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WILLIAM KOENIG v. INTERNATIONAL BROTHERHOOD BOILERMAKERS (11/07/80)

filed: November 7, 1980.

WILLIAM KOENIG, APPELLANT,
v.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO AND BOILERMAKERS LOCAL LODGE NO. 5. ROBERT BROMMAGE, APPELLANT, V. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO AND BOILERMAKERS LOCAL LODGE NO. 5



No. 571 October Term 1979, No. 572 October Term 1979, Appeals from the Orders of the Court of Common Pleas, Montgomery County, Civil Action, Law, at #78-11460 and 78-11461.

COUNSEL

Barry R. Elson, Philadelphia, for appellants Koenig (in No. 571) and Brommage (in No. 572).

Bruce R. Endy, Philadelphia, for appellees.

Spaeth, Cavanaugh and O'Kicki, JJ.*fn* Cavanaugh, J., files a dissenting opinion.

Author: Spaeth

[ 284 Pa. Super. Page 562]

These are consolidated appeals from orders sustaining appellee Boilermakers Local Lodge No. 5's preliminary objections and dismissing appellants' complaints for lack of jurisdiction, and also, in the alternative, on the ground of forum non conveniens.

Accepting as true, for the purposes of this inquiry, all well-pleaded facts, Frisch v. Alexson Equip. Corp., 423 Pa. 247, 224 A.2d 183 (1966), we may summarize appellants'

[ 284 Pa. Super. Page 563]

    amended complaints*fn1 as follows. Appellants are New York residents, and at all times material to their cause of action were members in good standing of appellee, which is an unincorporated association organized and existing under New York law, with its principal office located in Great Neck, New York, and affiliated with and governed by the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers AFL-CIO, also a defendant below. One George Boylan served as appellee's Business Manager at all times material to appellants' cause of action. On July 27, 1972, appellant Koenig was hired by Boylan as appellee's Assistant Business Manager and occupied that position until May 25, 1978, when he was discharged by Boylan. On February 14, 1977, appellant Brommage was hired as appellee's Assistant Business Manager and occupied that position until May 25, 1978, when he was discharged by Boylan. Appellants' employment agreements with appellee specified that their weekly salary should be equal to the base pay of General Foreman as provided in appellee's construction agreement, and that they were entitled to an allowance of $20 per day, an allowance of $75 per day for official out-of-town business, and the use of a car. While employed, both appellants received considerably less pay than the employment agreements specified. Although they both made frequent out-of-town trips on official business, including trips to Willow Grove and other points in Montgomery County, Pennsylvania, for the purpose of attempting to organize employees and to attend meetings as union trustees of the Boilermakers Medical Plan, they did not receive $75 a day for their expenses. Appellant Brommage "reasonably believes" that he made 50 out-of-town trips for which he was not reimbursed, while appellant Koenig "reasonably believes" that he made 100 such trips. Appellants were also not provided with a car, they were not paid a $20 daily allowance for working a sixth day of a

[ 284 Pa. Super. Page 564]

    week, and they did not receive various welfare, pension, vacation, and annuity benefits to which they were entitled.

Appellee filed preliminary objections to appellants' complaints, as did the International. Appellee's preliminary objections included a "Petition Raising A Question of Jurisdiction and Service", which stated:

1. At all times relevant to the instant litigation [appellee] has been and is an unincorporated labor organization with its principal office at 320 Northern Boulevard, Great Neck, New York.

2. The [appellee] has not been personally served with the Complaint pursuant to Rules 1009 and 2157 of the Pennsylvania Rules of Civil Procedure, 42 Pa.C.S.A. §§ 1009, 2157 and this Honorable Court does not have jurisdiction over the person of the [appellee].

3. Service of the Complaint was attempted by having a copy served upon Boilermakers Local # 13, located in Newportville, Bucks County, Pennsylvania. However, no statute or rule of court authorizes service of process upon a sister local union which has no connection with [appellee] except that they are affiliated with the same International Union.

4. Affiliation with the International Union is governed by the International Constitution, (a true and correct copy of which is attached hereto as Exhibit "A").

5. No local union is authorized to act as agent for or accept service of process on behalf of any sister local. WHEREFORE, [appellee] requests this Honorable Court to dismiss the [appellant's] complaint for lack of personal service.

Appellants filed no answers to these preliminary objections and therefore admitted the well-pleaded facts. See The Union National Bank of Pittsburgh v. L. D. Pankey Institute, et al., 284 Pa. Super. 537, 426 A.2d 624 (1980).

After appellants amended their complaints to allege that they were precluded by the International's constitution from seeking relief within their union, appellee filed a second set

[ 284 Pa. Super. Page 565]

    of preliminary objections, as did the International, in the nature of a demurrer, alleging that appellants had not exhausted their internal remedies. Appellants filed answers to these preliminary objections, denying that internal remedies were available to them.

All of the preliminary objections were argued before the lower court, which held that it did not have in personam jurisdiction over appellee because appellee had not engaged in a "definite and substantial pattern of conduct" in Pennsylvania, and that even if it did have jurisdiction over appellee, Pennsylvania was an inconvenient forum. The present appeals are from this order. The lower court also held that it had in personam jurisdiction over the International, but that issue is not before us since the International has not appealed.

Preliminary to their argument directed at the lower court's refusal to exercise jurisdiction over appellee, appellants make two arguments that may be disposed of summarily. Appellants argue that appellee never objected to the exercise of jurisdiction over it because its "Petition Raising A Question of Jurisdiction and Service" was only directed to improper service of the complaint. Though the bulk of the petition, which we have quoted above, is directed to improper service, paragraph 2 alleges that "this Honorable Court does not have jurisdiction over the person of the [appellee]." Appellants also argue that appellee's preliminary objections to the amended complaints superseded the jurisdictional objection to the original complaints because in the objections to the amended complaints appellee did not reassert the jurisdictional objection. Goodrich-Amram, however, notes that when a plaintiff amends his complaint, the defendant need not reassert a preliminary objection to the original complaint if the objection remains outstanding. Goodrich-Amram 2d § 1028(c):1 states:

If the amendment [of the complaint] removes all of which the defendant has complained, the preliminary objection should be withdrawn or dismissed by the court. If the defendant ...


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