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NICHOLAS MARTINO v. TRANSPORT WORKERS UNION PHILADELPHIA-LOCAL 234 AND TRANSPORT WORKERS UNION AMERICA-AFL-CIO AND SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY. APPEAL UNION PHILADELPHIA-LOCAL 234 AND TRANSPORT WORKERS UNION AMERICA-AFL-CIO. NICHOLAS MARTINO V. TRANSPORT WORKERS UNION PHILADELPHIA-LOCAL 234 AND TRANSPORT WORKERS UNION AMERICA-AFL-CIO AND SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY. APPEAL SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (06/25/82)

filed: June 25, 1982.

NICHOLAS MARTINO
v.
TRANSPORT WORKERS UNION OF PHILADELPHIA-LOCAL 234 AND TRANSPORT WORKERS UNION OF AMERICA-AFL-CIO AND SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY. APPEAL OF UNION OF PHILADELPHIA-LOCAL 234 AND TRANSPORT WORKERS UNION OF AMERICA-AFL-CIO. NICHOLAS MARTINO V. TRANSPORT WORKERS UNION OF PHILADELPHIA-LOCAL 234 AND TRANSPORT WORKERS UNION OF AMERICA-AFL-CIO AND SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY. APPEAL OF SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY



No. 2457 October Term, 1978, No. 2459 October Term, 1978, Appeal from an Order of the Court of Common Pleas of Philadelphia County, Civil Action, at No. 2168 February Term, 1978.

COUNSEL

Herbert K. Fisher, Philadelphia, for Union of Phila.-Local 234 and Transport Workers Union of America-AFL-CIO, appellants (at No. 2457) and appellees (at No. 2459).

Marcus Manoff, Philadelphia, for Southeastern PA Transp. Authority, appellant (at No. 2459) and appellee (at No. 2457).

Harris T. Bock, Philadelphia, for Martino, appellee.

Cercone, President Judge, and Cavanaugh, Rowley, Wieand, McEwen, Cirillo and Montemuro, JJ.

Author: Rowley

[ 301 Pa. Super. Page 165]

These consolidated appeals present the question whether the courts of common pleas have "subject matter jurisdiction" to hear and decide an action in equity instituted by a former employee against his former public employer and his union seeking relief (1) against the employer for allegedly discharging him in violation of a collective bargaining agreement between the employer and the union and, (2) against the union for an alleged breach of its duty of fair representation during the grievance process under the collective bargaining agreement. The trial court accepted jurisdiction and the union and employer appealed. We hold that the courts of common pleas have such jurisdiction and affirm.

[ 301 Pa. Super. Page 166]

I.

Prior to August 4, 1977 appellee, Nicholas Martino, was employed by the appellant, Southeastern Pennsylvania Transportation Authority (SEPTA) as a trainman. SEPTA provides public transportation in the greater Philadelphia area and is an instrumentality and agency of the Commonwealth of Pennsylvania. Appellee was also a member in good standing of appellants, Transport Worker's Union of Philadelphia, Local 234 (Local 234) and Transport Workers Union of America, AFL-CIO (International) [Local 234 and the International are hereinafter collectively referred to as the unions]. The unions were the exclusive representative of SEPTA's employees for the purposes of collective bargaining. A collective bargaining agreement (the agreement) was in effect between the unions and SEPTA at all times material to this case.

On August 4, 1977, appellee was discharged by SEPTA on the ground that he was guilty of having made "improper fare collections". The agreement between the unions and SEPTA provided a detailed procedure for the resolution of grievances by first, second and third level grievance hearings and binding arbitration in the event the union appealed the decision made at the third level grievance hearing. Appellee's grievance concerning his discharge was processed through the first three grievance level hearings and he was represented at each hearing by a union representative. At each hearing the grievance was resolved adversely to appellee. The unions then declined to pursue the fourth step arbitration hearing.

Subsequently, on February 21, 1978, appellee filed a complaint in equity against SEPTA and the unions. In the first count, against the unions, appellee alleged that they had breached their fiduciary duty of good faith representation to him during the grievance hearings and by their refusal to seek an arbitration hearing. He requested that the court direct the unions to initiate the arbitration process "nunc pro tunc" and to pay him money damages resulting from their alleged breach. In count two of the complaint, against

[ 301 Pa. Super. Page 167]

SEPTA, appellee claimed that he had been unlawfully and improperly discharged by SEPTA and asked that it be directed to reinstate him to his former position and to pay him compensatory damages resulting from his alleged unlawful discharge.

