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filed: February 27, 1981.


No. 1250 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, No. G.D. 78-18625.


Frank J. Lucchino, Pittsburgh, for appellant.

Ralph T. DeStefano, Martin J. Saunders, Pittsburgh, for Marion Power, appellee.

Henry J. Wallace, Jr., Pittsburgh, for Fort Pitt, appellee.

Price, Hester and Montgomery, JJ. Hester, J., concurs in the result.

Author: Price

[ 285 Pa. Super. Page 47]

The instant appeal is from the order of the court of common pleas denying the petition of appellant, Local No. 1406, United Steelworkers of America, AFL-CIO, to intervene as a party in a replevin action between Marion Power Shovel Company (hereinafter referred to as "Marion") and Fort Pitt Steel Casting Company (hereinafter "Fort Pitt"). Appellant, the collective bargaining representative for Fort Pitt's employees, was engaged in an economic strike against Fort Pitt. Consequently, appellant argues that the petition to intervene should have been granted, since both the union and its members have a sufficient interest in the property involved in the replevin action to warrant intervention pursuant to Pennsylvania Rule of Civil Procedure 2327(4).*fn1 For

[ 285 Pa. Super. Page 48]

    the reasons that follow, we disagree and thus affirm the order of the trial court.*fn2

Fort Pitt is a manufacturer of steel castings used to produce gears, brake parts and tractor sheaths for heavy equipment. Marion manufactures heavy strip mining equipment requiring the use of finished castings such as those produced by Fort Pitt. On April 19, 1977, Marion placed an order with Fort Pitt for over 200 steel castings of various types. Because of the United Steelworkers strike against Fort Pitt, however, work on Marion's order ceased as of March 3, 1978. Thus, notwithstanding Marion's receipt of an invoice dated July 31, 1978, all of the completed castings had not been delivered as of that time.

Marion's ability to fill orders for its own equipment was contingent upon its timely receipt of components manufactured

[ 285 Pa. Super. Page 49]

    elsewhere.*fn3 Thus, it was not uncommon for Marion to take delivery of partially completed castings. N.T. 36. In view of the delay caused by the Steelworkers strike, therefore, Marion and Fort Pitt renegotiated the original purchase order to reflect Marion's willingness to accept delivery of the partially completed castings. N.T. 44-46. Subsequently, however, Marion was advised that Fort Pitt would not deliver even the partially completed castings because of the strike. N.T. 46. Consequently, on August 3, 1978, Marion filed a Complaint in Replevin to recover possession of the castings. Fort Pitt thereafter waived its right to notice, hearing and counterbond and disclaimed any interest in the castings. The trial court thus entered an order directing the issuance of a Writ of Seizure. Thereafter, on August 18, 1978, appellant filed a petition to intervene and, on August 22, having concluded that appellant had failed to substantiate its claimed possession of the required legally enforceable interest, the trial court refused its petition.

The determination whether to allow "intervention is a matter within the sound discretion of the court below and unless there is a manifest abuse of such discretion, its exercise will not be interfered with on review." Darlington v. Reilly, 363 Pa. 72, 76, 69 A.2d 84, 86 (1949). Accord, Taub v. Merriam, 251 Pa. Super. 572, 578, 380 A.2d 1245, 1249 (1977); Landis v. Glessner, 132 Pa. Super. 301, 200 A. 899 (1938). Instantly, appellant avers the commission of such an abuse in that the trial court failed to consider all of the evidence submitted. Brief for Appellant at 7. The evidence to which appellant refers consisted of conclusory statements that the union owned a legally enforceable interest in the castings subject to the replevin action and that the action was the result of collusion between Marion and Fort Pitt. After carefully reviewing the record we find these contentions to be without merit and, accordingly, find no abuse of discretion.

[ 285 Pa. Super. Page 50]

The alleged evidence of collusion is contained, inter alia, at pages 6a and 7a of the Record herein. The pertinent segments follow.*fn4

MR. WALLACE: I am Henry J. Wallace, Jr., representing the Defendant [Fort Pitt] in this action. I was not served with the petition to intervene; and accordingly, until today, I was unaware of its contents. I received prior to the proceeding this morning, a copy of the petition and also a copy of the Plaintiff's, Marion Power Shovel Company's answer.

THE COURT: Are you raising that procedural problem?

MR. WALLACE: No, Your Honor. I would like at this time to accept service of the petition to intervene. I would further, to save time, if Mr. Lucchino would so agree. I would adopt as the Defendant's answer the answer of Plaintiff of the petition to intervene.

MR. LUCCHINO: We have no objection.

THE COURT: All right. Let the Record declare then that Fort Pitt Steel Casting Company, Defendant adopts in toto, I presume, the answer to the petition filed by Marion Power Shovel Company . . . .

Record at 6a and 7a.

Rule 2328(b) of the Pennsylvania Rules of Civil Procedure requires that "[a] copy of the petition [to intervene] . . . be served upon each party to the action [in which intervention is sought]." Pa.R.C.P. 2328(b) (emphasis added). Given the content of the testimony quoted above, it is clear that Fort Pitt was improperly served pursuant to Rule

[ 285 Pa. Super. Page 512328]

. Thus, appellant cannot now contend that Fort Pitt's adoption of Marion's responsive pleading constitutes collusion since it was necessitated by appellant's own failure to comply with the rules of procedure. Even from a practical standpoint, moreover, collusion could hardly be established merely by the fact that Fort Pitt adopted Marion's answer as its own. Marion's answer contained averments designed to buttress its contention that the union's petition to intervene should be denied. Thus, in addition to disputing appellant's claimed interest in the steel castings, Marion sought to refute the union's charge that the replevin action was collusive. Had Fort Pitt been afforded an opportunity to respond in its own right, it is highly unlikely that its response would have differed significantly, if at all, from the response fashioned by Marion. Thus, its adoption of an answer responsive to its own interests, albeit interests shared by Marion, cannot and will not be deemed collusive.*fn5

[ 285 Pa. Super. Page 52]

The second prong of appellant's abuse of discretion argument is that the court disregarded evidence which allegedly established the union's interest in the property sought to be replevied. Again, we disagree.

