that he understood it. In the face of the foregoing -- the release was read to Richardson, he recognized it and identified his signature on it, he accepted a $7,025 check for it, and did nothing for more than five years to avoid the settlement -- in the face of these facts it is clear that plaintiff has not met his burden in seeking to set aside the Federal Employers' Liability Act settlement on the ground of fraud.
The plaintiff has sought to contend in various ways that the issues of liability and proper compensation for his injuries were litigated and settled in the Richette case, that fraud was there established. But a fraud practiced upon a lawyer to remove him from a case is not necessarily a fraud upon his client. As Judge Kirkpatrick observed in denying plaintiff's motion for a partial summary judgment (opinion filed October 13, 1965): "Obviously the causes of action in the two cases [ Richette and the case at bar] are not the same." Richardson's claim for damages for an injury to his leg is an "entirely different" cause from Richette's claim for damages for loss of a profitable contract for professional employment. Judge Kirkpatrick held that res judicata did not apply because the parties in the two actions were different, the causes of action were different and no privity existed between Richardson and Richette. This is the law of the case.
While the railroad is not entitled to lavish praise for excessive generosity in its settlement, nevertheless, the amount offered and accepted is neither so patently inadequate or so unreasonable as to be fraudulent on its face. There was uncontradicted medical testimony in this Court that Richardson suffered no permanent disability and therefore the settlement was for a fractured ankle and wage losses in the neighborhood of $3,000.
Plaintiff's effort to rescind the settlement of May 1958 is further hampered by the defenses of the statute of limitations and laches. Not until August of 1963, with the filing of the complaint in this action more than five years after the settlement, did Richardson attempt to repudiate the settlement. The statute of limitations under the Federal Employers' Liability Act is three years. 45 USCA § 56. But no further discussion is required as I have found on the merits that plaintiff has not met the burden of avoiding the release.
The Safety Appliance Acts have no application at all to this case because no railroad cars running on rails were in any way involved in Richardson's accident. See 45 USCA § 8; Johnson v. Southern Pacific Railroad Company, 196 U.S. 1, 49 L. Ed. 363, 25 S. Ct. 158 (1904), and Baltimore and Ohio Railroad Company v. Jackson, 353 U.S. 325, 1 L. Ed. 2d 862, 77 S. Ct. 842 (1957).
Richardson's claim under the Railway Labor Act is based on his failure to get a 3-G-1 so-called permanent light duty job. There is no evidence in the record that such a job was in fact available, or that Richardson was capable of handling a job that might fit under the 3-G-1 classification. Most important, under the terms of the collective bargaining agreement then in force a 3-G-1 job could only be awarded "by agreement in writing between the Division Chairman and Superintendent of Personnel." The Division Chairman testified in this Court that no one had ever approached her with respect to obtaining a 3-G-1 job for Mr. Richardson.
Jurisdiction over defendant brotherhood is based on the Railway Labor Act as interpreted in Steele v. Louisville & N.R. Co., et al., 323 U.S. 192, 65 S. Ct. 226, 89 L. Ed. 173 (1944). The Steele doctrine is expressed in the holding of that case that Congress has imposed "on the bargaining representatives of a craft or class of employees the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against them." 323 U.S. 192, at 202 & 203, 65 S. Ct. 226, at 232, 89 L. Ed. 173.
The Third Circuit Court of Appeals understood the Steele rule to be that: "a union which possesses the power to act for all employees of a bargaining unit has the corresponding duty to represent all the members of the unit fairly, impartially and in good faith without 'hostile discrimination.'" "In particular plaintiff must make a showing that the action or inaction of the statutory representative complained of was motivated by bad faith for the gravamen of the rule is 'hostile discrimination.'" Gainey v. Brotherhood of Railway and Steamship Clerks, 313 F.2d 318, at 322 & 323 (3d Cir. 1963).
Plaintiff has produced no evidence of hostile discrimination by the defendant union or any of its members directed against Richardson. No bad faith has been shown. Plaintiff's claim of a conspiracy between the railroad and the union to deprive Richardson of his rights is likewise unsupported by evidence. Thus, the judicial intervention required by Steele, supra, and reaffirmed in Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 89 S. Ct. 548, 21 L. Ed. 2d 519 (1969) is not warranted in this case by reason of plaintiff's failure to meet the Steele burden of proof.
