The opinion of the court was delivered by: WEBER
On August 24, 1976, while employed by defendant A & S Railroad, plaintiff was injured allegedly from the negligence of the defendant. On September 1, 1976, plaintiff was informed of his dismissal from A & S, being "dropped as unsatisfactory." On September 13, 1976, plaintiff's union submitted a notice of claim or grievance for wrongful discharge by A & S. Notification of disallowance of claim by the A & S was made on October 26, 1976. A conference between the union and the A & S regarding Hages' discharge occurred on November 1, 1976. The A & S reaffirmed its disallowance of Hages' claim.
A complaint was filed by the plaintiff in the Court of Common Pleas of Allegheny County, Pennsylvania, on November 17, 1976. Count I of the complaint alleged a cause of action under the Federal Employers' Liability Act seeking compensatory damages for alleged injuries received while working on August 24, 1976. Count II of the complaint sought compensatory damages for alleged common law wrongful discharge of Hages by the A & S since he was fired without just cause.
Defendant, the A & S, filed a petition to remove and at the same time a motion to dismiss Count II for lack of jurisdiction because the plaintiff failed to exhaust administrative remedies. Subsequently, plaintiff filed a petition to remand alleging the impropriety of removing an F.E.L.A. claim originally instituted in the state courts. Plaintiff contends that the administrative route has been complied with, therefore Count II should not be dismissed.
I. IS A NONREMOVABLE F.E.L.A. CLAIM REMOVABLE WHEN JOINED WITH AN INDEPENDENTLY REMOVABLE FEDERAL CLAIM?
The provisions of the general removal statute, 28 U.S.C. § 1441(c), permit the removal of an otherwise nonremovable claim when joined with a removable, separate and independent claim or cause of action. 28 U.S.C. § 1445(a) expressly prohibits removal from state to federal courts of F.E.L.A. cases in which the plaintiff has chosen to proceed in the state forum initially. In Gamble v. Central of Georgia, 486 F.2d 781 [5th Cir. 1973] the court stated that the purpose of § 1445(a) was to take F.E.L.A. cases out of the operation of the general removal statute. Gamble involved a wrongful death action removed to the federal court by an impleaded third-party defendant. The Circuit Court reversed the district court's denial of the plaintiff's petition to remand her F.E.L.A. claim to the state court.
Courts have allowed the removal of F.E.L.A. actions (and nonremovable Securities Act, 15 U.S.C. § 77v(a) and Maritime actions) under the theory that the statutory provisions are inapplicable if removal is under § 1441(c), i.e., where otherwise nonremovable claims are joined with separate and independent claims, removable if sued upon alone. Emery v. Chicago, 119 F. Supp. 654 [S.D.Iowa 1954]; United States Industries v. Gregg, 348 F. Supp. 1004 [S.D.N.Y. 1973], rev'd on other grounds, 540 F.2d 142 [3rd Cir. 1976] securities; Cunningham v. Bethlehem Steel, 231 F. Supp. 934 [S.D.N.Y. 1964] maritime claim.
The court in Emery, supra, a proceeding on a motion to remand to state court, stated that it rests upon the plaintiff whether to state a claim solely under the F.E.L.A. Act, prohibiting removal, or unite the F.E.L.A. claim with causes of action that are removable. When plaintiff adopts the latter course, defendant becomes entitled to exercise the right of removal conferred upon it by the removal statutes. This carries the entire case to the court. Since the federal court has concurrent jurisdiction over the F.E.L.A. claim, no questions may not be properly determined by the court. 1A, Moore, Moore's Federal Practice, para. 0.163]4.-4], 4.-71].
The Gamble case, although speaking in absolutes, was not dealing with the situation before us. Gamble discussed solely the propriety of removing an F.E.L.A. claim. Plaintiff had raised no independent removable claim with her F.E.L.A. claim, as is the case here, assuming a federal question is raised in Count II of the complaint.
Several cases have dealt with this problem and have found jurisdiction to exist. Moore's agrees, finding the statutory prohibitions of § 1445(a) to be inapplicable when removal is sought under § 1441(c). The petition for remand must be denied as to the entire case, the F.E.L.A. cause of action being cognizable under the court's pendant jurisdiction.
II. DOES COUNT II CREATE AN INDEPENDENTLY REMOVABLE CAUSE OF ACTION BY VIRTUE OF THIS COURT'S FEDERAL QUESTION JURISDICTION
Plaintiff claims that Count II of the Complaint does not raise a federal question permitting removal of this action. It is averred that Count II is premised on common law principles of contract, i.e., wrongful termination of contract. Plaintiff contends that because he has exhausted his administrative remedies prior to suit, he has properly taken his action to the state court. The defendant claims the action is properly removable since Count II raises a federal question.
The complaint alleges that during plaintiff's employment with the A & S, he was covered by a collective bargaining agreement and that he was wrongfully terminated from his employment in violation of that agreement. The construction and application of these agreements are federal questions and, therefore, properly removable to a federal district court since it has authority to decide such questions by virtue of the "arising under" jurisdiction conferred by 28 U.S.C. § 1331.
In International Association of Machinists v. Central Airlines, 372 U.S. 682, 83 S. Ct. 956, 10 L. Ed. 2d 67  six discharged employees brought suit in the federal district court against the airline claiming that the airline had refused to comply with the dispute procedure established under a collective bargaining agreement subject to the Railway Labor Act. The district court dismissed the action finding neither diversity nor "arising under" jurisdiction. The Fifth Circuit affirmed on the basis that the suit was simply a state created action to construe a contract. The Supreme Court reversed finding that a collective bargaining agreement mandated by the ...