Marchitto v. Central R. Co. of N. J.

Decision Date19 May 1952
Docket NumberNo. A--83,A--83
Citation88 A.2d 851,9 N.J. 456
PartiesMARCHITTO v. CENTRAL R. CO. OF NEW JERSEY et al.
CourtNew Jersey Supreme Court

Archie Elkins, Jersey City, argued the cause for appellant.

Herbert Ziff, Jersey City, argued the cause for respondents (Carey, Pforr, Knoeppel & Ziff, Jersey City, attorneys).

The opinion of the court was delivered by

VANDERBILT, C.J.

This action was instituted by the plaintiff against the Central Railroad Company of New Jersey by which he is employed as a switchtender, the Brotherhood of Railroad Trainmen of which he is a member in good standing, and Dennis A. Giles, the chairman of the general grievance committee of the Brotherhood. The action arose out of claims for extra wages and seniority rights made by the plaintiff against the railroad and the failure of the brotherhood and Giles to prosecute the claims, some of which are now over 13 years old.

The plaintiff's complaint contains six counts. In the first count it is alleged that under the terms of a collective bargaining agreement entered into between the railroad and the brotherhood the plaintiff as an employee of the railroad and a member of the brotherhood, was entitled to certain extra wages in the amount of $35,000 for services performed from April 14, 1938 to January 4, 1950, which the railroad refused to pay. Judgment against the railroad in the sum of $35,000, together with interest, is demanded. The second count states that the railroad failed to recognize certain seniority rights alleged to have been assured him by the collective bargaining agreement as the consequence of which the plaintiff was laid off from January 5, 1950 to November 23, 1950. Claim is made against the railroad for the loss of $5,000 in earnings, together with interest. The third count charges that by reason of his membership the brotherhood undertook to prosecute his claim against the railroad for wages due him under the collective bargaining agreement but that it wilfully neglected and failed to do so diligently and properly, thereby breaching its duty of trust to him, as the result of which his claim against the railroad has been jeopardized and may be lost. Damages are demanded against the brotherhood in the sum of $35,000, together with interest. In the fourth count the plaintiff alleges that Giles had the duty as the agent of the brotherhood and representative of the plaintiff to prosecute the plaintiff's claim for extra wages but that he negligently, wilfully and fraudulently failed to do so, thereby violating his duty to the plaintiff. Damages against Giles in the sum of $35,000, together with interest, are demanded. In the fifth count the plaintiff seeks judgment in the sum of $5,000, together with interest, against both the brotherhood and Giles on the ground that they caused him to be deprived of the seniority rights to which he was entitled under the collective bargaining agreement as the result of which he suffered a loss of earnings. The sixth count charges that the railroad, the brotherhood and Giles, acting jointly and severally, deprived him of the extra wages and seniority rights to which he is entitled and demand is made for judgment against them, both jointly and severally, in the sum of $40,000, together with interest.

The complaint as against the railroad was ordered stricken by the trial court on the grounds that the National Railroad Adjustment Board created by the Railway Labor Act, 45 U.S.C., § 151 et seq., 45 U.S.C.A. § 151 et seq., was vested with exclusive jurisdiction over disputes between an employee and a carrier 'growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions'. On a separate appeal this order of the trial court was affirmed by the Appellate Division of the Superior Court, Marchitto v. Central R. Co. of N.J., 18 N.J.Super. 163, 86 A.2d 795 (1952), certification denied, N.J., 88 A.2d 537.

The brotherhood and Giles both moved to strike the complaint as to them on the grounds (1) that the court lacked jurisdiction over the subject matter, the same being vested exclusively in the National Railroad Adjustment Board; (2) that the complaint failed to state a cause of action; and (3) that the plaintiff had failed to exhaust his administrative remedies as provided by the constitution of the brotherhood. In the alternative they requested that the court hold the complaint as to them in abeyance pending the determination of the plaintiff's appeal from the order striking the complaint as to the railroad. Following the submission of sharply conflicting affidavits the trial court granted the defendants' motion and struck the balance of the complaint, stating that:

'* * * This action against the defendants Brotherhood of Railroad Trainmen and Dennis A. Giles is prematurely brought. Until the National Railroad Adjustment Board hears the matter involving the violation of the rights of the plaintiff by the Central Railroad of New Jersey, and renders its decision, the plaintiff cannot be said to have sustained any loss chargeable to the defendants Brotherhood of Railroad Trainmen and Dennis A. Giles.'

