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July 11, 1955

PHILADELPHIA DRESS JOINT BOARD, An Unincorporated Association by William Ross, Trustee Ad Litem, affiliated with the International Ladies' Garment Workers' Union, 929 North Broad Street, Philadelphia, Pa.
Jesse J. ROSINSKY, Individually and trading as H. H. Rosinsky & Company, 2026 E. Hagert Street, Philadelphia, Pa

The opinion of the court was delivered by: LORD

The case is before this Court on plaintiff's Motion for Judgment on the Pleadings.

Prior to this motion, the plaintiff had filed a Complaint and Motion to Confirm Arbitration Award and Enter Judgment Thereon under authority of the Federal Arbitration Act of 1947, c. 392, 61 Stat. 669, 9 U.S.C.A. § 9, and Section 301 of the Labor Management Relations Act of 1947, c. 120, 61 Stat. 156, 29 U.S.C.A. § 185.

 The defendant filed Motions to Dismiss on the grounds of lack of jurisdiction and failure to set forth a cause of action. This Court denied defendant's Motions on March 2, 1955 on the authority of Tenney Engineering, Inc., v. United Electrical Radio & Machine Workers of America, 3 Cir., 1953, 207 F.2d 450. The defendant then filed his Answer to Plaintiff's Complaint and Motion, and added to the Answer a Counter-Claim to Vacate and/or Correct said Award. The plaintiff thereupon filed its Answer to the Defendant's Counter-Claim and a Motion for Judgment on the Pleadings.

 If material issues of fact are raised by the pleadings, a Motion for Judgment on the Pleadings must be denied. Edelman v. Locker, D.C.E.D.Pa.1946, 6 F.R.D. 272. This Court believes that in the present case no such issues of fact arise. Although defendant argues to the contrary, the issues of fact listed by defendant in his brief are really questions of law or, at most, immaterial questions of fact.

 To dispose of plaintiff's motion it is necessary to analyze the pleadings and exhibits filed in this matter. Plaintiff's Complaint alleges that plaintiff and defendant entered into a collective bargaining agreement providing for arbitration of grievances. It further avers that the Pennsylvania Superior Court had affirmed *fn1" an Order of the lower court *fn2" directing the defendant to arbitrate the grievances of the plaintiff under the contract. The Pennsylvania Supreme Court refused an allocatur, October 6, 1953. The parties then proceeded to arbitration. The Arbitrators found in favor of the plaintiff and directed defendant to pay the sum total of $ 45,169.81. The defendant refused to pay; accordingly this action was instituted.

 Authority to confirm this award and grant judgment thereon is conferred by the Federal Arbitration Act of 1947, supra. *fn3" All requirements of this Act have been complied with by plaintiff.

 The defendant in his Counter-Claim to Vacate and/or Correct the Award raised twelve matters as a defense. The substance of these defenses can be classified into two main groups as follows:

 (1) The Commonwealth Court directed arbitration of only two grievances, *fn4" whereas testimony was taken and awards made on four more grievances. The defendant claims to have been prevented from presenting testimony on these matters and thereby was deprived of a jury trial on the issue of whether there was a contract to arbitrate. Further, that the contract did not specifically provide for arbitration of these additional grievances.

 (2) The Arbitrator exceeded his powers and his conclusions were not supported by the evidence.

 At no time, does it appear, did the defendant object to the additional grievances, to the presentation of testimony in support thereof, or to their consideration by the Arbitrators. There is no indication that the defendant appealed to the State Court when these grievances were added. As an additional reason for holding this defense invalid, this Court (without further discussion) believes that the four added grievances are legitimate offspring of the original grievances listed in paragraphs 7 and 12 *fn5" of the 1940 Agreement.

 Defendant's request for jury trial on this matter is not merited, for the same reasons expressed by the Common Pleas Court in the initial judicial proceedings. Judge Sloane, in his adjudication on this point, properly said (pages 74a, 75a of plaintiff's Exhibit 'B'):

 The point most strongly urged by defendant is that he is entitled to a jury trial of the issue of his contractual relation with the Union before the question of enforcement of compulsory arbitration can be considered. In the equity case he requested a jury trial (under the provisions of the Act of 1907, P.L. 440, 12 P.S. § 1227) to determine whether he was bound by the collective bargaining agreement between the Union and the Association, or by an oral agreement between himself and the Union which he wants to show. Since the trial of this case the new Rules of Civil Procedure Governing the Action in Equity have become effective (July 1, 1952), and the above act has been suspended. However by Rule 1513 (12 P.S.Appendix) the court may, on its own motion or upon petition of any party, submit issues of fact to trial by jury. The jury's verdict must be in the form of answers to specific questions and is not binding on the court. In the chancellor's view of the present situation, such a submission would be without point, since the evidence defendant wishes to offer must be rejected and thus would not even get to the jury. There would be nothing for them to decide, for we hold as a matter of law that testimony as ...

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