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April 25, 1989


The opinion of the court was delivered by: DIAMOND

 In this action, plaintiff, Steve M. Mitchell ("Mitchell"), alleges that his employer, defendant Joseph's Supermarkets, Inc. ("Joseph's"), breached a collective bargaining agreement and that his union, defendant United Food and Commercial Workers Local Union No. 23 ("the Union"), breached its duty of fair representation. Although the suit was initiated in state court, the defendants removed the case to this court. Presently before the court is the Union's motion for summary judgment. In this motion, the Union alleges that Mitchell failed to commence his action within the applicable statute of limitations. In addition, the Union alleges that Mitchell has failed to state a claim upon which relief can be granted. We will consider both aspects of this motion seriatim and, for the reasons set forth below, the motion will be denied.


 A. Factual History

 The record, viewed in a light most favorable to Mitchell, reveals the following. From the time Mitchell began working in the produce department of Joseph's Supermarket in October of 1983, he belonged to the United Food and Commercial Workers Union, Local No. 23. In the first half of July 1985, Mitchell told his superiors at Joseph's that he wanted to revise his work schedule so he could attend an area technical school. Mitchell was told that Joseph's would accommodate these desires and Mitchell subsequently enrolled in school.

 On July 17, 1985, Joseph's informed Mitchell that he was being terminated because he was unable to work his scheduled hours. On the same day, or shortly thereafter, Mitchell filed a grievance with the Union. When it appeared that Mitchell's Union steward in the store, Dave Waddlinger, had not forwarded the first grievance to the Union, Mitchell filed a second grievance with Larry Scott, the Union representative. Despite promises from Scott that Mitchell's claim had merit and could be "fought" for up to two years, the Union never processed either grievance.

 Meanwhile, Mitchell applied for and was denied unemployment compensation. At a September 18, 1985, unemployment compensation hearing, Waddlinger appeared and testified for Joseph's. The referee refused to grant benefits to Mitchell. It was at this point that Mitchell "began to suspect that the Union was not protecting his interests".

 B. Procedural History

 The Union argues in its motion that Mitchell's claim is time-barred because the claim was not "commenced" properly before the applicable statute of limitations expired. The statute of limitations for breach of contract/duty of fair representation claims is six months. DelCostello v. International Board of Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983). Assuming Mitchell's cause of action accrued on September 18, 1986, the day of the unemployment compensation hearing, he had until March 18, 1986, to commence his action. Under Rule 3 of the Federal Rules of Civil Procedure, a civil action is commenced "by filing a complaint". Fed.R.Civ.P. 3. The Union points out that Mitchell did not file a complaint before the statute ran, and concludes that Mitchell's claim was not commenced in time.

 Mitchell responds that this action was commenced properly in state court within the six-month statute of limitations. Mitchell asserts that Pennsylvania rules permit commencement of an action by filing a praecipe for writ of summons. 42 Pa. Cons. Stat. Ann. Rule 1007 (Purdon 1987). He filed such a praecipe on March 14, 1986, four days before the expiration of the statute of limitations. Thus, Mitchell concludes, his filing of a complaint slightly more than six months after his cause of action arose does not bar his suit.

 The central issue is this: when plaintiff properly commences his action in state court without filing a complaint within the statute of limitations, and defendant later removes to federal court, is the action time-barred despite plaintiff's compliance with state commencement procedures?


 In considering a motion for summary judgment, the court must construe the record and inferences drawn therefrom in the light most favorable to the party opposing the motion. Baker v. Lukens Steel Co., 793 F.2d 509, 511 (3d Cir. 1986). Summary judgment will be granted only if the moving party demonstrates that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ...

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