Patriot-News Co. v. Harrisburg Printing Pressmen

• Decision Date: 31 January 1961
• Docket Number: Civ. A. No. 6778.
• Citation: 191 F. Supp. 568
• Parties: PATRIOT-NEWS COMPANY, Plaintiff, v. HARRISBURG PRINTING PRESSMEN and Assistants Union No. 123, Robert M. Houseal, Warren Gross, Richard Kemp, William K. Swartz, Jr., Howard E. McCurdy, George Gardner, Russell E. Lyter, Sr., Otto Buchle, Jr., and Joseph G. Buccieri, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

191 F. Supp. 568

PATRIOT-NEWS COMPANY, Plaintiff, v. HARRISBURG PRINTING PRESSMEN and Assistants Union No. 123, Robert M. Houseal, Warren Gross, Richard Kemp, William K. Swartz, Jr., Howard E. McCurdy, George Gardner, Russell E. Lyter, Sr., Otto Buchle, Jr., and Joseph G. Buccieri, Defendants.

Civ. A. No. 6778.

United States District Court M. D. Pennsylvania.

January 31, 1961.

Nauman, Smith, Shissler & Hall, Harrisburg, Pa., for plaintiff.

Sidney G. Handler, Harrisburg, Pa., for defendants.

FOLLMER, District Judge.

Plaintiff filed a Complaint against the Defendant Union and various individual members of the Union in the Court of Common Pleas of Dauphin County, Pennsylvania. The Complaint alleges that Plaintiff and the Defendant Union had entered into a collective labor agreement and that the individual defendants were members of the Defendant Union. The basis for damages sought is that "The defendants breached the said collective labor agreement."

The defendants having removed the cause to this Court, plaintiff moved to remand. Plaintiff and the individual defendants are all citizens of Pennsylvania. Plaintiff's "Memorandum In Support Of Motion To Remand" sets forth the "Statement of Question Involved" as being "May an action for damages for breach of contract brought by an employer against a Pennsylvania labor organization and certain named individuals, all of whom were members of the labor organization and residents of Pennsylvania in the Court of Common Pleas of Dauphin County be removed to the Federal Court upon the motion of all the Defendants?"

The removal statute, 28 U.S.C. § 1441, provides, inter alia:

"(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

"(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction."

And 29 U.S.C.A. § 185 (§ 301 of the Labor Management Relations Act) provides, inter alia:

"(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

"(b) Any labor organization which represents employees in an industry affecting commerce as defined in this chapter and any employer whose activities affect commerce as defined in this chapter shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets."

Since the removal statute is to be strictly construed and removal should not be granted if there is doubt as to the right of removal in the first instance, Old Reading Brewery, Inc. v. Lebanon Valley Brewing Co., D.C.M.D.Pa., 102 F.Supp. 434; Swift & Company v. United Packinghouse Workers of America, D.C. Colo., 177 F.Supp. 511, we are met with the question of the status of the suit against the individual members of the Union.

We need not belabor the question whether the action against the Union constitutes a separate and independent claim or cause of action within the meaning of subsection (c) of the removal statute. We have here nothing more than one action for damages for a single wrong for breach of the labor agreement, Mayflower Industries v. Thor Corp., 3 Cir., 184 F.2d 537; American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702. This is clear from the pleadings, and as stated by Judge Forman in Montrey v. Peter J. Schweitzer, Inc., D.C.N.J., 105 F.Supp. 708, 712, "Admittedly, the right of removal is to be resolved according to the plaintiff's pleadings at the time of the petition for removal."

Plaintiff argues that it might have brought a common law tort action in the State Court against the individuals as to which there would be no diversity. In San Diego Building Trades Council, Milkmen's Union, Local 2020 et al. v. Garmon et al., 359 U.S. 236, 247, 79 S.Ct. 773, 781, 3 L.Ed.2d 775. The Court said: "It is true that we have allowed the States to grant compensation for the consequences, as defined by...