part of plaintiff there is no emergency which requires a ...