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HOHLWEILER v. PENNSYLVANIA R.R. CO.

January 23, 1969

George H. Hohlweiler, Administrator of the Estate of Elford W. Richardson, Deceased, Plaintiff
v.
Pennsylvania Railroad Company et al., Defendants


Higginbotham, D.J.


The opinion of the court was delivered by: HIGGINBOTHAM

When Elford W. Richardson, the plaintiff now deceased, suffered a fracture of his right ankle while working as a railroad station cleaner on August 13, 1957, he loosed more than the bones of his right ankle. Indeed, Richardson's accident set loose a course of adversary activity and litigation which only now, more than eleven years later, shows signs of concluding.

 After retaining and then dismissing Lawrence J. Richette as his attorney, Richardson accepted a settlement agreement with his employer, the railroad, and for a consideration of $8,500 he signed a release before a notary public on May 14, 1958.

 Richardson thereafter returned to work for the railroad at his regular job and at other positions according to his Union seniority rights. Because of a hypertensive heart condition -- in no way related to his ankle injury -- Richardson was disqualified from performing his railroad duties, and he retired on a railroad disability pension in May of 1960. At that time he made no application for and received no light duty job.

 Richette, dismissed by Richardson prior to settlement with the railroad, initiated a state court action against the present defendants for wrongful interference with his one-third contingent fee contract with Richardson. Richette finally prevailed in the state Supreme Court, winning a $15,000 verdict ($10,000 compensatory damages and $5,000 punitive) on January 21, 1963. Richette v. Solomon, et al., . . . 410 Pa. 6, 187 A.2d 910 (1963).

 Richette was rehired by Richardson, and on August 7, 1963, he filed this suit on Richardson's behalf, seeking to overturn the five-year-old agreement between Richardson and the railroad.

 Jurisdiction was invoked under the Federal Employers' Liability Act, 45 USCA § 51 et seq., the Safety Appliance Act, 45 USCA § 1 et seq., and the Railway Labor Act, 45 USCA § 151 et seq. Plaintiff asked for more than $100,000 in damages on claims of fraud, conspiracy, and discrimination. On October 20, 1967 in accordance with Rule 25 of the Federal Rules of Civil Procedure an order was filed by this court, granting plaintiff's motion to amend the caption in this civil action to substitute for Richardson, now deceased, Mr. George H. Hohlweiler, administrator of the estate.

 The parties to this suit, which was heatedly contested and fully briefed are in agreement that the basic issue for decision is: Was the plaintiff Richardson defrauded by a conspiracy or otherwise of his right to a fair settlement for his ankle injury and/or of any right to a 3-G-1 so-called permanent light duty job?

 For reasons to be elaborated I find that the plaintiff has failed to meet his burden of proof, has failed to prove that plaintiff was defrauded of a fair injury settlement or of a right to a 3-G-1 job. Judgment is therefore entered in favor of each defendant.

 II. Findings of Fact

 1. Plaintiff Elford W. Richardson was an employee of the Pennsylvania Railroad Company and a member of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees during all times material hereto.

 2. Plaintiff George H. Hohlweiler is the administrator of the estate of Elford W. Richardson, and was substituted as a party to this civil action by an order of this Court filed on October 20, 1967 in accordance with Rule 25 of the Federal Rules of Civil Procedure.

 3. Defendant Penn-Central Transportation Company (hereinafter "the railroad") is the corporate successor to the Pennsylvania Railroad Company, one of the original defendants in this civil action.

 4. Defendant, The Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, (hereinafter "the union") is a labor union, certified as the collective bargaining representative of certain railroad employees, including Elford W. Richardson.

 5. Richardson suffered a broken ankle on August 13, 1957 while performing his duties as a railroad station cleaner. There is no evidence that any railroad cars or vehicles running on rails were in any way involved in Richardson's accident.

 6. Richardson underwent surgery at Presbyterian Hospital. There he was visited by the railroad claim agent, Shultz, who met Richardson's request and advanced him $250 for living expenses, this to be credited against the ultimate settlement of his case with the railroad.

 7. In March of 1958 Richardson sought the aid of the defendant union in settling his claim against the railroad. A fellow worker Bernard Spencer referred Richardson to Samuel Solomon, a member of the Lodge Protective Committee.

 9. Richette agreed to help Richardson get a fair settlement for his ankle injury and obtain a "light duty" 3-G-1 job.

 10. Paragraph 3-G-1 of the collective bargaining agreement then in effect between the railroad and the union provided in part as follows: "By agreement in writing between the Division Chairman and Superintendent of Personnel a disabled employee covered by the scope of this agreement may be assigned to a new position or vacancy, or be placed in an existing position without regard of his seniority or the seniority of any other employee provided he is capable of performing the service."

 11. Two days after Richardson signed a power of attorney with Richette, Solomon of the Lodge Protective Committee visited Richardson at home. Solomon argued that Richardson had made a mistake in retaining an attorney and sought to persuade him to revoke the power of attorney he had given to Richette. Solomon told Richardson that an attorney could not get him a 3-G-1 job and that so long as he ...


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