Opinion
No. 113 C.D. 2013
12-05-2013
Daniel Merriman, Appellant v. Philadelphia Parking Authority
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Daniel Merriman appeals from a November 8, 2012 order of the Philadelphia County Court of Common Pleas (trial court) that sustained the preliminary objection of the Philadelphia Parking Authority (PPA) for lack of subject matter jurisdiction, and dismissed Merriman's complaint against PPA for wrongful termination. Finding no error in the trial court's decision, we affirm.
Merriman was employed, for eight years, by PPA as a parking enforcement officer and, as such, was represented by the American Federation of State, County and Municipal Employees D.C. 33, Local 403 (Union). The Union maintains a Collective Bargaining Agreement (CBA) with PPA. In January, 2012, Merriman's employment was terminated for failing to maintain a valid state issued driver's license, failing to report an invalid license and illegal operation of a PPA vehicle due to his invalid license. In accordance with the CBA, Merriman followed the grievance process, including three graduated "step" grievance proceedings conducted in February and March, 2012; at each step, Merriman's termination from employment was upheld. The Grievance and Arbitration Procedure specified in the CBA includes a Step 4 that states: "If no satisfactory settlement is reached...the grievance may be appealed to arbitration by the Union upon written notice to [the PPA] and the American Arbitration Association within thirty (30) days of the answer of the Executive Director or her/his designee. The arbitration shall proceed in accordance with the then current rules of the American Arbitration Association." (CBA, Article XXII, Recorded Record (R.R.) at 54a.) (emphasis added.) The CBA further specifies that a grievance shall be considered settled on the basis of the PPA's last answer if not appealed to the next step or to arbitration within the specified time limitations, and dictates that the expenses of the arbitrator's fee shall be borne equally by all parties. (Id., R.R. at 54a-55a.)
On April 4, 2012, Merriman, represented by Richard J. Gerace, Esq., filed a Demand for Arbitration with the American Arbitration Association (AAA), with a cover letter stating that the Union's Business Agent, Stanley Shelton was sending counsel "written authorization to proceed in this manner on behalf of Mr. Merriman." (R.R. at 51a.) The record contains a copy of an undated handwritten memo from Union's President to Merriman stating "[w]e at Local 403 District Council 33 are given [sp] permission for Attorney Richard J. Gerace to arbitrate for Daniel Merriman to the American Arbitration Association at no cost to Local 403." (R.R. at 49a.)
The record also contains a letter from Union's Business Agent dated November 27, 2012 (after the trial court's dismissal of Merriman's case) that states: "[p]lease be advised that in the above matter, Richard J. Gerace has always been, and continues to act on behalf of the Union as the Union's lawyer in the representation of Daniel Merriman." (R.R. at 116a.)
In an April 4, 2012 email, AAA acknowledged receipt of Merriman's Demand for Arbitration and advised counsel that:
[T]he collective bargaining agreement giving [AAA] the authority to handle disputes between the parties is with the Union and the Employer. Please be advised that all parties must agree to have you bring this case on behalf of the grievant to arbitration. While I understand that you will be providing a letter from Stanley Shelton of the Union giving you authority to represent the grievant, the Employer must also agree. We suggest that you contact Dennis Weldon in the legal department of [PPA] for agreement.(R.R. at 57a.) On the following day, April 5, 2012, PPA's General Counsel sent an email to AAA stating, "PPA does not consent and will not participate in the matter filed by Mr. Gerace." (Id.)
