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January 12, 1965

Frank FALSETTI, Plaintiff,
LOCAL UNION NO. 2026, UNITED MINE WORKERS OF AMERICA, an unincorporated association, and Pittsburgh Consolidation Coal Company, a corporation, now known as Consolidation Coal Company, a corporation, Defendants

The opinion of the court was delivered by: MARSH

MARSH, District Judge.

 On November 4, 1964, at the non-jury trial of this cause, we held that plaintiff's federally created *fn1" causes of action against his former employer (defendant, Consolidation Coal Company) and former Union (defendant, Local Union No. 2026, United Mine Workers) for alleged violation of his seniority rights under the governing collective bargaining agreement and for alleged breach of the duty of fair representation owed him by the defendant Union were barred by the six-year Pennsylvania statute of limitations, 12 Purdon's Pa.Stat.Ann. § 31. *fn2" Accordingly, we granted the defendants' motions for dismissal, made appropriate findings, and rendered judgment on the merits against the plaintiff. Plaintiff's motion for new trial challenges the propriety of the determination that the six-year state statute of limitations is applicable. He contends that state statutes of limitation are not applicable at all to causes of action derived from federal statutes governing labor-management relations, even though, as is the situation in this case, no appropriate federal statute of limitations exists. Plaintiff further contends that, even if state statutes of limitation may be so applied, under Pennsylvania law the six-year statute was sufficiently tolled during the pendency of prior state court litigation involving the same parties and issues, or, alternatively, that under Pennsylvania law the obligations allegedly breached by the defendants are of such a continuing nature that no statute of limitations may be invoked to bar plaintiff's claims however late he may choose to assert them. We reject all of these contentions.

 It is generally recognized that in a federal court action to enforce a federally created right or liability either at law or where the jurisdiction of law and equity is concurrent, the time limitation prescribed by the statute of the forum state is applicable if no limitation period is fixed by federal law and Congress has manifested no contrary intent. See, generally: 2 Moore, Federal Practice, para. 3.07; Annotation, 90 ALR 2d 265. While it is true that Fischbach & Moore, Inc. v. International Union of Op. Eng., 198 F. Supp. 911 (S.D.Cal.1961), purports to carve out a special exception to this general rule in the area of labor-management relations, we prefer to follow United Mine Wkrs. of America v. Meadow Creek Coal Co., 263 F.2d 52 (6th Cir. 1959), cert. denied 359 U.S. 1013, 79 S. Ct. 1149, 3 L. Ed. 2d 1038, and Reliford v. Eastern Coal Corporation, 260 F.2d 447 (6th Cir. 1958), cert. denied 359 U.S. 958, 79 S. Ct. 797, 3 L. Ed. 2d 765, which followed the general rule and held that state statutes of limitation applied to suits for damages based respectively on §§ 303 and 301 of the Labor Management Relations Act. *fn3" The latter cases are cited with approval while the Fischbach & Moore decision is criticized in a note at 76 Harv.L.Rev. 1306 (April, 1963). We agree with the defendants that, in the absence of an appropriate federal limitation, federal labor policy would be best effectuated by the application of compatible state statutes of limitation which permit commencement of such actions as this within a reasonable period after accrual of the cause or causes of action. The six-year Pennsylvania statute meets the specifications. As to plaintiff's contention that an exception to the general rule is indicated by the particular and appropriate solicitude that Congress has displayed for the rights of the laboring man, we might point out that state statutes of limitation have been uniformly applied to suits under the Civil Rights Act for violations of federal constitutional rights - the most precious rights that any American citizen possesses. See annotation at 98 ALR 2d 1160.

 Plaintiff's evidence reveals that he was "laid off" from his job by the defendant Company on January 8, 1954, purportedly in violation of his seniority rights under the governing collective bargaining agreement. Thereafter, he made extensive efforts through grievance representatives of the defendant Union to procure reinstatement to his job, but these efforts, for whatever reason, met with total frustration. Eventually, on August 6, 1956, he instituted an action in the Pennsylvania state courts against the defendant Company and various officers of the defendant Union. One month later his Union membership was involuntarily terminated. On June 3, 1960, the Pennsylvania Supreme Court filed an opinion disposing of that litigation. *fn4" Thereafter, and until he sought similar relief in this federal court on November 4, 1963, plaintiff slept on his rights.

 In our opinion, the Pennsylvania statute of limitations was not tolled by the pendency of the prior state court litigation, Di Sabatino v. Mertz, 82 F. Supp. 248 (M.D.Pa.1949); Spees v. Boggs, 204 Pa. 504, 54 A. 346 (1903); Brandmeier v. Pond Creek Coal Company, 26 Pa.Dist.R. 29 (C.P. Luzerne Co. 1917); 54 C.J.S. Limitations of Actions § 287, p. 345; 34 Am.Jur., Limitation of Actions, § 281, pp. 227-228, there being no applicable Pennsylvania statute protecting plaintiffs against such exigencies. *fn5" Nor is plaintiff's cause advanced by his contention that alleged wrongful conduct on the part of the defendants pursuant to a continuing tortious conspiracy is actionable so long as they have not properly rectified the injury inflicted. This is not the law. Garelick v. Goerlich's, Inc., 323 F.2d 854 (6th Cir. 1963); Baldwin v. Loew's Incorporated, 312 F.2d 387 (7th Cir. 1963); Park-In Theatres v. Paramount-Richards Theatres, 90 F. Supp. 727 (D.Del.1950), aff'd 185 F.2d 407 (3d Cir. 1950), cert. denied 341 U.S. 950, 71 S. Ct. 1017, 95 L. Ed. 1373; Helmig v. Rockwell Manufacturing Company, 389 Pa. 21, 131 A.2d 622, cert. denied 355 U.S. 832, 78 S. Ct. 46, 2 L. Ed. 2d 44.

 Plaintiff's cause of action for alleged violation of his seniority rights under the collective bargaining agreement clearly accrued on January 8, 1954, when he was "laid off" from his employment. While the evidence is such that it is more difficult to pinpoint the date that his cause of action for the Union's alleged breach of its duty of fair representation accrued, this had to be by August 6, 1956, when he commenced the state court action and asserted such a breach in his complaint filed therein. *fn6" The evidence does not substantiate plaintiff's contention that the defendants assumed any continuing obligations, duties or relationship toward the plaintiff after that date (and certainly not after September 11, 1956, when he was notified of his expulsion from the defendant Union). We do not believe that a plaintiff has a perpetual right to sue for violation of a fiduciary duty on the theory that, once undertaken, the fiduciary's duty and the fiduciary relationship last evermore - particularly when the suit is an action at law for damages. See: Sherwin v. Oil City National Bank, 229 F.2d 835 (3d Cir. 1956). In short, we are convinced that the statute of limitations has run on plaintiff's claims.

 An appropriate order will be entered denying plaintiff's motion for a new trial.

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