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WILLIAM SCHENA AND RAYMOND SERAFINI v. LESTER SMILEY (04/12/79)

decided: April 12, 1979.

WILLIAM SCHENA AND RAYMOND SERAFINI,
v.
LESTER SMILEY, JR., AND INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 66, A, B, C, AFL-CIO, APPELLANTS



No. 55 April Term 1978, Appeal from the Order of July 26, 1977 of the Court of Common Pleas of Clearfield County, Pennsylvania, Civil Division, at No. 77-879 C.D. - In Trespass.

COUNSEL

Stanford A. Segal, Pittsburgh, for appellants.

William Caprio, III, Williamsport, for appellees.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and He. Cercone, President Judge, concurs in result. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision in this case.

Author: Spaeth

[ 265 Pa. Super. Page 251]

This is an appeal from an order of the lower court dismissing appellants' preliminary objections to appellees' complaint in trespass. The issue is whether the lower court had subject matter jurisdiction over the cause of action alleged or whether its jurisdiction was preempted by virtue of the federal law of labor relations.*fn1

In 1969, appellants attempted to organize the employees of Treasure Lake, Inc. During the organizational campaign Treasure Lake discharged a number of employees; appellees were discharged on May 23, 1969, and fourteen other employees were discharged on June 20. On September 4, 1969, appellants filed with the National Labor Relations Board an action claiming that in discharging employees Treasure Lake had committed an unfair labor practice. On September 30, and on several occasions thereafter, appellees asked appellants whether their names had been included in the unfair labor practice action. Appellees allege -- and on demurrer we take the allegations as true -- that appellants promised them that their names would be included.

The unfair labor practice action was heard by an Administrative Law Judge, who ordered one employee reinstated. On appeal the NLRB ordered thirteen more employees reinstated, and awarded back pay and interest to all fourteen reinstated employees. On January 26, 1972, the United States Court of Appeals for the Third Circuit affirmed. The fourteen employees thus reinstated and awarded back pay were those employees who had been discharged on June 20, 1969. Appellees had in fact not been included in the action, and so were not either reinstated or awarded back pay. By the time appellees discovered that they had not been included in the action, the statute of limitations for filing their

[ 265 Pa. Super. Page 252]

    own action against Treasure Lake with the NLRB had run.*fn2 Alleging negligence*fn3 on the part of appellants in not including their names in the action, appellees brought the present action in trespass, demanding damages of $49,345.00*fn4 and punitive damages of $98,690.00.

The basis of appellants' jurisdictional preliminary objection to the complaint*fn5 may be summarized as follows: to recover from appellants, appellees must prove that in discharging them Treasure Lake committed an unfair labor practice;*fn6 under the National Labor Relations Act, whether an employer has committed an unfair labor practice is a determination exclusively within the jurisdiction of the NLRB; therefore, the lower court lacked subject matter jurisdiction of appellees' complaint. In dismissing appellants' objection*fn7 the lower court stated:

[ 265 Pa. Super. Page 253]

While it is true that were this a claim to remedy an unfair labor practice, this Court would have no jurisdiction, and while it is further true that in order to recover in this case Plaintiffs must prove an unfair labor practice to establish damages nevertheless, this Court is of the opinion that jurisdiction properly lies here. This in an Action in Trespass seeking recovery for the wilful or negligent conduct of the Defendants, and the alleged loss resulting therefrom. It is not an action to cure an unfair labor practice, although proof of such is an element in the Plaintiffs' case. Defendants admit that it is now impossible for the Plaintiffs to proceed on their own before the NRLB and to obtain their remedy in that manner, although they are within the Statute of Limitations to proceed in the above action. Therefore, the Plaintiffs only possible remedy is as set forth above, and if they are correct in their pleadings, a legally redressible situation exists.

To hold that the Plaintiffs do not now have the right to proceed because an element of their proof involves an unfair labor practice, which in and of itself does not fall within the jurisdiction of this Court, would effectively deny them the right to be heard on their claim. Therefore, this Court is of the opinion that the proof of the unfair labor practice is only important as it bears on the damages sustained by the Plaintiffs in the event they are able to prove liability on the part of the Defendants. The suit itself is not based upon an unfair labor practice, but upon an alleged tortious act by the Defendants over which this Court has jurisdiction. Thus, this Court dismissed Defendants' Preliminary Objections as to jurisdiction.

Lower Court Opinion at 2-3.

In San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), the Supreme Court of the United States established the following rule for determining whether the ...


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