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PACHICK v. FRIEDMAN'S EXPRESS

August 29, 1986

Raymond T. Pachick, Plaintiff,
v.
Friedman's Express, Inc., Daniel Friedman, Joseph T. Forgach, Teamsters Local Union No. 401 and Francis Belusko, Defendants



The opinion of the court was delivered by: NEALON

 WILLIAM J. NEALON, Chief Judge.

 Procedural History

 This matter is before the court by way of defendants' Motion for Summary Judgment filed pursuant to Fed. R. Civ. P. 56.

 On May 30, 1985, plaintiff filed a complaint naming as defendants Friedman's Express, Inc. (Friedman's), Daniel Friedman, President, Joseph R. Forgach, Director of Safety and Personnel, Teamsters Local Union No. 401 (Union) and Francis Belusko, President and Business Agent for the Union. The complaint alleges eight causes of action all of which arise from Friedman's dismissal of plaintiff and the Union's subsequent efforts to have him reinstated. *fn1"

 On March 31, 1986, this court issued a Memorandum and Order directing the plaintiff to respond to defendants' Statement of Material Facts. Plaintiff filed a response on April 21, 1986. By letter dated May 12, 1986, the Union requested that oral argument be scheduled on defendants' Motion for Summary Judgment. The court heard argument on June 12, 1986. During argument the defendants challenged several factual allegations contained in plaintiff's opposition brief. Plaintiff requested an opportunity to provide record citations for the contested allegations and, further, to respond to questions raised by the court.

 By letter dated July 14, 1986 plaintiff requested an additional one week to ten days to supply the court with the promised information. On August 6, 1986 the plaintiff had failed to submit any material and the court issued an Order allowing plaintiff until August 15, 1986 to provide the court with any additional information he desired. By letter brief dated August 15, 1986 plaintiff responded to questions raised at argument and provided record citations to support the contested factual assertions. The court has considered these additional documents and this matter is now ripe for disposition. For the reasons set forth below, the court will grant defendants' Motion for Summary Judgment.

 Factual Background

 A complete summary of the factual background is necessary for the resolution of defendants' motions.

 The plaintiff, Raymond T. Pachick, commenced employment as a truck driver with Defendant Friedman's Express, Inc. in 1968. Plaintiff's Statement of Material Facts para. 3, Document 70 of the Record; para. 9 of Complaint, Document 1 of the Record. On September 19, 1984, while in the course of his employment, plaintiff was involved in a single vehicle traffic accident while driving in New York City. On the same day, plaintiff was suspended by Friedman's pending an investigation into the accident. Union's Statement of Material Facts para. 10, Document 26 of the Record; Plaintiff's Statement of Material Facts para. 10, Document 70 of the Record. Friedman's discharged plaintiff from his employment on December 12, 1984. Union's Statement of Material Facts para. 17, Plaintiff's Statement of Material Facts para. 17.

 The plaintiff was discharged for a violation of Article 44 of the National Master Freight Agreement. This article, in pertinent part, states:

 
The Employer shall not discharge nor suspend any employee without just cause but in respect to discharge or suspension shall give at least one (1) warning notice of the complaint against such employee to the employee, in writing, except that no warning notice need be given to any employee before he is discharged if the cause of such discharge is dishonesty, proven theft . . . recklessness resulting in a serious accident while on duty . . . .

 Exhibit 40 of Document 53 of the Record.

 Mr. Joseph Forgach, Director of Safety and Personnel at Friedman's, testified that he was responsible for the decision to discharge Pachick for recklessness resulting in a serious accident while on duty. Deposition of Joseph Forgach, Document 33 of the Record at 53. [Forgach Deposition] Forgach explained that it is his policy to automatically terminate a driver whose recklessness causes a "single vehicle roll over" where the damage exceeds $ 10,000. This has been Friedman's policy since 1969. Id. at 14, 53-4; See Employer Exhibit A(1), Document 27 of the Record.

