United States District Court, E.D. Pennsylvania
J. PAPPERT, JUDGE
Tortorice, Sr. has been a member of the International
Alliance of Theatrical Stage Employees Local 8 since 1984,
serving as the Union's Vice President under Michael
Barnes for nine years. For more than twenty years, Tortorice
was the Head Carpenter and Steward at the Merriam Theater,
which the Kimmel Center, Inc. acquired in 2009. In addition
to his role at the Merriam, Tortorice worked for
Elliott-Lewis Corporation as a Steward in the Pennsylvania
Convention Center, having been appointed to that position by
Barnes in 2008. A collective bargaining agreement between the
Kimmel Center and the Union established the terms and
conditions of Tortorice's employment at the Merriam and a
separate CBA between the Union and Elliott-Lewis governed his
employment at the Convention Center.
year, Tortorice was suspended from working at the Convention
Center by Elliott-Lewis and terminated from his position at
the Merriam by the Kimmel Center. Tortorice filed this
lawsuit asserting hybrid claims under Section 301 of the
Labor Management Relations Act against the Union for breaches
of the duty of fair representation and the Kimmel Center and
Elliott-Lewis for breaches of the CBAs. Pursuant to the Labor
Management Reporting and Disclosure Act, Tortorice also
alleges that Barnes, along with the Union, retaliated against
him for criticizing Barnes' leadership as Union
Union, Kimmel Center and Elliott-Lewis moved to dismiss the
Section 301 claims on the ground that they were not brought
within the applicable six-month statute of limitations. The
Court denies the motions because it cannot determine at this
early stage when that limitations period began to run.
29, 2016, Union member David Kenney accused Tortorice of
fraudulently submitting duplicate billing for the same hours
on the same days to the Convention Center and Merriam, and of
engaging in conduct to conceal his behavior. (ECF No. 1, Ex.
E.) The next day, the Union's Executive Board approved
the charges against Tortorice. (ECF No. 1, Ex. F.) On July 6,
Elliott-Lewis suspended Tortorice from working at the
Convention Center to investigate his time and attendance
records. (ECF No. 1, Ex. G.) On July 15, Tortorice was
informed by Barnes that the Kimmel Center was also suspending
him pending an internal investigation, (ECF No. 1, Ex. H.),
which ultimately resulted in his termination on August 25,
(ECF No. 1). In the July 15 email, Barnes told Tortorice that
“[t]he [U]nion will be representing your interest as
outlined in the contract between the parties.” (ECF No.
1, Ex. H.) However, at no point did the Union file grievances
on Tortorice's behalf against either employer. (ECF No.
in the day on July 15, Tortorice learned of the Union's
June 30 charges against him. (ECF No. 1, Ex. I.) The Union
held a trial on the charges on July 26, after which Tortorice
was found guilty and expelled from the Union for ten years.
(ECF No. 1, Ex. K.) On September 10, he appealed the July 26
decision to the Union's International President, Matthew
Loeb, who affirmed the decision on January 6, 2017. (ECF No.
10, Ex. 1; ECF No. 1, Ex. J.) On February 3, Tortorice
appealed Loeb's decision to the General Executive Board.
(ECF No. 1, Ex. K.) On May 11, the Board denied his appeal,
exhausting the internal appeals process, (ECF No. 1, Ex. L),
and Tortorice filed this lawsuit on June 12, (ECF No. 1).
Union, Elliott-Lewis and the Kimmel Center contend that the
applicable six-month statute of limitations bars
Tortorice's claims because he knew, or should have known
at the latest by September 21, 2016, that the Union would not
represent him in grievance proceedings against his employers.
(ECF Nos. 10 & 12.) Tortorice argues that his appeals of
the Union's finding against him tolled the limitations
period until he received the final decision on those appeals.
He asserts that it was only at that time that he should have
known further union appeals were futile. Tortorice further
claims that the determination of when the limitations period
began to run is a fact-intensive inquiry more appropriately
addressed at summary judgment. (ECF Nos. 14 & 16).
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) “tests the sufficiency of the allegations
contained in the complaint.” Kost v.
Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). To survive
a Rule 12(b)(6) motion, the factual allegations in the
complaint must “be enough to raise a right to relief
above the speculative level . . . on the assumption that all
the allegations  are true (even if doubtful in
fact).” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (citations omitted). The Court is required to
accept all allegations in the complaint as true and to draw
all reasonable inferences therefrom in the light most
favorable to the plaintiff. See Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1384-85 (3d
can invoke a statute of limitations defense in a 12(b)(6)
motion. However, “[o]nly where the facts are so clear
that reasonable minds cannot differ may the
commencement of the limitations period be determined as a
matter of law.” Schmidt v. Skolas, 770 F.3d
241, 251 (3d Cir. 2014) (emphasis in original) (citation
omitted); see also Wisniewski v. Fisher, 857 F.3d
152, 157 (3d Cir. 2017) (“A complaint is subject to
dismissal for failure to state a claim on statute of
limitations grounds only when the statute of limitations
defense is apparent on the face of the complaint.”)
(citing id. at 249).
Section 301 cases are those in which employees bring claims
against their employer for breaching the CBA and their union
for violating the duty of fair representation. See
DelCostello v. Int'l Bhd. of Teamsters, 462 U.S.
151, 163-64 (1983). Such claims are permitted “when the
union representing the employee . . . acts in such a
discriminatory, dishonest, arbitrary, or perfunctory fashion
as to breach its duty of fair representation” and
effectively prohibit relief under the CBA's grievance
procedures. Id. at 164. The “‘claims are
inextricably interdependent. “To prevail against either
the company or the Union, . . . [employee-plaintiffs] must
not only show that their discharge was contrary to the
contract but must also carry the burden of demonstrating a
breach of duty by the Union.”'” Id.
(modifications in original) (quoting United Parcel Serv.,
Inc., v. Mitchell, 451 U.S. 56, 66-67 (1981) (Stewart,
J., concurring in the judgment) (quoting Hines v. Anchor
Motor Freight, Inc., 424 U.S. 554, 570-71 (1976))).
Section 301 claims ordinarily must be filed within six months
of the date the claims accrued. Vadino v. A. Valey
Eng'rs, 903 F.2d 253, 260 (3d Cir. 1990) (“The
six-month period commences ‘when the claimant
discovers, or in the exercise of reasonable diligence should
have discovered, the acts constituting the alleged
violation.'”) (quoting Hersh v. Allen Prods.
Co., Inc., 789 F.2d 230, 232 (3d Cir. 1986) (quotation
omitted)). The commencement of the statutory period on claims
against employers is tolled, however, until the claims
against the unions accrue because the union's breach of
its duty is a necessary precondition to the claim against the
employer. See id. at 261; see also Albright v.
Virtue, 273 F.3d 564, 567 (3d Cir. 2001). Thus, the
statute of limitations applicable to Section 301 claims
begins to run when (1) “the plaintiff receives notice
that the union will proceed no further with the grievance,
” Vadino, 903 F.2d at 260 (quoting
Hersh, 789 F.2d at 232) (quotations omitted)), or