A. Commencement of the Action
Few courts have considered whether state commencement rules should control an action removed from state court to federal court. Our research reveals that the federal district courts of Pennsylvania which have decided this question have upheld actions commenced in state court according to the Pennsylvania Rules even if later removed. Bennett v. Consolidated Rail Corp., 1988 U.S. Dist. LEXIS 10012, Civil Action No. 88-3337 (E.D. Pa. Sept. 8, 1988) (LEXIS, Genfed library, Dist file) (action commenced according to state procedures, but in court lacking jurisdiction, nevertheless maintained after removal); Dravo Corp. v. White Consol. Indus., 602 F. Supp. 1136 (W.D. Pa. 1985). At least one circuit court of appeals, however, has adopted the position taken here by the Union, i.e., that application of state commencement rules would undermine the goal of uniform national labor procedures. Cannon v. Kroger Co., 832 F.2d 303, 305-06 (4th Cir. 1987), reh'g denied en banc, 837 F.2d 660 (4th Cir. 1988).
While we recognize the importance of this goal, the reasoning of Judge Murnaghan in his dissent from denial of rehearing en banc in Cannon, 837 F.2d 660 (4th Cir. 1988), persuades us to conclude otherwise. In Cannon, the Fourth Circuit upheld the dismissal of an action which had been commenced properly in state court, yet without a complaint, before being removed to federal district court. Cannon v. Kroger Co., 832 F.2d 303 (4th Cir. 1987). Judge Murnaghan, dissenting from the Court's refusal to hear the case en banc, argued that federal pleading rules are not annexed to the substantive cause of action. Cannon v. Kroger Co., 837 F.2d 660, 663-64. He also stressed that the Federal Rules of Civil Procedure and the Supreme Court's own holdings require federal courts to tolerate pre-removal commencement through means other than a complaint. Id., at 664-66. To him, such a practice would respect the rationales for statutes of limitation, i.e., prevention of stale claims and notice of suit. Id. at 666-67. We agree with this analysis.
Notwithstanding the Union's contention to the contrary, it is by no means clear that Congress, or the DelCostello Court for that matter, intended that duty of fair representation cases "must be commenced by filing of [sic] a Complaint within six months of the date of the alleged breach". Union's Brief in Support of Motion for Summary Judgment at 3. In the words of Judge Murnaghan, the pleading requirements of Federal Rule 3 have not been "annexed" as a condition to hybrid suits. Cannon, 837 F.2d at 663. As the Supreme Court noted in West v. Conrail, supra, DelCostello merely borrowed the statute of limitations from § 10(b). 481 U.S. at 38, 107 S. Ct. at 1541, 95 L. Ed. 2d at 37. Just as the Court "did not intend to replace any part of the Federal Rules of Civil Procedure with any part of § 10(b)", Id., the Court has not required that a hybrid action be commenced according to Federal Rule 3. Thus, DelCostello is silent on the method of commencement, and should not be used to read the procedural requirements of § 10(b), including commencement by "complaint", into the substantive federal cause of action discussed there. See Cannon, 837 F.2d 660, 663 & n.5 (4th Cir. 1988) (Murnaghan, J., dissenting) (citing 2 Moore's Federal Practice para. 3.09  at p. 3-84 n.15 (2d ed. 1987)).
The Federal Rules of Civil Procedure themselves contain a clue pointing to acceptance of state commencement procedures in actions removed to federal court. Federal Rule 81(c) expressly notes that "these rules apply to civil actions removed to the United States district courts from the state courts and govern procedure after removal. Repleading is not necessary unless the court so orders". Fed.R.Civ.P. 81(c) (emphasis added). This rule seems to contemplate the harmonious coexistence of the two procedural systems in the context of removal. The Federal Rules thus should not be used to "disqualify or otherwise penalize litigants whose pleadings satisfied state requirements". Cannon, 837 F.2d at 664 (4th Cir. 1988) (Murnaghan, J., dissenting). Rather, in our view, the Federal Rules acknowledge their own limited reach.
This limited reach of the Federal Rules parallels the general deference to state commencement rules shown by the Supreme Court when similar circumstances arose in the past. In Herb v. Pitcairn, 324 U.S. 117, 65 S. Ct. 459, 89 L. Ed. 789 (1945), the Court held that state commencement rules determine whether a case removed to federal court has been commenced properly. Id. at 120, 65 S. Ct. at 460, 89 L. Ed. at 791. Elaborating on this theme in a later opinion in the same case, the Court noted that:
Clearly, . . . when process has been adequate to bring in the parties and to start the case on a course of judicial handling which may lead to final judgment without issuance of new initial process, it is enough to commence the action within the federal statute.