 The Accident

 At deposition, plaintiff described the factual circumstances surrounding the accident. *fn3" Pachick testified he left the Maspeth terminal at approximately 3:00 A.M., Deposition of Raymond Pachick, Document 49 of the Record at 49. [Pachick Deposition] Plaintiff described the weather conditions as "good" and "clear" and stated that the road surface was dry. Id. at 54. While traveling in the far right lane on the Cross Bronx Expressway, plaintiff approached a point where local traffic merges with expressway traffic. As a courtesy towards drivers entering the expressway and as a safety precaution, plaintiff moved to the center lane. Id. at 52. Plaintiff testified that he went over a "bump" or depression in the road and heard what he described as a "clunking noise." Id. at 49. Immediately after plaintiff heard this noise, the steering wheel turned freely and plaintiff lost control of the vehicle. Id. at 57. The tractor trailer veered to the left, struck the concrete divider and knocked down two light fixtures. Pachick Deposition at 86-89, Document 48 of the Record. The entire vehicle rolled over and landed on its side. Statement of Ronald Cruiz, Exhibit 8(68) of Document 53 of the Record. The plaintiff was able to exit the truck by climbing through an open space created when the windshield cracked and fell out. Pachick Deposition at 88, Document 48 of the Record. After the plaintiff had alighted from the vehicle, fuel which had spilled onto the road ignited and part of the trailer became engulfed in flames. Id., Exhibit 8(4) of Document 53 of the Record. Joseph McKeever, who was operating a tractor trailer behind plaintiff, pulled his vehicle over at the accident site and was able to contain the fire with a fire extinguisher. Within minutes, the New York City Fire and Police Departments arrived and extinguished the fire. Pachick Deposition at 88, Document 48 of the Record; Testimony of Joseph McKeever before Joint Committee Hearing at 22, Document 28 of the Record; Statement of Joseph McKeever, Exhibit 8(10) of Document 53 of the Record.

 Mr. Pachick was not seriously injured but was unable to return to work until December 12, 1984. Exhibit 7(22) of Document 53 of the Record. The monetary loss Friedman's incurred as a result of the accident was approximately $ 34,000. *fn4" Union's Statement of Material Facts para. 31; Forgach Deposition at 5, 85-6; Exhibit 8(5) of Document 53 of the Record.

 According to plaintiff, while still at the accident scene an individual, who plaintiff described only a Fire Chief, stated that he believed the cause of the accident was a broken spring. The men then examined the spring and observed that it was broken in two different spots. The Chief was quoted by plaintiff as stating that the spring was broken in one spot prior to the accident. *fn5" Pachick Deposition at 96, Document 48 of the Record.

 The Fire Chief also examined the brakes on Pachick's vehicle and stated that they were not working properly. Pachick then pointed out the defects in the brakes and springs to McKeever. Id.

 The Union's Investigation

 As stated above, plaintiff was immediately suspended by Friedman's pending an investigation into the cause of the accident. After plaintiff received the notice of suspension, he and Defendant Belusko commenced an investigation of the accident. Pachick Deposition at 73-5, Document 48 of the Record.

 Several weeks after the accident, Belusko and Pachick traveled to New York City for the purpose of obtaining statements and evidence which would demonstrate that Pachick was not responsible for the accident. *fn6" Id. at 75. Deposition of Francis Belusko, Document 56 of the Record at 168 [Belusko Deposition] Belusko drove and arrived at Pachick's house at 7:00 A.M. Pachick Deposition at 80, Document 48 of the Record; Belusko Deposition at 169.

 Upon arriving in New York City, the two men went to the police station from which the accident investigation was conducted. They attempted to contact Officer Michael Murphy who was responsible for preparing the accident report. Pachick Deposition at 75, Document 48 of the Record. Belusko Deposition at 169. Officer Murphy proved to be unavailable throughout the day and a message was left for him to call the Union Hall and reverse the charges. Id. at 173; Pachick Deposition at 78, Document 48 of the Record.

