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October 15, 1981

Charles J. SHEERAN
M. A. BRUDER & SONS, INC. and Teamsters Local 470

The opinion of the court was delivered by: POLLAK


Plaintiff Charles J. Sheeran brought this action against defendants M. A. Bruder & Sons, Inc. ("MAB"), and Teamsters Local 470 ("Local 470"), under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185; the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, 29 U.S.C. §§ 793 et seq.; and 42 U.S.C. § 1985. Plaintiff also asserts a pendent state claim under the Pennsylvania Human Relations Act, 43 Pa.Stat.Ann. § 955. Both defendants have filed motions for summary judgment.

 For the most part, the facts are not in dispute:

 MAB is a Pennsylvania corporation engaged primarily in the manufacture, sale and distribution in interstate commerce of paint, print products and related materials. MAB delivers these items by truck directly to customers as well as to its own retail store outlets. Plaintiff had been employed by MAB from 1946 to 1979, serving for the last twenty-five years in the capacity of truck driver. Local 470 is the exclusive collective-bargaining agent for MAB's truck drivers. Plaintiff was represented by Local 470 during his employment. In November, 1979, while in the process of auditing MAB's physical examination forms required by the United States Department of Transportation ("DOT"), counsel to MAB discovered a potential problem with plaintiff's physical qualifications. The problem centered around the fact that plaintiff was believed to be monocular, which, under the applicable DOT regulations, would preclude him from driving for MAB. On November 21, 1979, MAB apprised plaintiff and Local 470 of the potential problem and immediately arranged for plaintiff's physical examination. Plaintiff was examined and was diagnosed as suffering from a total loss of vision in his right eye. *fn1" MAB then advised plaintiff that the controlling federal regulations prohibited his continuation in the capacity of truck driver-the only job classification in Local 470's collective-bargaining agreement with MAB.


 Plaintiff alleges that defendants have conspired to discharge him from his employment in violation of their collective-bargaining agreement and, therefore, of the Labor Management Relations Act of 1947. Plaintiff also alleges that defendant Local 470 has breached its statutory duty of fair representation. Plaintiff asserts that he is entitled to relief under section 301 of the Act, 29 U.S.C. § 185. *fn2" Defendants contend that plaintiff's claim under section 301 is barred by the applicable statute of limitations.

 Nowhere in the Act has Congress provided for any time limitation upon the bringing of an action under section 301. In International Union, U. A. W. v. Hoosier Cardinal Corporation, 383 U.S. 696, 86 S. Ct. 1107, 16 L. Ed. 2d 192 (1966), the Supreme Court held that the timeliness of a section 301 suit would be determined "by reference to the appropriate state statute of limitations." Id. at 705, 86 S. Ct. at 1113. Plaintiff, by his section 301 action, in essence raises the same claim that was presented to the Joint Local Committee-that he was discharged from his employment without just cause and in violation of the collective-bargaining agreement. He also seeks the same relief, viz., reinstatement to his previous work with full compensation for lost earnings. Under these circumstances, plaintiff's action is properly characterized as one to vacate an arbitration award entered against him. United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S. Ct. 1559, 67 L. Ed. 2d 732 (1981); Liotta v. National Forge Co., 629 F.2d 903 (3d Cir. 1980), cert. denied, 451 U.S. 970, 101 S. Ct. 2045, 101 S. Ct. 2046, 68 L. Ed. 2d 348. Plaintiff's action is therefore subject to the state statute of limitations applicable to such actions. United Parcel Service, Inc. v. Mitchell, supra; Liotta v. National Forge Co., supra. In Liotta, the Third Circuit determined that the Pennsylvania statute of limitations governing an employee's section 301 action against his employer and union is the limitation imposed by the Pennsylvania General Arbitration Act, 5 Pa.Stat.Ann. § 173 (Purdon 1963), providing for a three-month limitation period on motions seeking to vacate an arbitration award. *fn3"

 In this case, plaintiff's complaint was filed in May, 1980, approximately five months after the Joint Local Committee's December, 1979 decision. Under the applicable Pennsylvania statute, plaintiff's action is therefore time-barred.

 Plaintiff does not seriously controvert this analysis, but instead argues that the Pennsylvania three-month limitation was repealed by the Uniform Arbitration Act of October 5, 1980, P.L. 693, No. 142, § 501(c), 42 Pa.Stat.Ann. §§ 7301 et seq., (Purdon's 1981 Pamphlet), and is therefore inapplicable to this action. Plaintiff's contention is without merit. The Uniform Arbitration Act provides for an effective date of sixty days after its October 5, 1980 enactment. The arbitration award denying plaintiff's claim was entered on December 12, 1979. Plaintiff's right of action accrued with the entry of this award and is therefore subject to the statute of limitations in effect at that time. Application of the Uniform Arbitration Act to plaintiff's action would impermissibly give that statute retrospective authority.

 Plaintiff further contends that, even under the three-month limitation, the Joint Local Committee's failure to comply with the service requirements of 5 Pa.Stat.Ann. § 173 precludes the tolling of the period of limitation against him. This contention also is without merit. Section 173, in relevant part, provides that:

Notice of motion to vacate, modify, or correct an award shall be filed in the prothonotary's office of the court in which the application is made, and to be served upon the adverse party, or his attorney, within three months after the award is filed, or delivered, as prescribed by law for service of notice of a motion in an action.

 5 Pa.Stat.Ann. § 173. Plaintiff argues that the Committee failed to serve a copy of its decision on him and, for that reason, failed to file or deliver its award "as prescribed by law for service of notice of motion in an action." Plaintiff misconstrues section 173. Section 173 simply provides that the notice of a motion to vacate, etc., be served "as prescribed by law...." The legislature has established separate procedures for the filing of an award decision. 5 Pa.Stat.Ann. § 168, in relevant part, provides that the award be signed by the arbitrators, be in writing, and be delivered "to each party to the arbitration." In this case, the parties to the collective-bargaining agreement-Local 470 and MAB-were the parties to the arbitration. Plaintiff, although a beneficiary of that agreement, was not a party thereto. The Joint Local Committee was under no duty to provide plaintiff with a copy of its decision.

 Furthermore, the evidence indicates that plaintiff was aware of the outcome of the proceedings shortly after they were concluded. The Committee's decision was received by Local 470's business agent on December 13, 1979. In his affidavit in support of Local 470's motion, the agent affirmed that it was his practice to contact grievants personally and advise them of the results of the Committee's decision. Plaintiff came to the agent's office shortly after December 13, 1979, at which time he was apprised of the outcome of the arbitration. Plaintiff inquired as to any further action Local 470 might pursue on his behalf, and was told that there was nothing further that could be done to reinstate him as a driver for MAB. Plaintiff has proffered no evidence contradicting this position. In addition, plaintiff's deposition testimony reveals that plaintiff received a copy of the Committee's decision from the distribution manager at MAB. *fn4" The evidence supports the conclusion that plaintiff was aware of the Joint Local Committee's decision by late December, 1979.

 Wherefore, finding that there is no genuine dispute as to any material fact and that plaintiff's action, as a matter of law, is time-barred, defendants' motions for summary judgment on plaintiff's claims under section 301 ...

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