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May 3, 1971

Teamsters Local 513 et al., Plaintiff
Joseph Wojcik, Defendant

Luongo, J.

The opinion of the court was delivered by: LUONGO

Defendant, Joseph Wojcik, is the duly elected vice president and business agent of the plaintiff, Teamsters Local 513 (Union). On December 15, 1969, Wojcik pled guilty in state court to charges of possessing dangerous drugs (amphetamines) in violation of the Pennsylvania Drug, Device, and Cosmetic Act of 1961. 35 P.S. § 780-1 et seq.

 The Pennsylvania Act defines the terms "drug", "dangerous drug", and "narcotic drug" (§ 780-2) and provides penalties for violation of the Act (§ 78020). Violations are punished as misdemeanors except those relating to narcotic drugs, which are felonies. *fn1"

 Section 504(a) of the Labor-Management Reporting and Disclosure Act (LMRDA) provides that "No person who . . . has been convicted of . . . violation of narcotics laws . . . shall serve (1) as an officer, . . . or business agent . . . of any labor organization . . . ." It provides further that "No labor organization or officer thereof shall knowingly permit any person to assume or hold any office or paid position in violation of this subsection." Section 504(b) provides criminal sanctions for violation of § 504(a). 29 U.S.C. § 504(a) and (b).


 The declaratory Judgment Act, 28 U.S.C. § 2201, provides that in a case of "actual controversy" a federal court "may declare the rights and other legal relations of any interested person . . . whether or not further relief is or could be sought." A "controversy", as contemplated by Article III of the Constitution and the Declaratory Judgment Act, is one that is appropriate for judicial determination, i.e., one which is not of a hypothetical or abstract character, and which admits of specific relief through a decree of conclusive character, "as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 81 L. Ed. 617, 57 S. Ct. 461 (1937).

"The difference between an abstract question and a 'controversy' . . . is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 85 L. Ed. 826, 61 S. Ct. 510 (1941)." Golden v. Zwickler, 394 U.S. 103, 108, 22 L. Ed. 2d 113, 89 S. Ct. 956 (1969).

 Union alleges that it instituted the present action because it found itself on the horns of a dilemma. If it retained Wojcik as vice president and business agent, it might be subject to criminal prosecution under § 504(b). If, on the other hand, it removed Wojcik and if it were ultimately determined that the removal was wrongful, it might be liable to him for damages for loss of pay. Union concludes from these circumstances that there is a controversy between it and Wojcik.

 The asserted "controversy" between Union and Wojcik is whether the state conviction is for a violation of "narcotics laws" within the proscription of § 504(a). In my view there is no "controversy" between them on that point because their interests are not adverse. If the state conviction is for violation of "narcotics laws" both Wojcik and Union have already committed the alleged criminal act in that Wojcik has served as an officer and business agent, and Union has knowingly permitted him to remain in office, following conviction. On the other hand, if the state conviction does not come within the purview of § 504(a), neither Union nor Wojcik is in violation. Further, Union has asserted that it has no desire to remove Wojcik unless the state conviction requires it to do so. (Complaint, Par. 11) Under these circumstances, it is apparent that the interests of both parties to this alleged controversy will be served by a determination that the state conviction is not for violation of "narcotics laws", and it is equally apparent that the interests of neither will be served by a determination that it is. In my view, Union, under the guise of a "controversy" between it and Wojcik, is actually seeking an advisory opinion as to whether it and Wojcik are violating § 504(a) of the LMRDA -- and this in the absence from the record of a party with a real interest in that determination, the Secretary of Labor (29 U.S.C. §§ 521 and 527).

 The existence of an "actual controversy" between the parties is a jurisdictional requisite. The absence of such controversy here deprives this court of jurisdiction to declare the rights of the parties.


 Whether to grant or withhold declaratory relief in a particular case is a matter committed to the sound discretion of the district court. See A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 7 L. Ed. 2d 317, 82 S. Ct. 337 (1961); Brillhart v. Excess Ins. Co., 316 U.S. 491, 86 L. Ed. 1620, 62 S. Ct. 1173 (1942). If it be ultimately determined that there is a controversy within the meaning of the Declaratory Judgment Act sufficient to confer jurisdiction upon this court to grant the relief ...

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