 While at the police station a copy of the police report pertaining to the accident was requested. Belusko and Pachick were informed that such a request must be in writing and mailed to a specific address. Belusko Deposition at 170, Pachick Deposition at 76, Document 48 of the Record. Belusko ultimately obtained a copy of the police report prepared by Officer Murphy. Union Exhibit A(1), Document 27 of the Record.

 After leaving the police station, Belusko and Pachick then attempted to locate the Fire Chief who allegedly attributed the cause of the accident to mechanical defects. This required Belusko and Pachick to visit three different fire houses before they were successful in locating the correct individual. Belusko Deposition at 170-71; Pachick Deposition at 76, Document 48 of the Record. Both men testified at deposition that the Fire Chief refused to provide them with any relevant information concerning the mechanical condition of the truck. The Chief explained that city policy precluded him from testifying or providing a sworn statement. Belusko Deposition at 174-77; Pachick Deposition at 77, Document 48 of the Record. The record does not disclose any further effort to secure the testimony of the Fire Chief.

 Pachick and Belusko also visited the two towing stations that were called to the accident scene. Belusko Deposition at 176, Pachick Deposition at 79, Document 48 of the Record. The first station could not provide relevant information but referred them to Baker's Towing Service. An individual at Baker's told them that any information concerning their part in the accident would be released only to Friedman's. Pachick Deposition at 79, Document 48 of the Record; Belusko Deposition at 178. The two men then left New York and arrived back at the Union Hall at approximately 7:00 P.M. Belusko Deposition at 173; Pachick Deposition at 35, Document 50 of the Record; plaintiff's Statement of Material Facts, para. 14.

 While Belusko and Pachick were at the Union Hall they received a telephone call from Officer Murphy. *fn7" Both men talked with Murphy and he stated that all he knew about the accident was contained in the police report which he had prepared. Belusko stated at deposition that he did not take Murphy's statement, or question him extensively, because the officer stated all the information he knew about the accident was contained in the report. Belusko Deposition at 180-2; Pachick Deposition at 35 of Document 50 of the Record, and at 78 of Document 48 of the Record.

 Both Pachick and Belusko apparently were concerned that the towing service might have repaired the alleged mechanical defects in the truck before the Union would have a chance to document the same. Pachick Deposition at 79, Document 48 of the Record. Belusko testified that he called Joseph Forgach the day he returned from New York City and asked if Baker's Towing Service had made any repairs to the truck. Forgach assured Belusko that Baker's had not made any repairs to the truck. Belusko Deposition at 179-80.

 Belusko and Pachick also went to examine the truck after it was returned to Friedman's. *fn8" After Belusko made a visual inspection of the truck he asked the mechanic, Thomas Martin, if any work was performed on the vehicle by the towing station. Martin stated that no repairs were made and, in fact, a second mechanic, Robert Morris, was able to steer the tractor off the "flatbed." Because Morris was able to steer the vehicle, Belusko asked if any repairs could have been made to the steering box. Morris stated that, in his opinion, the steering box had not been repaired. Belusko Deposition at 185-90; 204; Deposition of Anthony Mussoline at 9-10, Document 35 of the Record.

 While Belusko was inspecting the vehicle he noticed steel shaving in the vicinity of the steering box and, also, noticed that the spring had been removed. Belusko did not place any significance on the steel shavings because the mechanic told him the steering box had not been repaired. Belusko also telephoned Joseph Forgach and asked if he knew what happened to the spring. Forgach explained that it was sent to the Ford Motor Company for testing because plaintiff had identified it as a major cause of the accident. Belusko Deposition at 191-94, see Exhibit 7(42) of Document 53 of the Record. Belusko never personally examined the spring. Belusko Deposition at 197. Belusko also never attempted to contact Ford to learn the results of any testing performed on the spring. Id. at 194.

