'Section 18.1. Either party may submit an unresolved grievance or dispute to an Impartial Arbitrator, mutually agreed upon under the rules and through the facilities of the American Arbitration Association. The decision and award of the arbitrator shall be final and binding upon both parties. The arbitrator shall have no authority to change, add to, or subtract from any of the provisions of this Agreement.
'Section 18.2. The cost of the Impartial Arbitrator and the services of the American Arbitrator Association shall be shared equally by the parties. All other cost incidental to the Arbitration proceedings shall be borne by the party incurring the debt.'
The basis for plaintiff's complaint is the failure of the defendant to submit certain grievances to the American Arbitration Association in breach of the above agreement. In its answer, the defendant admits all of the allegations save one and sets forth therein that plaintiff is not entitled to arbitration because it failed to comply with the grievance procedure as spelled out in Article XVII. Admitting, for the purpose of the motion, the truth of defendant's allegation in its answer,
only one issue is presented by the pleadings. Did the plaintiff follow the grievance procedures provided for in Article XVII?
Clearly, under the type of agreement in effect here, such a question should be determined by the arbitration panel and is not a question for the courts. Mack Mfg. Co. v. International Union, 1951, 368 Pa. 37, 81 A.2d 562, 565, wherein it was states:
'The grievance, however, is one contemplated by the agreement between the parties and therefore it is for the arbitrator to determine not only the substantive rights of the parties, but compliance with proper procedural steps as well, since the procedure is also fixed by the agreement and there is a dispute over the interpretation of the agreement in that respect.'
Also see, Insurance Agents, etc., v. Prudential Ins. Co., D.C.E.D.Pa.1954, 122 F.Supp. 869; Post Publishing Co. v. Cort, 1956, 334 Mass. 199, 134 N.E.2d 431; Wilson Bros. v. Textile Workers, D.C., 132 F.Supp. 163, appeal dismissed 2 Cir., 224 F.2d 176, certiorari denied 350 U.S. 834, 76 S. Ct. 70, 100 L. Ed. 745.
It is the contention of the defendant, however, that the matter before the Court is not one of procedure, but rather one as to the existence of subsequent oral modification of the agreement and as such should be determined by the Court. Goldstein v. International L.G.W.U., 1938, 328 Pa. 385, 196 A. 43. Defendant states that it believes the plaintiff will assert the oral agreement at arbitration. It is our opinion that this matter is not before the Court at this time. Plaintiff's complaint makes no allegations of a subsequent oral agreement and defendant's answer conspicuously avoids this point. It is apparent to the Court that this question is not in issue in this controversy. To deny the plaintiff's motion on the ground that defendant 'believes' plaintiff is relying on something not evidenced by the pleadings would render the provisions of Rule 12(c), Fed.Rules Civ.Proc. 28 U.S.C. meaningless.
Defendant raises a further point in opposition to this motion. It states that because, for the purposes of this motion, the defendant's allegations are deemed admitted, there no longer exists a controversy as to whether plaintiff followed the grievance procedure. With this reasoning we cannot agree, for to do so would be determining the ultimate issue to be decided by the arbitration panel and in a case such as this, a party could nver get a judgment on the pleadings.
The motion is therefore granted, with the limitation that the question of a subsequent oral contract cannot be considered by the arbitration board.