Treating this case as a diversity case and looking to the substantive law of Pennsylvania, I find that the burden of proof again rests on the one who would avoid a release on the ground of fraud. Spritzer v. Pennsylvania Railroad Company, 226 Pa. 166, at 168, 75 A. 256 (1910); Keys v. Hanscom Brothers, 288 Pa. 389, at 392, 135 A. 860 (1927); Wilbert v. Pittsburgh Consolidation Coal Company, 385 Pa. 149, 122 A.2d 406 (1956). As elaborated above plaintiff has not met that burden.
Plaintiff's Findings of Fact 1, 3-5, 7-10, 12, 14-16, 20, 21, and 27 are affirmed. All other findings inconsistent with this opinion are denied.
All of Plaintiff's Conclusions of Law are denied.
Defendant railroad's Findings of Fact 1-4, 6-46 are affirmed. All other findings of fact inconsistent with this opinion are denied.
Defendant railroad's Conclusions of Law 1 and 4-11 are affirmed. 2 and 3 are denied as stated.
All of defendant Union's Findings of Fact are affirmed.
In light of the above findings of fact and discussion, I make the following conclusions of law.
IV. Conclusions of Law
1. Richardson's claim under the Federal Employers' Liability Act is barred by the valid and binding release that he executed in consideration of the $8,500 settlement agreement with the railroad.
2. There can be no union liability under the Federal Employers' Liability Act since the defendant union is not the plaintiff's employer.
3. There is no evidence upon which relief may be granted against the railroad or the union for any claim arising under the Safety Appliance Acts since these acts apply to cases involving trains, locomotives and railroad cars running on rails. Safety Appliance Acts 45 USCA § 1 et seq.
4. Plaintiff has failed to prove his charges of fraud, conspiracy, and discrimination.
5. The defendant union was not guilty of hostile discrimination toward Richardson and therefore is not liable to plaintiff under the Railway Labor Act. Railway Labor Act, 45 USCA § 151 et seq. Steele v. Louisville & N.R. Co., et al., 323 U.S. 192, 65 S. Ct. 226, 89 L. Ed. 173 (1944), and Gainey v. Brotherhood of Railway and Steamship Clerks, 313 F.2d 318 (3d Cir., 1963).
6. Treating this case as a diversity matter, I still conclude that plaintiff's claim is barred by the existence of a valid and binding release.
Judgment is entered in favor of the defendants, Penn-Central Transportation Company, and the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees.
And now this day of January 1969, on the basis of the above findings of fact and conclusions of law, it is hereby Ordered that judgment is entered in favor of each defendant and against the plaintiff. cordingly, section 459 guarantees him the right to get the benefit of time spent in service. In support of its contrary position, defendant cites various cases to us. Some of them in fact suggest the result we have reached here,
and others have been limited by a later decision of the same or of a superior court.
In any event, we have considered them all and, on these facts, they do not persuade us to a different result.
We wish to make clear the limited nature of our holding. We are not deciding that a returning veteran necessarily has a right to promotion under a collective bargaining agreement which, as in McKinney, spells out fitness and ability as criteria. Cf. Power v. Northern Illinois Gas Co., 388 F.2d 427 (7th Cir. 1968). We hold only that on these facts, where generally applicable pay increases are geared to years on the job and annual review is confined to granting the increase or discharging for unsatisfactory performance, plaintiff's advancement in pay depended "essentially upon continuing employment." Tilton v. Missouri Pacific R.R., supra, 376 U.S. at 179. We conclude, therefore, that "it was reasonably certain that [plaintiff's] advancement would have occurred," id. at 181, during the time he was in military service had he continued in defendant's employ instead. Accordingly, the spirit of the Act and the Court decisions construing it persuade us that plaintiff should be given that benefit now.
Defendant's principal argument in this court is that plaintiff is bound by the findings of fact of the district court, since they are not clearly erroneous. However, we are not required to place the key holdings of the district court into that category. Indeed, the facts are, for all practical purposes, not in dispute and largely stipulated; there were in fact no live witnesses at trial, since Sorkin's testimony was received by deposition. The key questions are fundamentally ones of law, or of mixed fact and law, e.g., construction of the phrase "like seniority, status, and pay" in the Act and of the term "experience" in the collective bargaining agreement. Accordingly, we see no need to discuss the application of the clearly erroneous rule.
Judgment reversed; the case is remanded with instructions to enter judgment in plaintiff's favor.