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ROBERT JOSEPH SMITH v. TRANSPORTATION WORKERS AMERICA (05/13/88)

decided: May 13, 1988.

ROBERT JOSEPH SMITH, APPELLANT
v.
TRANSPORTATION WORKERS OF AMERICA, AFL-CIO LOCAL 234 AND SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of Robert Joseph Smith v. Transportation Workers of America, AFL-CIO Local 234 and Southeastern Pennsylvania Transportation Authority, No. 1013 April Term, 1986.

COUNSEL

Richard W. Rogers, with him, Henry J. O'Hara, Richard W. Rogers & Associates, for appellant.

Nicholas J. Staffieri, SEPTA Legal Department, for appellees.

Judges MacPhail and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 116 Pa. Commw. Page 144]

Robert Joseph Smith (appellant) appeals from an order of the Court of Common Pleas of Philadelphia County which sustained preliminary objections filed by appellee, Southeastern Pennsylvania Transportation Authority (SEPTA) and dismissed his complaint and action against SEPTA with prejudice.

On April 11, 1984, appellant was discharged by SEPTA due to an allegation that he was smoking marijuana in a restroom. Appellant, by an authorized representative of the appellee, Transportation Workers of America, AFL-CIO, Local 234 (Union), filed a grievance alleging that his discharge was without just cause. The grievance was addressed in two internal grievance procedures that were provided pursuant to the collective bargaining agreement between the Union and SEPTA. The discharge of the appellant was upheld, however, at both of those procedures. Following the entry of the decision in the second internal grievance procedure, appellant, under the collective bargaining agreement, had thirty days to request a hearing by the American Arbitration Association (AAA). The Union, however, filed for an arbitration hearing more than thirty days after the second level decision. As a result, the AAA ruled that the appellant's grievance was not arbitrable because it had not been timely filed.

Appellant then, on April 10, 1986, filed an equity action. This was ten months after he learned of the AAA's decision. In the action he requested that the court order the Union and SEPTA to arbitrate the issue of his

[ 116 Pa. Commw. Page 145]

    discharge. On May 1, 1986, pursuant to Philadelphia Rule of Civil Procedure No. 139, SEPTA filed preliminary objections in the form of a demurrer and a motion to dismiss due to laches. Thereafter, on May 30, 1986, SEPTA filed a copy of the preliminary objections with the Clerk of Motion Court. At the same time, pursuant to Philadelphia Rule of Civil Procedure No. 140 (Rule 140), it sent a copy of the preliminary objections and a memorandum of law in support thereof to the appellant. Accompanying those documents was a letter informing the appellant that he had until June 30, 1986, to file an Answering Memorandum.*fn1

Appellant failed to file his answering memorandum by June 30, 1986. Consequently, the trial court, on July 15, 1986, dismissed the appellant's complaint and action as to SEPTA. In an opinion subsequently filed, the court stated that, because appellant failed to file a response to the preliminary objections, it had granted them as being uncontested. This appeal then followed. Appellant argues that the common pleas court erred by sustaining the preliminary objections without addressing the merits of the case solely because he failed to file a timely answering memorandum to the preliminary objections.

Initially we note that Rule 140 makes no provision for the automatic granting of a motion, ...


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