Day v. Pennsylvania Railroad Company

• Decision Date: 17 April 1957
• Docket Number: No. 12105.,12105.
• Parties: George M. DAY, Administrator ad litem of the Estate of Charles A. De Priest, Deceased, Appellant, v. The PENNSYLVANIA RAILROAD COMPANY.
• Court: U.S. Court of Appeals — Third Circuit

243 F.2d 485 (1957)

George M. DAY, Administrator ad litem of the Estate of Charles A. De Priest, Deceased, Appellant, v. The PENNSYLVANIA RAILROAD COMPANY.

No. 12105.

United States Court of Appeals Third Circuit.

Argued February 19, 1957.

Decided April 17, 1957.

James M. Davis, Jr., Mount Holly, N. J. (Powell & Davis, Mount Holly, N. J., on the brief), for appellant.

F. Morse Archer, Jr., Camden, N. J. (Archer, Greiner, Hunter & Read, Camden, N. J., John B. Prizer, Richard N. Clattenburg, Philadelphia, Pa., on the brief), for appellee.

Before MARIS, McLAUGHLIN and STALEY, Circuit Judges.

MARIS, Circuit Judge.

This is an appeal from an order of the District Court for the District of New Jersey staying proceedings in this diversity action pending a decision by the National Railroad Adjustment Board.

On April 11, 1955, Charles A. DePriest filed a complaint in the district court asserting that he had been employed as a locomotive engineer by the defendant, The Pennsylvania Railroad Company, from May 13, 1918 until March 10, 1955 when he retired. He further asserted that on March 1, 1941 the defendant railroad company and the Baltimore and Eastern Railroad Company, as employers, and the Brotherhood of Locomotive Engineers, a labor union, had entered into an agreement for the benefit of locomotive engineers employed by the two railroads in both yard and road service, of which DePriest was one, which provided, inter alia, that if an engineer employed by the defendant operated a train over the trackage of a foreign railroad, other than in an emergency, he performed a road service which entitled him to one day's pay in addition to the day's compensation to which he was entitled for services on the road of his employer. DePriest claimed that between February 1, 1948, when he was assigned to yard service and the time of his retirement he had performed services on between 1000 and 1500 occasions on the trackage of the Baltimore and Ohio Railroad which entitled him to compensation in the sum of $27,000. He alleged that his claims were denied by the defendant and that, due to his retirement, the National Railroad Adjustment Board had no jurisdiction of the matter and he accordingly was asserting his claims in this action in the district court.

The defendant moved to dismiss the action for lack of jurisdiction and in support of its motion filed an affidavit alleging that claims for additional wages under the same agreement had been filed against it by two former Philadelphia Terminal Division engineers, John J. Manning and Charles E. Freehoff, which after their death were progressed by their administrators to the First Division of the National Railroad Adjustment Board where they were docketed and are presently awaiting decision. The motion to dismiss was denied with leave to the defendant to request a reasonable stay of the trial of this action pending determination of like issues between other claimants and the defendant now before the National Railroad Adjustment Board. The defendant then filed its answer, generally denying DePriest's claims and asserting eight defenses thereto. It also moved for summary judgment on the ground that administrative remedies had not been exhausted or, in the alternative, sought an order staying all proceedings pending a decision by the National Railroad Adjustment Board interpreting the basic agreement involved in this case.

The district court, after hearing the motions held that the action involved the construction of a contract between a railroad employer and a labor union which under the provisions of the Railway Labor Act¹ was exclusively for determination by the National Railroad Adjustment Board, a requirement not affected by DePriest's voluntary retirement, and that DePriest, although not a party to the claims pending before the Board, would be a person affected by any order of the Board in the matter, upon which an action could be maintained in the District Court. 145 F.Supp. 596. On September 28, 1956 an order was entered by the court in conformity with its opinion retaining jurisdiction of the matter but staying all proceedings until the Board decided the cases presently before it involving the same provisions of the contract in suit. This appeal by DePriest followed.²

At the outset we are met with the question whether the order in question is appealable. It is conceded that the order is interlocutory but the plaintiff urges jurisdiction under section 1292(1) of title 28, United States Code, which authorizes us to review interlocutory orders of the district courts granting or denying injunctions. The plaintiff relies upon Shanferoke Coal & Supply Corp. of Delaware v. Westchester Service Corp., 1935, 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583, in which the Supreme Court held that the grant or refusal by a court of equity of a stay of proceedings at law is a grant or refusal of an injunction and therefore appealable under the precursor of section 1292(1). The stay was asked for in that case because of the existence of an arbitration agreement between the parties and in order to permit arbitration to be had thereunder. The court's decision was expressly based upon the proposition that the special defense setting up the arbitration agreement was an equitable defense or cross-bill and that the motion for a stay was an application for an interlocutory injunction based on the special defense.

The difficulty with plaintiff's position here is that no such special equitable defense was set up in the present case. On the contrary the stay here was sought merely because of the rule of law laid down by the Supreme Court in Slocum v. Delaware L. & W. R. Co., 1950, 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795, and Order of Railway...