Appellant's petition to intervene contained numerous rather nebulous averments, among the most specific of which was the following:

The union has a susbstantial [sic] economic interest in determination of this action, in that the goods which plaintiffs seek to replevy may be struck goods, or that the persons who would be utilized to remove the property to be replevied from the defendant's plant may be engaged in strike breaking activities against the union. Further, members of the union may have incentive wages due on these goods.

Petition to Intervene, para. 3, Record at 62a (emphasis added). Since the record contains no evidence on the related questions of struck goods or the possibility of strike breaking activity, and because these matters were not discussed in appellant's brief, we need not address those issues here. Thus, we will only consider the question of incentive wages.

The types of incentive wages claimed to be involved in this matter include direct incentives paid to production employees, indirect incentives paid to laborers, and indirect incentives paid to maintenance employees. While direct incentives and indirect incentives paid to laborers are calculated daily, N.T. 14-16, indirect incentives paid to maintenance personnel are determined on a monthly basis. N.T. 15-16.*fn6 As of March 3, 1978, the date on which the work

[ 285 Pa. Super. Page 53]

    stoppage commenced, therefore, neither direct nor indirect labor incentives remained undetermined. Moreover, since the sales tonnage figure was readily ascertainable for the month of February, February's maintenance incentive should likewise be deemed determinable as of the date of the strike. Thus, the only incentive pay that could even arguably be deemed undetermined is the indirect maintenance incentive, if any, outstanding on employee production for March 1, 2, and 3, 1978 -- the only days worked during that month.

In ruling on a petition to intervene, the trial court is required to determine, inter alia, whether "the allegations of the petition have been established" and, assuming that they have, whether they demonstrate an interest sufficient to justify intervention. Pa.R.C.P. 2329. We have already noted that the only allegation that has been established is the averment that "members of the union may have incentive wages due" on the property sought to be replevied. Record at 62a (emphasis added). Thus, we must determine whether a potential claim for indirect maintenance incentives for a three day period of employee production during March, 1978, would justify appellant's intervention in the replevin action.

Intervention shall be allowed whenever "the determination of [a pending] action may affect any legally enforceable interest of [the party seeking to intervene] whether or not he may be bound by a judgment in the action." Pa.R.C.P. 2327(4). The phrase "legally enforceable interest" has been interpreted to require that "the applicant for intervention . . . own an interest in or a lien upon property in question or . . . own a cause of action which will be affected by the action." 8 Goodrich-Amram, Stand.Pa.Prac. ยง 2327:7 at 373.*fn7 See, e. g., General Electric Co. v. Blaw-Knox Co., 118 P.L.J. 92

[ 285 Pa. Super. Page 54]

(C.P.Alleg.1970); Neish v. Aliquippa Borough, 30 D. & C.2d 49, 51 (C.P.Beaver 1963). Cf. Official Comment accompanying Pa.R.C.P. 1076(a) ("A person not a party to the action who claims the right to possession of the property may intervene in the [replevin] action as a defendant.") Viewed from this perspective, appellant lacks sufficient interest in the castings to intervene pursuant to Pa.R.C.P. 2327(4).

By its own admission, the union's only interest in the steel castings is "that [its member's] incentive pay calculations are dependent upon an accurate inventory and accounting of the various products situated at the Fort Pitt Steel casting plant." Brief for Appellant at 10 (emphasis added). The castings do not themselves represent an interest or cause of action owned by the union; nor are they subject to a lien possessed by the union. See generally Bank of America v. McCauley, 23 D. & C.2d 362 (C.P.Alleg.1960); Tucker, Trustees v. Tucker, 68 D. & C. 318 (C.P.Phila.1949). The union argues, however, that it is qualified to intervene since it would be unable to compute the incentives due its members

[ 285 Pa. Super. Page 55]

    if the castings were removed from the plant.*fn8 N.T. 13. We disagree.

Incentive wages are a creature of the labor agreement between the union and Fort Pitt. The steel castings, which the union neither claims nor could claim the right to possess, simply serve as one means by which to measure employee productivity, upon which the incentive rates are based. The only incentive arguably undetermined as of the date of the hearing below was the indirect maintenance incentive for work completed on March 1, 2, and 3, 1978. However, the union adduced no evidence to demonstrate that its members

[ 285 Pa. Super. Page 56]

    had even performed any work on the castings in question during the pertinent period of time. Moreover, even assuming, arguendo, that work had been performed, the potential problems inherent in a determination of the amount of incentives due was obviated by agreement of the parties. The following excerpt of testimony adduced at the hearing below is illustrative of the solution achieved.

Q. [Counsel for Fort Pitt] Is it not a fact, sir, that the company has told you and represented in open Court on previous occasions that it will pay any incentives of that it determines to be due on castings?

A. [James Garry-Union President] Yes.

Q. Is it not a fact that you may file a grievance under the grievance procedure if you disagree with the calculation of incentives?

A. Yes.

N.T. 21. Thus, we simply cannot agree that the union's "interest" in the castings is sufficient to justify its intervention since its interest, if any, will in no way be affected by the action between Marion and Fort Pitt.

Accordingly, we affirm the order of the trial court denying appellant's motion to intervene.*fn9

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