Herb v. Pitcairn, 325 U.S. 77, 79, 65 S. Ct. 954, 955, 89 L. Ed. 1483, 1488 (1945) (emphasis added). In sum, a federal court cannot dismiss an action that doesn't meet federal commencement requirements if the case is so far underway that, at least according to state procedures, no more process is required. In the present case, Mitchell met both of these criteria. He started the case on its "course of judicial handling" by filing his praecipe for writ of summons. As well, no new initial process was required by the time the matter was removed. Indeed, by the time the Union and Joseph's removed the case, they had been served with a complaint.
The Union asserts, however, that allowing Mitchell to commence in state court before removal, but not according to the Federal Rules, will interfere with the federal interest in maintaining uniformity in a national system of labor dispute resolution. While DelCostello certainly acknowledged this interest, the Union's emphasis on the point is misplaced. DelCostello called for " relatively rapid final resolution of labor disputes", 462 U.S. 151, 168, 103 S. Ct. 2281, 2292, 76 L. Ed. 2d 476, 491 (emphasis added). Pennsylvania's commencement procedures, like those in the Federal Rules, effectively guard against the prosecution of stale claims, one of two evils remedied by statutes of limitation. The Pennsylvania practice also respects the second major rationale for statutes of limitation, i.e., giving notice of suit to defendants. United States v. Kubrick, 444 U.S. 111, 117, 100 S. Ct. 352, 356-57, 62 L. Ed. 2d 259, 266 (1979).
Here, for example, Mitchell promptly filed and served his complaint even without prodding from a formal request to do so. Had this action been initiated by complaint in federal court, the Union might have waited the full four months allotted by Federal Rule of Civil Procedure 4(j) to receive a complaint. As it happened, the Union received Mitchell's complaint less than thirty days after initiation of the suit. As noted above, in Pennsylvania state court a defendant retains a great deal of control over an action commenced with a praecipe for a writ of summons, see supra slip op. at 6, and can force the plaintiff to serve a complaint long before the Federal Rules would require. Thus, permitting the plaintiff who properly has commenced his action before removal to file a complaint slightly after the statute of limitations has expired hardly defeats the relatively rapid resolution of federal labor disputes.
B. Failure to State a Claim
Although styled as a motion for summary judgment, the second half of the Union's motion is couched in the language of a motion to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). It will be treated as the latter. As such, we accept the well pleaded allegations of Mitchell's complaint as true and may not dismiss the complaint unless Mitchell can prove no set of facts which would entitle him to relief. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985) cert. denied, 474 U.S. 935, 106 S. Ct. 267, 88 L. Ed. 2d 274 (1985).
The Union claims that Mitchell has failed to state a duty of fair representation claim. This duty is breached when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, in bad faith, Vaca v. Sipes, 386 U.S. 171, 190, 87 S. Ct. 903, 916, 17 L. Ed. 2d 842, 857 (1967); Findley v. Jones Motor Freight, Div. Allegheny Corp., 639 F.2d 953, 957 (3d Cir. 1981), or simply perfunctory. Larry v. Penn Truck Aids, Inc., 567 F. Supp. 1410, 1414 (E.D.Pa. 1983). The Union properly notes that an aggrieved employee must prove more than negligence or poor judgment in prosecuting a grievance. Bazarte v. United Transp. Union, 429 F.2d 868, 872 (3d Cir. 1970). Still, if we believe, as we must at this juncture, Mitchell's allegations that the Union utterly failed to prosecute either of his two grievances, Mitchell has indeed made out a claim that the Union has breached its duty of fair representation. For this reason, this aspect of the Union's motion, like the first, is denied.
Because Mitchell's action was timely commenced and because he has stated a valid claim for a breach of the duty of fair representation, the Union's motion is denied.
An appropriate order will follow.
Date: April 25, 1989
ORDER OF COURT
AND NOW, this 25th day of April, 1989, for the reasons stated in the opinion filed this day, IT IS ORDERED that the motion of defendant United Food and Commercial Workers Local Union No. 23 for summary judgment be, and the same hereby is, denied.