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CAPECCI v. LIBERTY CORPORATION. (01/02/62)

January 2, 1962

CAPECCI, APPELLANT,
v.
LIBERTY CORPORATION.



Appeal, No. 256, Jan. T., 1961, from judgment of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1956, No. 4273, in case of Anthony Capecci v. Liberty Corporation. Judgment affirmed.

COUNSEL

Norman Shigon, with him Gilbert I. Yaros, for appellant.

Francis E. Shields, with him David W. Scully, and Pepper, Hamilton & Scheetz, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.

Author: Jones

[ 406 Pa. Page 198]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

This appeal is from the entry of a judgment n.o.v. by the Court of Common Pleas No. 4 of Philadelphia County in an action in trespass for inducing a breach of an employment contract.

[ 406 Pa. Page 199]

Liberty Corporation (Liberty) is engaged in the manufacture, sale and distribution of mixed concrete in Philadelphia. Joseph Capecci, Inc. (Capecci) is a hauling concern, operating approximately 60 trucks, whose sole business is to haul mixed concrete from Liberty's manufacturing plant on Delaware Avenue in Philadelphia to contractors at various job sites in that city. The modus operandi of the business of both Liberty and Capecci is as follows: contractors telephone Liberty outlining their daily requirements and delivery schedule, Liberty then prepares a delivery schedule to accommodate the contractors and then contacts Capecci for the trucks necessary to meet the requirements. Capecci hauls exclusively for Liberty and Liberty delivers its concrete exclusively through Capecci. Capecci owns the trucks and chassis, while the concrete mixers, which are mounted on the trucks and known as "barrels", are owned by Liberty. Liberty pays Capecci according to the number of cubic yards delivered.

Although Liberty and Capecci are separate and distinct corporations, in the manner in which their respective businesses are conducted both are highly integrated. Despite the fact that Liberty has no employees engaged in hauling, Liberty joins with Capecci in labor negotiations with Teamsters Local 470, executed with Capecci the basic collective bargaining agreement in 1947, acknowledged a wage increase rider to that agreement in 1955 and is kept in touch with any changes contemplated in the labor agreement.

Anthony Capecci (appellant), whose brother is Capecci's president, had been employed as a truck driver by Capecci for upwards of 20 years and was its oldest employee from the standpoint of seniority. As a member of Local 470, appellant was a third party beneficiary to the labor contract executed by that Union, Capecci and Liberty. Capecci, which did all the hiring and firing of its employees through its secretary,

[ 406 Pa. Page 200]

    on August 21, 1955, notified appellant that he was discharged from Capecci's employ. Several days later, the Union held a meeting to consider the grievance arising from appellant's dismissal and the Union, under the provisions of the labor contract, referred to arbitration the propriety of the dismissal. After a hearing held before the arbitrator, Geoffrey Cunniff, ...


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