The appellants filed preliminary objections to the complaint. The preliminary objection filed by the unions was in the nature of a petition raising a question of jurisdiction pursuant to Pa.R.C.P. 1017(b)(1) claiming that the appellee had "failed to . . . exhaust his internal remedies within the union" thereby depriving the trial court of jurisdiction over the subject matter of appellee's suit. SEPTA filed four preliminary objections, two of them being in the nature of a petition raising a question of jurisdiction under Pa.R.C.P. 1017(b)(1). SEPTA claimed first that the collective bargaining agreement provided "a complete and exclusive remedy for" appellee's claim thereby depriving the trial court of jurisdiction and further claiming that exclusive jurisdiction of appellee's complaint had been vested in the Pennsylvania Labor Relations Board (PLRB) by the Legislature when it enacted the Public Employee Relations Act (PERA).*fn1 Similarly, SEPTA filed an objection under Pa.R.C.P. 1509(b) claiming that appellee had failed to exercise or exhaust an adequate statutory remedy provided by the PERA. In addition to SEPTA's challenge to the jurisdiction of the trial court, it filed a preliminary objection in the nature of a demurrer, pursuant to Pa.R.C.P. 1017(b)(4).

The trial court, in an order entered September 19, 1978, dismissed all of the preliminary objections filed by SEPTA and the unions and directed the defendants to file answers to the complaint. The court concluded that the unions and SEPTA had "not met the burden of establishing that" the trial court lacked jurisdiction. In reaching this conclusion, the court considered the opinions of the United States Supreme Court in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), and the Supreme Court of Pennsylvania

[ 301 Pa. Super. Page 168]

    in Falsetti v. Local U. No. 2026, UMWA, 400 Pa. 145, 161 A.2d 882 (1960). The trial court concluded that the decisions in those two cases had reached "diametrically opposite conclusions". For that reason, the court determined that the issues raised by the preliminary objections were not "clear and free from doubt" and that under such circumstances the objections should be overruled.

The unions filed an appeal at No. 2457 October Term, 1978 in this court from the order of the trial court dismissing their preliminary objection. SEPTA filed an appeal at No. 2459 October Term 1978 from the order dismissing its preliminary objections. The appeals were consolidated for argument before the Court en banc on February 25, 1982. At oral argument counsel for the unions advised the court that the unions no longer desired to pursue their appeal and, on the contrary, supported the argument made on behalf of appellee. Therefore, the appeal filed by the unions will be dismissed and we will consider in this opinion only the arguments raised by SEPTA.

SEPTA argues on appeal that (1) the trial court lacks subject matter jurisdiction to consider appellee's complaint, (2) that the appellee failed to exercise or exhaust his statutory remedy under the PERA and (3) the complaint fails to state a cause of action.

II.

At the outset, it is appropriate to consider the jurisdiction of this court to entertain SEPTA's appeal and the scope of review to be exercised. Ordinarily an order dismissing preliminary objections to a complaint is interlocutory and therefore, not appealable. Newkirk v. Phila. Sch. Dist., 437 Pa. 114, 261 A.2d 305 (1970); Village 2 At New Hope, Inc., Appeals, 429 Pa. 626, 241 A.2d 81 (1968); Phila. v. Wm. Penn Bus. Inst., 423 Pa. 490, 223 A.2d 850 (1966); 2401 Pa. Ave. v. Southland, 236 Pa. Super. 102, 344 A.2d 582 (1975). However, an exception to the general rule existed under the Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672, repealed, Act of April 28, 1978, P.L. 202, § 2(a) (effective

[ 301 Pa. Super. Page 169]

June 27, 1980). Since the Act of 1925 was still in effect on the dates that the appeals of SEPTA and the unions were filed, its provisions are controlling in this case.*fn2

The act of 1925 provided that whenever a question of jurisdiction over the cause of action was raised in the trial court, the decision of that court "may be appealed to the Supreme Court or the Superior Court, as in cases of final judgments " (Emphasis supplied). Therefore, the order of the trial court disposing of SEPTA's preliminary objections under Pa.R.C.P. 1017(b)(1) and 1509(b) challenging ...


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