Merriman commenced the instant litigation by filing a complaint in June, 2012, in his name alone, alleging wrongful termination, and demanding compensatory and punitive damages against PPA. (R.R. at 21a-24a.) On July 16, 2012, PPA filed a single preliminary objection, for lack of subject matter jurisdiction. (R.R. at 27a-29a.) Following oral argument on November 8, 2012, the trial court sustained PPA's preliminary objection and dismissed Merriman's complaint. (R.R. at 106a.) At oral argument before the trial court, Merriman's counsel asserted that Merriman was not acting apart from the Union in filing a Demand for Arbitration but rather, the Union had empowered counsel to act both on its own behalf and on behalf of Merriman, because the Union did not want to charge its members with arbitration fees. (Notes of Testimony (N.T.), R.R. at 101a.) Before the trial court, Merriman's counsel maintained that the action had been filed in response to PPA's repudiation and refusal to arbitrate, and indicated, in response to a question from the trial court, that appropriate relief would be an order compelling such arbitration. (N.T., R.R. at 101a-102a.) PPA's General Counsel asserted that pursuant to the CBA, only the Union may bring a case to arbitration, and testified as to why he believed the Union failed to do so in this case:
This employee was fired for not having a driver's license. He operated a [PPA] vehicle at least six times without a driver's license; that's a violation of Live Stop laws, you are familiar with. Theoretically, we could have impounded our own vehicle because one of the drivers was driving around without a driver's license.(N.T., R.R. at 99a-100a.)
PPA's General Counsel further stated that PPA had no discretion as to whether or not to participate if arbitration is requested by the Union. (N.T., R.R. at 103a.) On March 20, 2013, the trial court issued an opinion in support of its order, stating that the sole issue raised in the complaint filed against PPA is Merriman's termination, and pursuant to the CBA, review of that termination rests first with PPA, and then with mandated arbitration through AAA. (trial court opinion, R.R. at 150a.) The trial court stated:
It is clear from the plain language of the CBA that Merriman's sole remedy in this labor dispute is to complete the grievance process. If his bargaining agent failed to properly represent his interests in that process, Merriman's claim lies against [the Union], not [PPA]. In fact, Merriman does not dispute any of this. Instead, he contends that he attempted to submit the matter to AAA arbitration as set forth in the CBA but [PPA] refused, leaving him no choice but to commence this litigation. This argument must fail, however, because the CBA still divests subject matter jurisdiction from this court on the
underlying matter. Merriman could have asked this court to compel Arbitration pursuant to the CBA. He did not. Instead he filed this civil action alleging wrongful termination. The fact remains that the existence of the CBA prevents this court from having jurisdiction of the wrongful termination complaint.(trial court opinion, R.R. at 152a-153a.)
On appeal to this Court, Merriman argues that the record irrefutably establishes that the Union appointed counsel to represent its interests, as well as the interests of Merriman, and the trial court ruled in error when it agreed with PPA that the Union did not demand arbitration. As an initial matter, we note that the trial court did not make a determination as to whether the Union did or did not make a Demand for Arbitration, nor did it determine that PPA refused such a demand from the Union. Rather, the trial court examined the matter before it, a civil action alleging wrongful termination, and determined that the plain language of the CBA established that Merriman's sole remedy in this labor dispute was to complete the grievance process. (trial court opinion, R.R. at 152a.) The trial court noted that in his pleadings Merriman could have requested that the court compel arbitration, but did not. Indeed, Merriman had the option to amend his pleadings within twenty days after service of PPA's preliminary objection, but chose not to do so. Pa.R.C.P. No. 1028(c)(1). As stated, the only issues raised in Merriman's complaint involved wrongful termination.
Our review of a trial court's order sustaining preliminary objections and dismissing a complaint is limited to determining whether the trial court abused its discretion or committed an error or law. Such review raises a question of law as to which our standard of review is de novo and our scope of review is plenary. Petty v. Hospital Service Association of Northeastern Pennsylvania, 967 A.2d 439, 443, n.4 (Pa. Cmwlth. 2009), affirmed, 611 Pa. 119, 23 A.3d 1004 (2011) (citations omitted.)
