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DAVID SALATINO v. PENNSYLVANIA NURSES ASSOCIATION (12/18/81)

filed: December 18, 1981.

DAVID SALATINO
v.
PENNSYLVANIA NURSES ASSOCIATION, APPELLANT



No. 197 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Northampton County, at No. 1979-C-10322.

COUNSEL

Michael I. Levin, Harrisburg, for appellant.

John Solt, Allentown, submitted a brief on behalf of appellee.

Hester, Cavanaugh and Van der Voort, JJ.

Author: Cavanaugh

[ 293 Pa. Super. Page 337]

The question presented in this appeal is whether the common pleas court has subject matter jurisdiction over a case involving an alleged breach of a union's duty of fair representation of its member or whether such jurisdiction is preempted by The National Labor Relations Act (NLRA) as amended, 29 U.S.C.A. ยง 141 et seq. We hold that the common pleas courts of Pennsylvania do have jurisdiction and therefore we affirm the lower court order dismissing appellant's preliminary objection.

Appellee, David Salatino, was employed by Easton Hospital in Easton, Pennsylvania as a full-time registered nurse until he was discharged in December, 1977 for allegedly endangering the life of a patient by unsafe nursing practice. Appellee was at that time a member of The Pennsylvania Nurses Association, which was the recognized exclusive collective bargaining representative of nurses employed by Easton Hospital. Pursuant to the collective bargaining agreement between appellant association and Easton Hospital, appellee sought appellant's aid in instituting a grievance proceeding against the hospital for wrongfully terminating his employment. Appellee alleges that appellant assured him it would pursue the grievance on his behalf, but that after the prescribed time period for filing the grievance had expired, it notified him that it had decided not to proceed with his claim.

Appellee subsequently filed, in the Court of Common Pleas of Northampton County, a complaint in trespass alleging that appellant breached its duty of fair representation by acting arbitrarily and in bad faith in failing to pursue his grievance. Appellant filed preliminary objections alleging,

[ 293 Pa. Super. Page 338]

    cases involving alleged breaches of the union's duty of fair representation.

Id. at 180-81, 87 S.Ct. at 911-12, 17 L.Ed.2d at 852. The court concluded that "the unique role played by the duty of fair representation doctrine in the scheme of federal labor laws . . . render[s] the Garmon pre-emption doctrine inapplicable." Id. at 188, 87 S.Ct. at 915, 17 L.Ed.2d at 857.

Pennsylvania appellate courts have not exercised jurisdiction in a case alleging a breach of the duty of fair representation since the Vaca decision but our reading of the cases indicates that they would do so given appropriate circumstances.

In its first opportunity to address the preemption issue after Vaca our Supreme Court, while recognizing the exception established in Vaca, concluded that the Garmon preemption doctrine still applied in the circumstances presented. Lay v. International Brotherhood of Electrical Workers, Local No. 174, 427 Pa. 387, 235 A.2d 402 (1967). Lay involved picketing by a union of a non-union construction site. The supreme court, in reversing the lower court's decree enjoining the picketing, concluded that the issue of the legality of the ...


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