Appeal from decree of Court of Common Pleas of Elk County, April T., 1973, No. 3, in case of International Union of Operating Engineers, Local No. 66, AFL-CIO v. Linesville Construction Company and Utility Constructors, Inc.
Daniel W. Cooper, with him Stanford A. Segal, and Gatz, Cohen, Segal & Koerner, for appellant.
Henry W. Ewalt, with him Reding, Blackstone, Rea & Sell, for appellees.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Pomeroy concurs in the result. Mr. Justice Manderino took no part in the consideration or decision of this opinion.
Linesville Construction Company [Linesville] is a corporation engaged in the construction business with offices in Linesville, Pennsylvania. International Union of Operating Engineers, Local No. 66, AFL-CIO [Union] is a labor organization engaged in representing employees in effecting collective bargaining agreements. Linesville and Union are parties to a collective bargaining agreement dated September 11, 1969, covering employees of Linesville who are members of Union. Section D of Article I of this agreement provides as follows: "That if and when Employer shall perform work covered by this Agreement under its own name, under the name of another, as a corporation, company, partnership, enterprise, or any combination, including a joint venture, this Agreement shall be applicable to all such work performed under the name of Employer or the name of any other corporation, company, partnership, enterprise, combination or joint venture."
On September 11, 1973, Union filed this action in equity in the Court of Common Pleas of Elk County complaining that Utility Constructors, Inc. [Utility] was engaged in constructing a pipe line in Elk County; that the owners of Linesville and Utility are one and the same, using the same equipment and personnel; that the construction being performed by Utility is work covered by the agreement existing between Linesville and Union; and that Utility was created by Linesville for the purpose of evading its obligations under its agreement with Union. Linesville and Utility were named defendants in the action and Union requested
the court to enjoin the defendants from continuing with the construction of the pipe line, referred to before, until the terms and conditions of employment provided for in the existing agreement between Union and Linesville were complied with. The complaint also requested the court to award Union damages from Linesville and such further relief as the facts warranted.
On September 24, 1973, Utility filed preliminary objections to the complaint*fn1 in the nature of a demurrer; a motion to dismiss for lack of equitable jurisdiction; a petition raising the issue of non-joinder of necessary parties; and a motion for a more specific statement. On October 9th, the trial court heard oral argument on the preliminary objections, at the conclusion of which counsel for both sides suggested that if a record were made this might aid the court in the disposition of the issues raised by the preliminary objections. The court gave its assent to this procedure. Witnesses were then called by Union and, upon completion of this testimony, counsel for Utility made an oral motion that its preliminary objections be sustained. The court then entered the following decree: "Now, October 9, 1973, after full consideration of the foregoing motion of counsel for defendants, testimony received on behalf of plaintiff, oral arguments and authorities cited, plaintiff's complaint is dismissed with prejudice and the Preliminary Objections filed by the defendant Utility Constructors, Inc., are sustained. Costs on the plaintiff."
Union filed a timely appeal from this decree, and on January 7, 1974, the court filed a brief memorandum in support of its decree. In this memorandum, the court indicated two preliminary objections to the complaint
were sustained: (1) the demurrer; and (2) the objection challenging equity's jurisdiction. In sustaining the demurrer, the court said, "the plaintiff failed to meet the burden of proof with respect to objection No. 1" [the demurrer], and then made reference to "the burden of proof ...