Indeed, the record evidence clearly supports PPA's assertion that the Union did not elect to arbitrate Merriman's grievance: the Union's note to counsel indicates that it is authorizing counsel to arbitrate for Merriman at no cost to the Union, although the CBA specifies that the expenses of the arbitrator's fee shall be borne equally by the parties. (CBA, XXII.G.3., R.R. at 77a.). Counsel's cover letter to AAA indicates that the Union will be providing written authorization to proceed "on behalf of Mr. Merriman," but does not indicate that counsel is proceeding on behalf of the Union. (R.R. at 52a.) AAA's email to counsel confirms receipt of the demand for arbitration filed "on behalf of Daniel L. Merriman against [PPA]" and advises that the CBA gives AAA authority to handle disputes between the Union and PPA. (R.R. at 57a.) PPA's email to AAA indicates that PPA does not consent and will not participate in the matter filed by counsel. (Id.) A letter from the Union indicating that counsel "has always been, and continues to act on behalf of the Union as the Union's lawyer in the representation of Daniel Merriman," is dated November 27, 2012, and is attached as Exhibit A to Merriman's Motion for Reconsideration filed subsequent to the trial court's November 8, 2012 Order. --------
As the trial court noted, Merriman as a "public employee" and PPA as a "public employer" are subject to the terms of Pennsylvania's Public Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-1101.2301 (PERA), and Section 903 of PERA mandates that disputes related to subjects addressed in collective bargaining agreements must be submitted to binding arbitration. 43 P.S. §1101.903. Further, in Garzella v. Borough of Dunmore, 62 A.3d 486 (Pa. Cmwlth. 2013), appeal denied, ___ Pa. ___, 72 A.3d 605 (2013), a recent case involving employees who initiated a civil action against their employer and their union alleging, inter alia, that the employer violated a term of the relevant collective bargaining agreement and the union failed to provide proper representation, this Court stated:
The law applicable to this case is clear. It is well established under both our Supreme Court's Martino and Ziccardi decisions and the decisions of this Court that an aggrieved public employee cannot sue his employer for breach of a labor contract governed by state collective bargaining laws, even where the union has in bad faith refused to bring his grievance to arbitration, unless he shows, by specific facts, that the employer actively participated in the union's bad faith or that the employer
conspired or colluded with the union to deny the employee his rights under the labor contract.Id., 62 A.3d at 494 (emphasis in original), (citing Martino v. Transport Workers' Union of Philadelphia, Local 234, 505 Pa. 391, 394, 397, 406-08, 480 A.2d 242, 244-45, 250-51 (1984) and Ziccardi v. Commonwealth, 500 Pa. 326, 332, 456 A.2d 979, 981-82 (1982) (additional citations omitted)).
Here, there is no allegation of bad faith by Merriman or collusion between the PPA and the Union. Accordingly, "[t]he employee may obtain relief against the employer for violation of the labor contract, but only through arbitration of a grievance under the contract's grievance procedures." Garzella, 62 A.3d at 494 (citations omitted.)
Before this Court, Merriman argues that the trial court's order leaves the Union and Merriman with no forum in which to resolve PPA's wrongful termination, and that by rejecting the Union's and Merriman's demand for arbitration, PPA has waived the opportunity to arbitrate and opened itself up to litigation in the trial court. These arguments are premised upon our acceptance as fact that (i) the Union duly requested arbitration of Merriman's grievance, and (ii) that PPA, in defiance of the mandates of the CBA, rejected the Union's request. Despite the allegations and counter-allegations contained in Merriman's brief and reply brief, Merriman's complaint was for wrongful termination, and did not contain a direct averment that the Union requested arbitration, nor did it request that the trial court order an arbitration. The complaint before the trial court sought only a determination as to the issue of wrongful termination, and as stated, the trial court lacked jurisdiction, given the existence of the CBA.
Because we find no error of law or abuse of discretion, the trial court order sustaining PPA's preliminary objection and dismissing Merriman's complaint is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 5th day of December, 2013, the order of the Philadelphia County Court of Common Pleas is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge