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CLIFF HOUSE BUILDING CORPORATION v. PLUMBERS UNION LOCAL 690 ET AL. (03/31/75)

decided: March 31, 1975.

CLIFF HOUSE BUILDING CORPORATION, INC. ET AL.
v.
PLUMBERS UNION LOCAL 690 ET AL., APPELLANTS



Appeal from order of Court of Common Pleas of Delaware County, No. 4728 of 1973, in case of Cliff House Building Corporation, Inc., and Donald Gaster v. Plumbers Union Local 690 and John J. Convery and James J. O'Neill.

COUNSEL

Robert G. Kelly, Jr., with him Kelly, Moran, Gallagher & Kelley, for appellants.

John W. Nilon, Jr., with him Carmen P. Belefonte, and Kassab, Cherry and Archbold, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Concurring Opinion by Hoffman, J. Jacobs and Spaeth, JJ., join in this concurring opinion.

Author: Watkins

[ 232 Pa. Super. Page 534]

This appeal is from the order of the Court of Common Pleas of Delaware County overruling Preliminary Objections of appellant to appellee's complaint.

This action is in common law trespass by appellee against appellants for losses allegedly sustained in the construction of a high rise apartment building in Chester, Penna.

The pertinent paragraphs of the complaint are:

"10. From or about July 1969 to present, by reason of Plaintiff's continued refusal to employ Local 690 plumbers and pipe tradesmen at said construction site as aforementioned, Local 690 and its members, together with Defendants, John J. Convery and James J. O'Neill, at all times acting within the scope of their agency and employment with Local 690, authorized and did picket plaintiff's high-rise construction site as aforementioned.

"11. In support of the picketing activity as aforementioned, Local 690 and its members, together with Defendants, John J. Convery and James J. O'Neill, at all times acting within the scope of their agency

[ 232 Pa. Super. Page 535]

    and employment with Local 690, unlawfully agreed and conspired to interfere with Plaintiff's existing contractual commitment with its suppliers, which interference Defendants knew would result in substantial delay in the completion of said apartment construction.

"20. From or about April, 1972 to present, by reason of Plaintiff's continued refusal to employ Local 690 plumbers and pipe tradesmen at said construction site as aforementioned, Local 690 and its members, together with Defendants, John J. Convery and James J. O'Neill, at all times acting within the scope of their agency and employment with Local 690, authorized and did picket Plaintiff's apartment construction site as aforementioned.

"21. In support of the picketing activity as aforementioned, Local 690 and its members, together with Defendants, John J. Convery and James J. O'Neill, at all times acting within the scope of their agency and employment with Local 690, unlawfully agreed and conspired to interfere with Plaintiff's existing contractual commitments with its suppliers, which interference Defendants knew would result in substantial delay in the completion of said apartment construction.

"23. As a result of said activities of Defendants as aforementioned, Plaintiff was required to substantially reduce construction at said site."

The appellants alleged by way of preliminary objection that the court below was without jurisdiction to hear the matter because the National Labor Relations Act as amended, § 798; Act 20 U.S.C. §§ 157 and 158, preempted the jurisdiction and placed it solely in the National Labor Relations Board.

The appellee also filed an unfair labor practice charge with the National Labor Relations Board because of the picketing.

[ 232 Pa. Super. Page 536]

With this we cannot agree under the circumstances of this case. The United States Supreme Court has recognized that the National Labor Relations Act, supra, does not pre-empt the State courts' jurisdiction where there was a threat of violence and imminent threats to the public order. United Construction Workers v. Laburnum Construction Corp., 347 U.S. 656 (1954); San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959).

In the case of United Construction Workers v. Laburnum Construction Corp., supra, the Court said at pages 663-64:

"Congress has neither provided nor suggested any substitute for the traditional state court procedure for collecting damages for injuries caused by tortious conduct. For us to cut off the injured respondent from this right of recovery will deprive it of its property without recourse or compensation. To do so will, in effect, grant petitioners immunity from liability for their tortious conduct. We see no substantial reason for reaching such a result."

It may ultimately be determined that the proofs may not sustain the allegations pleaded, in which event the court below will be compelled to determine this case does not fall into the exceptions set forth above. However, on the record as it now appears, the lower court is not ousted from jurisdiction to entertain the claim of appellee as to the well pleaded allegations of the complaint.

The order of the court below is affirmed.

Disposition

Order affirmed.

Concurring Opinion by ...


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