MEMORANDUM AND ORDER
Plaintiff Frank Dian commenced this action in 1977, nearly two years after he was discharged from his employment at Reading Metals Refining Corp., a division of Reading Industries, Inc. Dian alleged violations of the Collective Bargaining Agreement against the Company and breach of the duty of fair representation against the Union, based upon its failure take his grievance to arbitration pursuant to the terms of the Collective Bargaining Agreement. Dian's action has been recognized by the United States Supreme Court as arising under § 301 of the National Labor-Management Relations Act of 1947. Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967). Hines v. Anchor Motor Freight, 424 U. S. 554, 96 S. Ct. 1048, 47 L. Ed. 2d 231 (1976). Defendants have now moved for judgment on the pleadings/summary judgment, contending that Dian's action is barred by the statute of limitations.
Until the Supreme Court's decision in DelCostello v. International Brotherhood of Teamsters, 462 U. S. 151, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983), federal courts were obliged to select and and apply a state statute of limitations to Vaca-Hines actions. In DelCostello, the court determined that the proper statute of limitations is federal, the same six-month period specified in § 10(b) of the National Labor Relations Act.
Plaintiff argues that the six-month statute of limitations should not govern his case, filed some six years before the DelCostello decision was announced. He contends that when he filed suit the accepted state statute of limitations applied to Vaca-Hines actions in this district was Pennsylvania's six-year period governing contract actions. In particular, he relies upon the Third Circuit's purported acceptance of the six-year statute of limitations in Falsetti v. Local Union No. 2026, United Mine Workers, 355 F.2d 658 (3d Cir. 1966).
In arguing for retroactive application of DelCostello to this case, defendants rely principally upon Perez v. Dana Corp., Parish Frame Division, 718 F.2d 581 (3d Cir. 1983). In that factually similar case, the Third Circuit determined that DelCostello should be applied retroactively to bar plaintiff's cause of action by considering and applying the factors identified in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971).
Of those three factors, the Third Circuit's treatment of the first or threshold factor, i.e., whether DelCostello established "'a new principle of law . . . by overruling clear past precedent'", is wholly applicable to the present case. Perez at 585, quoting Chevron Oil, 404 U. S. at 106.
In Perez, the court held that there was no clear past precedent upon which the plaintiff was entitled to rely so as to justify waiting twenty-three months before filling his Vaca-Hines action. In Perez, the plaintiff's cause of action accrued after the decision in Falsetti, which the court characterized as having left open the correct statute of limitations but which "foreshadowed" the application of a six-month statute of limitations. Thus, the court concluded that:
Given the erratic and conflicting nature of the existing precedent, and our intimation in Falsetti that section 10(b) might apply, we believe that 'reliance on such uncertain [case law] to delay filing . . . was not reasonable', (Citation omitted) Perez at 587.