Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of Alvin Nichols v. Southeastern Pennsylvania Transportation Authority and International Brotherhood of Transit Police, No. 4735 October Term, 1986.
Susan Warner, for appellant.
Nicholas J. Staffieri, for appellee, Southeastern Pennsylvania Transportation Authority.
Judges Craig and Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Craig. Judge MacPhail did not participate in the decision in this case.
[ 121 Pa. Commw. Page 173]
Employee Alvin Nichols appeals from an order of the Court of Common Pleas of Philadelphia County which sustained the preliminary objections of employer Southeastern Pennsylvania Transportation Authority (SEPTA) and dismissed Nichols' complaint and civil action with prejudice in favor of SEPTA, because (1) the complaint incorrectly averred that SEPTA is an employer as defined in the Labor Management Relations Act of 1947 (LMRA)*fn1 instead of the Public Employee Relation Act (PERA),*fn2 and (2) Nichols did not expressly allege bad faith and collusion between SEPTA and the International Brotherhood of Transit Police, his union.
SEPTA had employed Nichols as a transit policeman from 1981 until his discharge on February 5, 1986. On August 12, 1985, Nichols suffered a back and neck injury
[ 121 Pa. Commw. Page 174]
in the ordinary course of his employment which led to his filing a workmen's compensation claim against SEPTA. He received compensation benefits until his return to work on January 30, 1986, after SEPTA's medical department declared him eligible to do so. That day, Nichols reinjured his back when he slipped and fell on ice on SEPTA's premises.
The Philadelphia Police Department transported Nichols to the Temple University Hospital Emergency Room where the attending physician advised Nichols to rest for seven days. On January 31, he reported to SEPTA's medical department, which cleared him for "light duty" assignments. However, Nichols did not report for duty after advising the chief deputy that he was medically unable to work.
On February 3, 1986, Nichols saw an orthopedic specialist following the instructions of his private physician, but failed to report to SEPTA's medical department for physical examination that day because of an alleged excessive wait at the specialist's office. SEPTA discharged Nichols on February 5, 1986 for failure to comply with orders.
Nichols contends that SEPTA unlawfully discharged him as a result of a plan to defeat a claim for new or additional workmen's compensation benefits. The union filed grievances and proceeded through step 3 of the grievance procedure specified in the collective bargaining agreement. The fourth and final step is filing for an arbitration hearing within thirty days, and the union must do that filing.
Despite assurances by the union that it would file for the arbitration hearing, no filing occurred until Nichols himself filed, twenty days beyond the deadline, after he learned that the union had failed to file. Arbitrator Parker ruled that the grievance was not arbitrable because of the untimely filing and the union's failure to adhere to the procedural requirements.
[ 121 Pa. Commw. Page 175]
Nichols filed his complaint in civil action on December 12, 1986, seeking judgment against SEPTA and the union. SEPTA filed a motion to determine preliminary objections, seeking to strike the complaint and dismiss the civil action. On February 4, 1987, Nichols filed an "answer" to SEPTA's preliminary objections, which included ...