The judgment of dismissal, however, provided in addition that the action was being dismissed as against these defendants 'for lack of jurisdiction over the subject matter.' From this judgment the plaintiff appealed to the Appellate Division of the Superior Court and while there pending, we certified the appeal here on our own motion.

An appellate court is necessarily concerned with the propriety of the action appealed from rather than with the reasons advanced by the court below in support thereof, Procacci v. U.S. Fire Insurance Co., 118 N.J.L. 423, 427, 193 A. 180 (E. & A.1937); National Surety Co. v. Clement, 133 N.J.L. 22, 42 A.2d 387 (E. & A.1945); Hughes v. Eisner, 8 N.J. 228, 84 A.2d 626 (1951). Accordingly, on this appeal we must consider whether any of the grounds advanced by the defendants in support of their motion justified the trial court's judgment of dismissal.

(1) Did the trial court have jurisdiction over the subject matter? It is to be observed preliminarily that we are not here concerned with whether or not the trial court had jurisdiction to entertain the plaintiff's claim against the railroad, that issue having been decided adversely to him in Marchitto v. Central R. Co. of N.J., supra, 18 N.J.Super. 163, 86 A.2d 795 (App.Div.1952), certification denied, N.J., 88 A.2d 537, May 19, 1952, but solely with the questions of the trial court's jurisdiction over the plaintiff's claims against the brotherhood and Giles. There is nothing in the Railway Labor Act, 45 U.S.C., § 151, et seq., 45 U.S.C.A. § 151 et seq., which even suggests that the National Railroad Adjustment Board was to have jurisdiction over disputes other than those 'between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions,' 45 U.S.C. § 153(i), 45 U.S.C.A. § 153, subd. 1(i). The plaintiff's claim against these defendants is obviously not against a carrier, although it most certainly is one growing out of an agreement of the type adverted to in the act. Is this fact alone sufficient, as the defendants contend, to vest the National Railroad Adjustment Board with jurisdiction to the exclusion of the courts of this State? Clearly it is not. In Moore v. Illinois C.R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 (1941), the United States Supreme Court held that the act did not take away from the courts the jurisdiction to determine an action to recover damages against a carrier by reason of its wrongful discharge of an employee even though the determination of the action required a construction of a collective bargaining agreement. More recently in Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795 (1950), the United States Supreme Court decided that the National Railroad Adjustment Board did have exclusive jurisdiction over claims for back wages made by a union on behalf of its members against a carrier which involved the interpretation of a collective bargaining agreement, but in so doing it specifically stated:

'Our holding here is not inconsistent with our holding in Moore v. Illinois Cent. R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089. Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad's action in discharging him as final, thereby ceasing to be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide, and does not involve questions of future relations between the railroad and its other employees. If a court in handling such a case must consider some provision of a collective-bargaining agreement, its interpretation would of course have no binding effect on future interpretations by the Board.' (339 U.S., at page 244, 70 S.Ct. at page 580, 94 L.Ed., at page 800).

The defendants cite in support of their contention the case of Piscitelli v. Pennsylvania-Reading S.S. Lines, 11 N.J.Super. 46, 77 A.2d 810 (App.Div.1950), but it is not in conflict with our conclusions here. In that case a discharged employee of the railroad sought reinstatement with back pay and a restoration of seniority rights and accordingly it was held that the trial court was without jurisdiction. It is to be noted moreover, that since the plaintiff there also sought damages against the railroad for illegal discharge, the Appellate Division gave him leave to amend his complaint so that it set forth his choice to...

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