Moreschi v. Mosteller, 362.

• Decision Date: 16 June 1939
• Docket Number: No. 362.,362.
• Citation: 28 F. Supp. 613
• Parties: MORESCHI, General President of International Hod Carriers', Building and Common Laborers Union of America, et al. v. MOSTELLER et al.
• Court: U.S. District Court — Western District of Pennsylvania

28 F. Supp. 613

MORESCHI, General President of International Hod Carriers', Building and Common Laborers Union of America, et al. v. MOSTELLER et al.

No. 362.

District Court, W. D. Pennsylvania.

June 16, 1939.

John R. Frankel and Ben Paul Jubelirer, both of Pittsburgh, Pa., for complainants.

C. B. Nixon, of Pittsburgh, Pa., and Frank S. Lucente and Frank A. Orban, Jr., both of Somerset, Pa., for defendants.

SCHOONMAKER, District Judge.

Joseph V. Moreschi, a citizen of Massachusetts, and General President of the International Hod Carriers', Building and Common Laborers Union of America, an unincorporated association, for himself and in behalf of the individual and collective members, officers, and constituted local unions thereof, sue the partnership known as the County Construction Company, the Somerset County Independent Construction Workers Association, and the Pennsylvania Construction Workers Association, both Pennsylvania corporations, for specific performance of a contract dated April 14, 1939, between the County Construction Company and the International Hod Carriers', Building and Common Laborers Union of America, whereby the County Construction Company agreed to employ on their construction work, no laborers but those who are members of said Union, and fixed the rate of pay, hours of work, and conditions of the employment.

The complaint charges that the County Construction Company has failed to carry out this contract, and that the defendants, their members, agents, aiders, and associates, by force and violence, ejected plaintiffs' members from the jobs of the County Construction Company in Somerset County, Pennsylvania, and prevented them from working on such jobs, as well as other jobs of a similar nature in Somerset County. As relief, plaintiff asks specific performance of this contract and an injunction to restrain defendants from preventing the Union to furnish labor, as required by the contract.

The defendant County Construction Company has answered the bill, admitting the contract with the plaintiffs' Union, but denying any riotous or tortious conduct on its part; but admitting that conduct alleged in the bill had rendered the contract set out in the complaint useless, and if persisted in, such conduct will render the contract void and valueless; and that plaintiffs' Union will not be able to work thereunder. This defendant avers it is working on a highway contract made with the Pennsylvania Turnpike Commission, and by the terms of the contract it is provided that preference in employment of workmen be given to persons from the public-relief rolls; and that if the Construction Company wishes to employ union workers, they should be gotten from the local unions, but if not so furnished, workers are to be chosen from list of qualified workers submitted by local agencies designated by the United States Employment Service. This defendant further avers that in the course of the execution of the contract, disturbances arose between members of plaintiffs' Union, and non-union and unorganized laborers as described in the complaint; that this defendant did not participate therein, and is innocent of any unlawful act or breach of the contract; that such acts of violence were injurious to the interests of this defendant in the orderly prosecution of the public work; that by reason of these disorders, this defendant was temporarily unable to employ the necessary labor for the execution of the contract, and plaintiffs' Union was unable to supply that labor; and that by reason of such exigency the County Construction Company went into the open market and employed the necessary workers for the prosecution of the work.

The other defendants have filed a motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c, and have assigned as reasons therefor:

(1) That this court has no jurisdiction, because:

(a) Plaintiffs merely allege damage in excess of $3,000, and there are no sufficient averments in the complaint that the amount in controversy is in excess of $3000, exclusive of interest and costs.

(b) The acts complained of are crimes of which this court would have no jurisdiction to try the defendants without a jury.

(c) The acts complained of are criminal, and this court will not enjoin the commission of crimes.

(d) The complaint alleges facts which set forth a labor dispute within the purview of the Act of Congress of March 23, 1932, (29 U.S.C.A. § 101 et seq.).

(e) No facts are alleged which bring this within this Act of Congress.

(f) The complaint set forth a labor dispute which is within the purview of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and the Pennsylvania Labor Relations Act of June 1, 1937, P.L. 1168, 43 P.S.Pa. § 211.1 et seq., which gives the respective Labor Relations Board exclusive jurisdiction of such controversies.

