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SHIPLEY v. PITTSBURGH & L.E.R. CO.

September 18, 1946

SHIPLEY et al.
v.
PITTSBURGH & L.E.R. CO.



The opinion of the court was delivered by: GOURLEY

This is an action filed in the first instance by twenty-four (24) named plaintiffs against the Pittsburgh and Lake Erie Railroad Company, each of whom were employees of said Company, a Pennsylvania corporation. Said action is based under a written contract for services performed beyond their ordinary and routine responsibilities, and for such services they claim to be entitled to extra compensation under the provisions of the aforesaid contract, and a recognized universal custom which existed at the time the contract was executed and the services performed.

It is set forth in the complaint that said extra services were performed in the coupling of air or steam hose, or in the chaining and unchaining of cars, but the cause of action which was based on the chaining and unchaining of cars was withdrawn by the plaintiffs and an Order of Court has been duly signed which limits the right of recovery, if any, to the coupling of air or steam hose.

 In the action filed by the twenty-four (24) original plaintiffs against the defendant, as is disclosed by the complaint, a diversity of citizenship is alleged and each of the original plaintiffs has a claim in excess of $ 3,000. It is furthermore set forth that there is a common question of law or fact affecting the several rights of approximately one hundred fifty (150) employees of the Defendant Company. It is further set forth that a common relief is sought by each of the plaintiffs, to wit, a right of recovery for services performed which were not required by the contract executed with the defendant, and for which the plaintiffs are entitled to recovery on the basis of a nation-wide established, habitual and customary practice among railroads and their employees.

 Subsequent to the filing of said complaint, fifty-eight (58) additional named plaintiffs filed a motion for leave to intervene as party plaintiffs, in which it is set forth that each of said intervenors had been an employee of the Defendant Company during the period of time referred to in the complaint, and that each of them has a question of law or a question of fact in common with all of the plaintiffs who were parties in the original complaint. Although none of the plaintiffs in the motion to intervene satisfy the jurisdictional requirements of both diversity of citizenship and a claim in excess of $ 3,000, exclusive of interest and costs, the basis for the allowance of intervention is premised on the provisions of Rules 23 and 24 of the Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c.

 In addition thereto, the defendant has moved the Court to require the plaintiffs to submit a bill of particulars with respect to the plaintiffs' original complaint, and more particularly with respect to matters involving the dates and times when and where the plaintiffs performed the coupling of air or steam hose for which they are seeking compensation. Each of the questions has been duly argued before the Court, briefs have been presented, and a careful consideration and review has been given by the Court to the matters presented at argument and the various authorities cited in the respective briefs.

 The Court will first consider the motion filed by the defendant for a bill of particulars. In connection therewith, it is only necessary to make brief comment.

 This is true for at the time of argument the defendant requested that counsel for the plaintiffs make available such information as they have, or which they might be able to reasonably secure from each of the plaintiffs, as to the nature or extent of the employment of each of said plaintiffs which gives rise to the cause of action set forth in the complaint. Counsel for the plaintiffs expressed their willingness to make available such information which the Court believed proper and which it, therefore, directed. Although the records of the Defendant Company would show in detail the nature of the employment of each of the plaintiffs and the services performed during the period of time set forth in the complaint, it was believed that the defendant was entitled to any knowledge or information which any of the plaintiffs might have as to when the services were performed generally upon which the cause of action would be based. Fleming v. Smoot Sand & Gravel Corp., D.C., 41 F.Supp. 330.

 An appropriate order will, therefore, be filed by the Court in connection with the motion for a bill of particulars.

 The next question before the Court for consideration is more involved, and generally is expressed as follows: Where a class action has been filed, in which jurisdiction is based on the diversity of citizenship and amount involved being in excess of $ 3,000, does the Court have jurisdiction to permit the intervention of other claimants in the class as new plaintiffs under the provisions of Rules 23(a) Paragraph (3) and 24(b) of the Federal Rules of Civil Procedure, although there is no diversity of citizenship between the intervenors and the defendant, and the intervenors' claims are less than $ 3,000 in each instance?

 It is first essential to refer to the Federal Rules of Civil Procedure which are involved herein.

 'Rule 23. Class Actions.

 '(a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is

 '(1) * * *

 '(2) * * *

 '(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.'

 'Rule 24. Intervention. * * *

 It must first be borne in mind that the Federal Rules of Civil Procedure do not either extend or limit the jurisdiction ...


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