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ROBERT S. ROCKER v. HARVEY COMPANY (01/06/88)

filed: January 6, 1988.

ROBERT S. ROCKER, APPELLANT,
v.
HARVEY COMPANY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Westmoreland County, Civil at No. 1289 of 1983.

COUNSEL

Ronald L. Chicka, Mount Pleasant, for appellant.

Charles O. Zebley, Jr., Uniontown, for appellee.

Montemuro, Popovich and Hester, JJ.

Author: Montemuro

[ 370 Pa. Super. Page 33]

In this wrongful discharge action, appellant Robert S. Rocker appeals from the Order of the Court of Common Pleas of Westmoreland County, granting a judgment n.o.v. in favor of appellee Harvey Company. The pertinent facts leading up to the present appeal are as follows.

Appellant was employed by appellee from May 1974 until December 1981. A collective bargaining agreement between appellee and the Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union 30 governed appellant's employment relationship with appellee. Appellee and the union had entered into the collective bargaining agreement on November 24, 1981. On December 30, 1981, at approximately 2:00 p.m., a supervisor employed by appellee requested appellant to make a delivery to Uniontown, Pennsylvania. Appellant orally refused to make the delivery and, upon request, submitted a written document to appellee before going home for the remainder of the afternoon. The document stated: "I, Bob Rocker, refuse to deliver to Uniontown and I quit of [sic] of today." Shortly after he arrived home, appellant telephoned appellee and was informed that he should not report to work the following day because he had been suspended. Appellant was told to report back to work on Monday, January 2. When appellant reported back to work his superior informed him that his employment with appellee had been terminated.

[ 370 Pa. Super. Page 34]

Following his discharge, appellee discussed with a union representative the possibility of filing a grievance. Although appellant was familiar with the grievance procedure contained in the collective bargaining agreement, he neither filed a grievance nor took any further action to appeal his discharge in accordance with the procedures outlined in the collective bargaining agreement.*fn1 Appellant applied for

[ 370 Pa. Super. Page 35]

    unemployment compensation but was denied such benefits as a result of having "resigned his job in writing to the employer . . . without cause or necessity."*fn2 Appellant commenced the instant action in assumpsit on February 17, 1983, claiming that he had been wrongfully discharged by appellee. At the close of appellant's case-in-chief appellee moved for an involuntary non-suit because of appellant's failure to avail himself of the grievance and arbitration machinery outlined in the collective bargaining agreement. The trial court denied the motion, holding that failure to grieve and arbitrate is a matter of defense. At the conclusion of trial appellee moved for a directed verdict based on appellant's failure to pursue his contractual remedies prior to filing suit. The trial court found that appellee's failure to raise the issue by way of "new matter" precluded it from raising the issue as a matter of defense. The jury returned a verdict in favor of appellant in the amount of $44,480.48. Appellee filed a timely post-trial motion seeking judgment n.o.v. or a new trial, asserting that: (1) appellant failed to state a claim upon which relief can be granted because he failed to utilize the grievance and arbitration procedures, and (2) the denial of unemployment benefits to appellant because he had voluntarily quit his job collaterally estopped appellant from relitigating that issue. The trial court granted appellee's motion for judgment n.o.v. based on appellant's failure to exhaust the dispute resolution remedies provided in the collective bargaining agreement. This timely appeal followed.

[ 370 Pa. Super. Page 36]

Appellant presents a single issue for our review, namely, whether appellee's failure to raise the grievance and arbitration procedure as an affirmative defense in its "new matter" effectuated a waiver of the issue and precluded the trial court from granting appellee's motion for judgment n.o.v. ...


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