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decided: March 18, 1965.


Appeal from order of Court of Common Pleas of Allegheny County, Oct. T., 1959, No. 693, in case of Glenn C. Beebe v. Union Railroad Company.


Michael R. Stabile, with him Dennis C. Harrington, and McArdle, Harrington, Feeney & McLaughlin, for appellant.

Chauncey Pruger, with him Reed, Smith, Shaw & McClay, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Flood, J.

Author: Flood

[ 205 Pa. Super. Page 147]

Glenn C. Beebe brought this suit in assumpsit for loss of earnings in the sum of $8,673 against his employer, the Union Railroad Company. His complaint alleges that he had been injured in the course of his employment and, in an action brought under the Federal Employers' Liability Act, had obtained a verdict against the railroad on June 25, 1957; that from that date until November 4, 1958, the railroad "held him out of service without just cause" in violation of the contract existing between the railroad and the Brotherhood of Railroad Trainmen, the plaintiff's bargaining agent, which contract gave him "certain rights of seniority and other benefits", and also in violation of specific promises (that he was not putting his job in jeopardy by prosecuting the suit to recover for his injury and would be returned to work immediately) made by a claim agent and an attorney for the railroad. The court below, upon the defendant's motion, entered an order

[ 205 Pa. Super. Page 148]

    dismissing the complaint, holding: (1) the complaint did not allege facts showing a wrongful discharge, and therefore the National Railroad Adjustment Board had exclusive jurisdiction, precluding any state court remedy, (2) even if there was a wrongful discharge, the plaintiff was barred because he failed to show that he had exhausted his administrative remedies as required under Pennsylvania law, and (3) relief could not be based upon promissory estoppel because of any verbal promise made to the plaintiff by the defendant's agents since the collective bargaining contract made between plaintiff's union and the defendant railroad precluded any inconsistent individual arrangements between the railroad and a single employe.

The appellant argues that the court could not determine from the pleadings that he was not discharged, and that if he were discharged, the Railway Labor Act did not preclude suit in the state court. We agree with the court below that the plaintiff was not discharged and that, on the contrary, the pleadings affirmatively show that he did not "accept his discharge as final". See comment of Mr. Justice Black in Slocum v. Delaware L. & W. R. Co., 339 U.S. 239, at 244 (1950): "Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad's action in discharging him as final, thereby ceasing to be an employe, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases." We also agree with the holding of the court below that even if the plaintiff had been discharged, he could not bring suit under the law of Pennsylvania until he had exhausted his administrative remedies.

[ 205 Pa. Super. Page 149]

The Railway Labor Act, May 20, 1926, c. 347, § 1, 44 Stat. 577, as amended, May 24, 1949, c. 139, § 127, 63 Stat. 107, 45 U.S.C.A. § 151 et seq., provides in § 153(i) that "disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions . . . shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes."

The plaintiff bases his contention on Moore v. Illinois Central Railroad Co., 312 U.S. 630 (1941), which held that the Railway Labor Act did not bar an employe's suit for wages in a state court based upon wrongful discharge. The authority of that case, however, has been seriously weakened by later decisions.

It is true that the Moore holding was reaffirmed in Slocum v. Delaware L. & W. R. Co., supra, and in Transcontinental & Western Air, Inc. v. Koppal, 345 U.S. 653 (1953). But in the latter case, the court also held that, if state law so requires, the employe must show that he has exhausted his administrative remedies under his contract. The contract provided a grievance procedure "comparable to that . . . of the Railway Labor Act". The court held that since the contract was a Missouri contract and Missouri law required that the plaintiff first exhaust his administrative remedies, ...

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