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FIORELLI v. KELEWER

February 9, 1972

Joseph Fiorelli et al., Trustees of Drywall Finishers Local No. 1955 Pension Fund, Plaintiffs
v.
George Kelewer et al., Trustees of Painters Pension Council # 21 Brotherhood of Painters, Decorators and Paperhangers of America, Defendants


Hannum, District Judge.


The opinion of the court was delivered by: HANNUM

HANNUM, District Judge.

 Presently before the Court is the defendants' motion to dismiss the complaint pursuant to F.R.C.P. 12(b) on the grounds, among others, that this Court lacks jurisdiction over the subject matter and the complaint fails to state a claim upon which relief can be granted.

 As set forth in the complaint, plaintiffs, collectively, constitute the trustees of Drywall Finishers Local No. 1955 Pension Fund (hereinafter, "plaintiffs") and sue in their official capacity. The defendants, collectively, constitute the trustees of the District Council #21 Painters Pension Plan of Philadelphia, Brotherhood of Painters, Decorators, and Paperhangers of America (hereinafter, "defendants"). The present litigation concerns the allocation of funds between both trusts.

 The District Council #21 Painters Pension Plan (hereinafter, "District Council Trust") was created on December 29, 1961 pursuant to a collective bargaining agreement entered into between District Council #21 and duly authorized representatives of Associated Master Painters and Decorators of Philadelphia, Inc. and other employers in the painting, paperhanging, and decorating industry. The trust agreement was made retroactive to May 1, 1960.

 On July 27, 1967, approximately five and one half years later, ninety-nine members of the various local unions comprising District Council #21 withdrew from their locals and transferred their membership to Drywall Finishers, Local No. 1955 (hereinafter "Local #1955") which was created pursuant to a charter issued by the Brotherhood of Painters, Decorators, and Paperhangers of America. Eighteen months later, on January 20, 1969, pursuant to a collective bargaining agreement between Local #1955 and duly authorized individuals acting on behalf of the Gypsum Drywall Contractors Association and others, the Drywall Finishers Local No. 1955 Pension Fund (hereinafter "Local #1955 Trust") was created. Much like the District Council #21 Trust after which it was patterned, the newly formed trust was to take effect retroactively -- in this case from May 1, 1968.

 During the eighteen month interval between the withdrawal of the membership of Local #1955 and the creation of the Local #1955 Trust, employers of the ninety-nine employees continued to make pension contributions. For the nine month interval from Local #1955's withdrawal until the retroactive effective date of its trust, employers continued to make regular contributions to the District Council #21 Trust pursuant to the original collective bargaining agreement. Thereafter to the present, employers of the ninety-nine have made their contributions to the Local #1955 Trust.

 A considerable period of time having lapsed since the foregoing transpired, plaintiffs instituted the present suit on March 31, 1971 to compel the defendant-trustees to relinquish that portion of District Council Trust's reserves attributable to contributions from employers of Local #1955's membership. Plaintiffs assert a cause of action arising under sections 301 and 302 of the Taft-Hartley Act (29 U.S.C. §§ 185 and 186) and section 401(a) (7) of the Internal Revenue Code of 1954, 26 U.S.C. § 401(a) (7). Their claims will be considered in that order.

 Subject Matter Jurisdiction

 Inasmuch as a direct violation of a federal statute has been pleaded and since the claim, with the exception of that portion asserted to arise under section 401(a) (7) of the Internal Revenue Code of 1954, does not appear immaterial to the law pleaded or "wholly insubstantial and frivolous", this Court has jurisdiction over the subject matter of the present litigation. Bell v. Hood, 327 U.S. 678, 682-683, 90 L. Ed. 939, 66 S. Ct. 773 (1946). The Court shall, therefore, proceed to consider the question of whether the complaint fails to state a claim upon which relief can be granted.

 Claim Upon Which Relief Can Be Granted

 Section 301 of the Taft-Hartley Act, 29 U.S.C. § 185, provides in pertinent part that:

 
"(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties."

 In their Complaint, plaintiffs simply assert that their cause of action "is brought under the provisions of Section 301 of the Act." From the facts as stated, defendants contend that plaintiffs have failed to state a cause of action within the purview of this section. The Court agrees. Necessary to the applicability of section 301 is the violation of a contract between an employer and a labor organization or between two or more labor organizations. Aside from the question of whether plaintiffs are parties properly cognizable under section 301, they have alleged neither the existence and breach of any collective bargaining agreement between an employer and a labor organization nor the breach of any contract between two labor organizations. In support of their position plaintiffs site Raymond v. Hoffmann, 284 F. Supp. 596 ...


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