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WILLIAM CAIRNS v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY ("SEPTA") (03/09/88)

decided: March 9, 1988.

WILLIAM CAIRNS, APPELLANT
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY ("SEPTA"), APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County, in case of William Cairns v. Southeastern Pennsylvania Transportation Authority ("SEPTA"), No. 85-9260.

COUNSEL

Gregory G. Stagliano ; Of Counsel: Eckell, Sparks, Levy, Auerbach, Monte & Moses, for appellant.

Margery Sickles Preddy, for appellee.

President Judge Crumlish, Jr., Judge Barry, and Senior Judge Barbieri, sitting as a panel of three., Opinion by Judge Barry.

Author: Barry

[ 114 Pa. Commw. Page 322]

Willaim Cairns (appellant) appeals from an order of the Court of Common Pleas of Delaware County sustaining the defendant Southeastern Pennsylvania Transportation Authority's (SEPTA) preliminary objections and dismissing Mr. Cairns' complaint.

The appellant was employed by SEPTA as a bus driver from January 25, 1967 through April 15, 1982. Beginning in December of 1981 the appellant began to suffer from a cardiac condition which eventually led to catheterization and by-pass surgery. The appellant's physician released him to return to his job. However,

[ 114 Pa. Commw. Page 323]

SEPTA dismissed the appellant pursuant to the following company regulation:

In the interest of safety of both the public and employees, any employee of the Septa Red Arrow Division who has suffered a coronary occlusion will be immediately and permanently disqualified from operating any revenue equipment.

At all times relevant to these proceedings the appellant was a member of the United Transportation Union, Local 1594 (Union) which is the appellant's exclusive representative for collective bargaining purposes. Following the appellant's discharge the Union followed all grievance procedures on his behalf culminating in the grievance being submitted to binding arbitration. On May 16, 1983, a hearing was held before an arbitrator who entered an award on July 19, 1983 denying the appellant's grievance.

Following the entry of the arbitrator's award the appellant filed a complaint in the Court of Common Pleas of Delaware County naming SEPTA as the defendant. The complaint contains two counts each of which purports to set out a cause of action sounding in tort for wrongful discharge.

SEPTA filed preliminary objections to the appellant's complaint challenging, inter alia, his standing to bring this action. Before the trial court SEPTA characterized the appellant's complaint as an appeal from the arbitrator's award. The trial court accepted that characterization inasmuch as it sustained SEPTA's preliminary objection as to the appellant's lack of standing and dismissed his complaint. In doing so the trial court relied on McGrath v. Municipality of Penn Hills, 64 Pa. Commonwealth Ct. 477, 440 A.2d 1279 (1982) and McCluskey v. ...


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