are alleged to have breached the agreement and rider by improperly deducting a 3.09 percent fuel surcharge from gross revenue before paying the drivers their wages, which is based upon a percentage of gross revenue.
Plaintiff filed grievances against defendants Strimbu, Interstate Systems, and Zeffiro on or about August 26, 1975 challenging the right of defendants to exclude the 3.09 percent fuel surcharge from the calculation of gross revenue. On or about October 9, 1975 the grievances were decided in favor of the defendant companies by the Western Pennsylvania Teamsters & Employers Joint Area Committee (hereafter referred to as "WPJAC"). Shortly thereafter, on approximately May 5, 1976, a similar grievance was filed by plaintiff against defendant Lakeshore Motor Freight. The Lakeshore grievance was unable to be resolved through the grievance procedure and culminated in a deadlock at the National Grievance Committee on September 22, 1976. The remaining defendants, Sentle Trucking, J. Miller Express, and John F. Scott, were the subject of grievances filed against all defendants on or about December 28, 1976. No action has ever been taken on the December 28, 1976 grievances.
All of the defendants moved for summary judgment. By Memorandum Opinion and Order dated March 28, 1979, this Court, finding the arbitration decisions to have been rendered in disregard of the essence of the collective bargaining agreements, entered summary judgment in favor of plaintiff and against defendants Interstate Motor Freight, Strimbu and Zeffiro. Finding the grievance procedures completely exhausted as to Lakeshore, resulting in a deadlock, this Court also entered summary judgment in favor of plaintiff against Lakeshore. Lastly, finding grievances lodged against defendants Sentle, J. Miller Express and John F. Scott to have been inadvertently disregarded by the WPJAC, this Court remanded the grievances to the WPJAC for an expeditious hearing. On April 2, 1978, defendants Lakeshore, Interstate Motor Freight, Sentle, Strimbu and Zeffiro timely filed a petition for reconsideration shortly thereafter followed by a supplemental petition for reconsideration. As so filed, the petition and supplemental petition are presently ripe for disposition.
PETITION FOR RECONSIDERATION
The basis of the defendants' petition for reconsideration is that the instant actions are barred by the statute of limitations. Suits challenging arbitration decisions are subject to a three-month statute of limitations. Siskey v. General Teamsters, Chauffeurs, Warehousemen & Helpers, Local No. 261, 419 F. Supp. 48, 50 (W.D.Pa.1976); International Brotherhood of Teamsters, Local Union No. 249 v. Motor Freight Express, Inc., 356 F. Supp. 724, 726 (W.D.Pa.1973). The action against defendants Strimbu, Interstate Systems, and Zeffiro was commenced on October 5, 1977, approximately two years after the WPJAC arbitration decision was rendered. Counsel for defendants Strimbu, Interstate Systems and Zeffiro, however, neglected to raise the bar of the statute of limitations in the motion for summary judgment resulting in the entry of summary judgment against defendants rather than for them. Attempting to rely upon the pleading of statute of limitations in their answer, defendants Strimbu, Interstate Systems, and Zeffiro seek reconsideration on that basis.
Tomalewski v. State Farm Life Insurance Company, 494 F.2d 882 (3d Cir. 1974) is authority for the proposition that defendants do not waive the statute of limitations defense where it is presented by the pleadings even if excluded from a summary judgment motion. Counsel for defendants should, however, be more careful in framing its future summary judgment motions. To offer numerous shallow reasons for summary judgment while a dispositive reason lies buried in the pleadings does not advance either the interests of justice or counsel's clients. In accordance with Tomalewski, this Court's previous entry of summary judgment against defendants Strimbu, Interstate Systems and Zeffiro will be vacated and summary judgment entered in favor of said defendants and against plaintiff for the reason that the actions against these three defendants were not timely filed.
The action against defendant Lakeshore Motor Freight Co. was started by a complaint filed on August 8, 1977, almost a year after the September 22, 1976 deadlock at the National Grievance Committee. While the action against Lakeshore does not challenge an arbitration decision since there was none, this Court believes that the policy of early settlement of labor disputes underlying the relatively short three-month statute of limitations is no less important where grievance procedures have been completely exhausted to a stalemate. If anything, the policy underlying the statute of limitations becomes more important under these circumstances. Accordingly, summary judgment previously entered in favor of plaintiff and against Lakeshore will be vacated and summary judgment entered in favor of Lakeshore and against plaintiff for the reason that the suit was untimely filed.
Defendant Sentle is also a named movant in the petition for reconsideration. As indicated previously, arbitration concerning Sentle has never taken place. It is therefore premature to consider any allegation concerning the statute of limitations. In the same position as Sentle are non-movant defendants J. Miller Express and John F. Scott. Accordingly, defendant Sentle's request for reconsideration will be denied.
SUPPLEMENTAL PETITION FOR RECONSIDERATION
Insofar as the supplemental petition for reconsideration requests relief already granted upon the petition for reconsideration to defendants Interstate Motor Freight, Strimbu, Zeffiro and Lakeshore, it is denied as moot. Insofar as the supplemental petition for reconsideration requests relief on behalf of Sentle, the Court has considered its contentions and finds them to be without merit. Accordingly, the supplemental petition for reconsideration will be denied as to all moving defendants. An appropriate Order will issue.
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