School Committee of Town of North Providence v. North Providence Federation of Teachers, Local No. 920 (AFL-CIO), AFL-CIO

• Decision Date: 06 June 1984
• Docket Number: AFL-CIO
• Citation: 476 A.2d 1037
• Parties: 17 Ed. Law Rep. 1162 SCHOOL COMMITTEE OF the TOWN OF NORTH PROVIDENCE v. NORTH PROVIDENCE FEDERATION OF TEACHERS, LOCAL NO. 920 (). 81-120-Appeal.
• Court: Rhode Island Supreme Court

Page 1037

476 A.2d 1037

17 Ed. Law Rep. 1162

SCHOOL COMMITTEE OF the TOWN OF NORTH PROVIDENCE v. NORTH PROVIDENCE FEDERATION OF TEACHERS, LOCAL NO. 920 (AFL-CIO).

81-120-Appeal.

Supreme Court of Rhode Island.

June 6, 1984.

Robert S. Ciresi, North Providence, for plaintiff.

Richard A. Skolnik, Frederick G. Cass, Abedon, Michaelson, Stanzler, Biener, Skolnik & Lipsey, Providence, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us for the second time on appeal from a judgment of the Superior Court. An earlier appeal in this same case was decided in School Committee of North Providence v. North Providence Federation of Teachers, Local 920 (AFL-CIO), R.I. 404 A.2d 493 (1979). It will be helpful if we first consider the issues that were raised in that case before setting forth the facts underlying the instant appeal.

An action was brought by the School Committee of the Town of North Providence (school committee) against the North Providence Federation of Teachers, Local No. 920, AFL-CIO (the union) on November 16, 1977, in order to vacate an arbitrator's award that had been rendered in interpretation of a collective-bargaining contract theretofore existing between the committee and the union. In bringing this action, the committee had failed to comply with the provisions of G.L. 1956 (1969 Reenactment) § 9-2-12, which governs the method by which an action may be brought against unincorporated associations. As we pointed out in the preceding case (North Providence I), the statute requires that such an action "be maintained against the president and secretary * * * if such persons exist." 404 A.2d at 494. Instead of bringing action against these persons, the school committee named the union as the party defendant and served the complaint upon a person believed to be the union's attorney. Thereafter, on December 10, 1977, the school committee filed an amended complaint that added as party defendants the president and the secretary of the union. In spite of the existence of the amended complaint, a justice of the Superior Court granted the union's motion to dismiss the original complaint with prejudice.

On appeal, we stated that the trial justice did not err in dismissing the complaint, but we further held that it was inappropriate to dismiss the complaint with prejudice. We observed that a dismissal under Rule 12(b)(5) of the Superior Court Rules of Civil Procedure for insufficiency of process does not have the effect of res judicata because it is not an adjudication on the merits. We went on to state:

"Therefore, such a dismissal does not prejudice the plaintiff's right to file another complaint naming the proper party." 404 A.2d at 495.

Upon remand to the Superior Court for further proceedings in accordance with our opinion, the trial justice dismissed the 1977 action (C.A. 77-3501) on August 28, 1979. On November 8, 1979, the school committee filed a new complaint entitled "Motion for an Order to Vacate an Arbitrator's Award." This new complaint was docketed as M.P. 13465 (North Providence II). The complaint or motion was brought directly against the union and did not name the president and the secretary as parties. However, notice by mail was given to the president of the union, although no notice was given to the secretary. The union appeared specially to challenge jurisdiction over the party defendant for failure to comply with § 9-1-12. It is interesting to note that in spite of the special appearance, the union filed a counterclaim seeking to confirm and enforce the arbitrator's award. ¹

This matter came before a second justice of the Superior Court who declined to stay the arbitrator's award but otherwise took the issues under advisement on December 5, 1979. On December 22, 1980, this second justice issued a rescript in which he (1) regarded North Providence I as still existing by reason of the amended complaint that had been filed therein prior to dismissal and (2) took the position that the later-filed North Providence II was merely surplusage. We believe that the trial justice was in error in purporting to revive and pass upon a civil action that had been dismissed by a prior trial justice without prejudice pursuant to a direction by this court. We had stated, with full knowledge of the existence of the amended complaint, that it was not error for the first trial justice to have dismissed North Providence I without prejudice. That action had the effect of ending the existence of that civil action. The right of the committee to bring a new action was then governed by the provisions of § 9-1-22, which generally provides that if an action is terminated in any other manner than by a final judgment upon the merits, the plaintiff may commence a new action within one year after termination. This privilege is limited by the terms of § 9-1-24, which states that the one-year period shall not apply in situations in which a different time period is prescribed by special provisions.

In any event, the trial justice did not pass upon any of the union's objections to the adequacy of service of process in North Providence II but attempted to revive and render a decision in connection with a case that had already been dismissed, albeit without prejudice, by order of this court. This the trial justice had no authority to do. The dismissal of North Providence I terminated its existence subject only to the right of the committee to bring a new action. The trial justice had no power to revive the dismissed action either by inherent power or by virtue of any existing statute or rule of court. His decision in that case then had no force or effect.

Ordinarily we would remand this case to the Superior Court for consideration of North Providence II, including the challenge to jurisdiction and the counterclaim seeking confirmation of the award. However, in view of the fact that this case has twice come before us and further in view of the fact that this litigation has dragged on for six and a half years without reaching the merits of the controversy, we shall examine these merits in...