 On numerous occasions Belusko discussed plaintiff's accident with Joseph McKeever. These discussions centered around what McKeever observed the night of the accident. *fn9" Belusko Deposition at 157-67. These discussions were had via telephone and the men never personally met until the day of the hearing before the Joint Committee. Id. at 160. Plaintiff has submitted as an exhibit a copy of the Union's telephone bill for the period between the accident and the hearing. The telephone bill reveals that the Union placed six calls to McKeever's home between October 5, 1984 and January 3, 1985. The Union was billed for a total of 39 minutes of conversation. See Exhibits 8 (61-65) of Document 53 of the Record.

 Prior to the hearing, three truck drivers who were members of Local 401, but employed by North Penn Express, approached Belusko. These individuals stated they all had experience driving a tractor similar to the one Pachick was operating on the night of the accident and all had experienced a steering defect. A signed sworn statement to this effect was obtained and introduced as evidence at the hearing before the Joint Committee. Pachick Deposition at 38-40 of Document 50 of the Record. Union's Exhibit A(2), Document 27 of the Record.

 In December of 1984 Pachick went to New York City for a second time in order to obtain a statement from John Chicchetti. Belusko did not accompany Pachick on this trip. Chicchetti was employed as a supervisor at the Maspeth terminal and was working the night of the accident. Pachick stated that he wanted to obtain a statement from Chicchetti so that it would be available in the event Chicchetti was unable to testify before the Joint Committee. Chicchetti did not testify at the hearing and his statement was accepted into evidence. Pachick Deposition at 26-29, Document 50 of the Record. Plaintiff's Statement of Material Facts para. 22, Document 70 of the Record; Union's Statement of Material Facts paras. 22, 27, Document 26 of the Record; Union's Exhibit A(5), Document 27 of the Record.

 The relevant portion of Chicchetti's statement is that the day before the accident a mechanic employed by Friedman's was requesting information about the vehicle plaintiff was operating the night of the accident. Chicchetti later realized this vehicle was involved in the accident and he asked the mechanic why he was curious about that particular tractor. The mechanic stated that it was low on oil but, upon further questioning, adamantly refused to answer any further questions.

 As stated above, plaintiff was discharged from employment on December 12, 1984. On December 19, 1984, Pachick filed a grievance concerning his discharge. Paragraph 17 of the Complaint, Document 1 of the Record; Exhibit 8(78) of Document 53 of the Record. *fn10" On this same day, Pachick, Belusko and Union Shop Steward Zimmerman met with company representatives Joseph Forgach and Jack Richards. The purpose of this meeting was to discuss plaintiff's discharge. Union's Statement of Material Facts para. 18, Document 26 of the Record; Plaintiff's Statement of Material Facts para. 18, Document 70 of the Record; Pachick Deposition at 9, 45, Document 48 of the Record.

 Immediately prior to this meeting, Belusko suggested that Pachick admit the accident was his fault and dismiss his grievance for back pay in exchange for reinstatement. Pachick responded that he would withdraw his claim for back pay but would not accept responsibility for the accident. Pachick Deposition at 45-46, Document 48 of the Record. In the course of this meeting, Belusko asked the company representatives if they were interested in a compromise. Jack Richards declined to enter into settlement negotiations stating that Friedman's intended to take the matter to the Joint Committee. Pachick Deposition at 48, Document 48 of the Record, Plaintiff's Statement of Material Facts para. 18, Document 70 of the Record.

 At this meeting, the company and the Union each discussed its respective theory of the cause of the accident. The Union claimed that the sole cause of the accident was faulty equipment. The company contended that Pachick was operating his vehicle at an excessive rate of speed and when the truck crossed over the depression in the road Pachick lost control and struck the concrete divider and light fixtures. Belusko Deposition at 143-45. The meeting lasted about one hour. Pachick Deposition at 46, Document 48 of the Record. This meeting was not required under the contract but was held at the request of Belusko. Belusko Deposition at 139.

 Prior to the hearing before the Joint Committee, Belusko and Pachick met with Attorney John Moses and discussed plaintiff's grievance. Pachick Deposition at 71, Document 48 of the Record; Union's Statement of Material Facts para. 20, Document 26 of the Record; ...


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