(2) There is no diversity of citizenship alleged in the complaint.

(3) The complaint should be dismissed by reason of scandalous matter alleged in Paragraphs 13, 14, 15, 16, and 17 of the complaint under Rule 11 of the Federal Rules of Civil Procedure.

(4) There is a similar suit pending in the Court of Common Pleas of Somerset County, Pennsylvania, brought by plaintiff against defendants as proposed corporations and their incorporators, in which that court denied plaintiffs a preliminary injunction.

(5) By reason of laches on the part of plaintiff there is no emergency which requires a preliminary injunction.

(6) The complaint fails to state a cause of action against defendants by reason of the fact that all of the acts complained of were committed prior to the incorporation of defendants.

The case was heard on plaintiffs' motion for a preliminary injunction to restrain defendants from interfering with the plaintiffs in furnishing laborers under their contract with the County Construction Company, and from molesting or interfering with the workers so furnished, and also on the motion of the Somerset County Independent Construction Workers Association and the Pennsylvania Independent Construction Workers Association to dismiss for lack of jurisdiction.

At the hearing of these motions, there was offered in evidence a certified copy of docket entries of a case filed May 15, 1939, at No. 1 September Term, 1939, Equity Docket, in which the International Hod Carriers', Building and Common Laborers Union of America, Local Union No. 508, and the International Hod Carriers', Building and Common Laborers Union of America are the plaintiffs and the Somerset County Independents, an unincorporated association, with its officers; the Somerset County Construction Workers Association, a proposed corporation, its incorporators and directors; and the Pennsylvania Independent Workers Association, a proposed corporation, its incorporators and directors; and certain other persons named as agents, aiders and abettors, are named as defendants. In this case, the plaintiffs are seeking the same injunctive relief as the plaintiffs are asking in the instant case. The County Construction Company is not made a party to that suit. The docket entries do not show any relief granted, but it was orally stated by counsel that the Court of Common Pleas of Somerset County refused plaintiffs' motion for a preliminary injunction.

The complaint in the instant case was filed in this court on June 1, 1939.

The instant case presents two separable controversies: (1) Involving plaintiffs' prayer for specific performance of their contract with the County Construction Company; and (2) Involving plaintiffs' prayer for injunction against defendant-corporations to restrain them from interfering with plaintiffs in the performance of the contract of the Union to supply Union workers for the County Construction Company.

At the argument of the action to dismiss, these defendants pressed the following objections: (1) Lack of jurisdiction, because there is no diversity of citizenship alleged; (2) No averment that the amount in controversy exceeds $3,000, exclusive of interest and costs; and (3) the complaint shows that the case involves and grows out of a labor dispute and therefore this court is without jurisdiction to grant an injunction in the absence of any averments in the complaint averring compliance with statutory requirements which are the necessary prerequisites to this issuance of a court injunction.

The first point raises the question as to whether or not the diversity of citizenship in the instant case can be predicated on the fact that the suit is entitled: "Joseph v. Moreschi, General President of the International Hod Carriers', Building and Common Laborers Union of America, an unincorporated association, for himself and on behalf of the individual and collective members, officers, and constituent local unions thereof, complainant v. W. R. Mosteller, et al., defendants," when Moreschi is a citizen of Massachusetts; and the defendants are citizens of Pennsylvania. In the body of the complaint, however, it is stated:

"The International Hod Carriers', Building and Common Laborers Union of America, the Complainants herein, respectfully complain and say:

"First: The plaintiff, International Hod Carriers', Building and Common Laborers Union of America, is an unincorporated association existing and operating throughout the United States of America with its executive offices located at #25 School Street, Quincy, Massachusetts; is an organization with jurisdiction over all skilled, unskilled and semi-skilled workers in the heavy construction industry and consists of local unions of skilled, unskilled and semi-skilled workers acknowledging its jurisdiction and subject to its constitution, laws and usages.

"Second: The International Hod Carriers', Building and Common Laborers' Union of America, local No. 508 is a lawfully organized existing and operating labor organization of skilled, unskilled and semi-skilled workers in the...