C. Case, et al. v. Hazleton Area Educational Support Personnel Assoc., et al. (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Carmelita Case, Jamie Popso, Linda Schiavo, Geraldine Gordon, Lee Ann Perry, Sharon Turse, Lynn Calvello, Noreen Gunshore, Louise Lyate and Joan Chincola, Appellants v. Hazleton Area Educational Support Personnel Association, Pennsylvania State Education Association and Hazleton Area School District BEFORE: : : : : : : : : : : : : : No. 2241 C.D. 2007 Submitted: May 16, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: July 25, 2008 Carmelita Case, Jamie Popso, Linda Schiavo, Geraldine Gordon, Lee Ann Perry, Sharon Turse, Lynn Calvello, Noreen Gunshore, Louise Lyate, and Joan Chincola (Employees) appeal the order of the Court of Common Pleas of Luzerne County (common pleas court) that denied and dismissed the Employees petition for jury trial and demand for jury trial. This case has a very complicated procedural history. The Employees were all employees of the Hazleton Area School District (District) and members of the Hazleton Area Educational Support Personnel Association (Association) and the Pennsylvania State Education Association (PSEA). On or about July 1, 1998, the Association and the PSEA entered into a collective bargaining agreement with the District. The collective bargaining agreement ran from July 1, 1998, to June 30, 2003. The District submitted an offer to the Association and the PSEA in October of 2004. This proposed contract would run from July 1, 2003, through June 30, 2007. The Employees believed that this proposed contract was fair. The Association and the PSEA advised that the membership reject the offer. The offer was rejected. The Association and the PSEA prepared a counteroffer. membership of the Association approved the counteroffer. The The Employees believed that the counteroffer provided longer term membership employees with smaller salary increases over the length of the contract than the initial offer. The Employees commenced an action in the common pleas court docketed at No. 3371-2005 (3371 action) and requested that the common pleas court order that the counteroffer and approval of the counteroffer be declared unlawful, null, and void. The Employees also sought declaratory relief that the counteroffer and/or the acceptance of it by the District be declared null, void, and of no legal effect. The Employees sought compensatory and punitive damages against the Association and the PSEA. The Employees also named the District as a defendant and sought an order that the District not recognize or accept the counteroffer and a declaratory judgment that any purported agreement or contract resulting from the District s acceptance of the counteroffer be declared illegal, null, void, and of no legal effect whatsoever. The Association, PSEA, and District preliminarily objected on the basis that the common pleas court lacked subject matter jurisdiction, that the 2 Employees failed to state a cause of action, and the Employees failed to exercise or exhaust a statutory remedy. The common pleas court sustained the preliminary objections on the ground it lacked subject matter jurisdiction. The common pleas court determined that the complained of conduct was within the exclusive jurisdiction of the Pennsylvania Labor Relations Board (PLRB). The Employees moved for post-trial relief. The common pleas court denied and dismissed the motion on May 17, 2005. In the same order, the common pleas court denied and dismissed the Employees petition for a jury trial. The Employees appealed the decision to this Court. However, the Employees praeciped to withdraw the appeal on July 14, 2005. On July 15, 2005, this Court marked the appeal discontinued. On June 24, 2005, the Employees filed an unfair labor practices charge with the PLRB against both the District and the Association. The PLRB bifurcated the charges into two separate cases: one against the District and one against the Association.1 1 The Employees alleged that the District violated Sections 1201(a)(1), 1201(a)(3), 1201(a)(5), 1201(a)(6), 1201(a)(7) and 1201(a)(9) of the Public Employe Relations Act (Act). Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §1101.1201(a). Section 1201(a) provides in pertinent part: (a) Public employers, their agents or representatives are prohibited from: (1) Interfering, restraining or coercing employes in the exercise of the rights guaranteed in Article IV of this act. .... (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any employe organization. (Footnote continued on next page ¦) 3 (continued ¦) .... (5) Refusing to bargain collectively in good faith with an employe representative which is the exclusive representative of employes in an appropriate unit, including but not limited to the discussing of grievances with the exclusive representative. (6) Refusing to reduce a collective bargaining agreement to writing and sign such an agreement. (7) Violating any of the rules and regulations established by the board regulating the conduct of representation elections. .... (9) Refusing to comply with the requirements of meet and discuss. By letter dated July 14, 2005, the Secretary of the PLRB informed the Employees that no complaint would issue against the District because the Employees failed to allege specific facts about the alleged violations. Further, the Secretary determined that individual members of a union did not have standing to pursue bargaining violations under Sections 1201(a)(5) and 1201(a)(6) or meet and discuss obligations under Section 1201(a)(9) of PERA. The Secretary also determined that there were no violations of Section 1201(a)(3) and 1201(a)(7) of PERA. The Employees filed exceptions with the PLRB and alleged that the Secretary s decision was invalid and unlawful and that the charges against the District and the Association should not have been bifurcated. The Employees also asserted that they set forth their charges with specificity in both unfair labor practices charge and in the complaint filed with the common pleas court, which was attached to the unfair labor practices charge. On September 20, 2005, the PLRB dismissed the exceptions and adopted the Secretary s decision as absolute and final. The Employees appealed to the common pleas court which reversed and remanded to the PLRB. The common pleas court stated that the charges were within the jurisdiction of the PLRB and remanded for further proceedings. The PLRB appealed to this Court. The PLRB contended that the common pleas court erred when it determined that the PLRB failed to issue a complaint based on the Employees unfair labor practices charge against the District where the Employees lack standing, as a matter of law, to bring unfair labor (Footnote continued on next page ¦) 4 In the Employees claim against the Union, the Employees alleged that the Union violated Sections 1201(b)(1), 1201(b)(3), 1201(b)(4) and 1201(b)(9) of PERA.2 (continued ¦) practices charge against the District for bargaining violations and where the facts alleged, accepted as true, failed to support a cognizable claim for discrimination for protected activity or for the asserted bargaining related causes of action. This Court reversed. This Court agreed with the PLRB that the Employees lacked standing to pursue violations of Section 1201(a)(1), (5), (6), or (9) because only a union and not individual members of a union may bring an unfair labor practices charge. With respect to the discrimination claim alleged as a violation of Section 1201(a)(3), this Court determined that the Employees failed to meet their burden of proving that the District displayed anti-union animus. This Court further agreed with the PLRB that the Employees failed to allege that the District violated any of the rules and regulations established by the PLRB regulating the conduct of representation elections (Section 1201(a)(7) of the Act, 43 P.S. §1101.1201(a)(7)) or interfered, restrained or coerced the Employees with respect to their exercise of their rights guaranteed in Article IV of the Act, 43 P.S. §1101.401, which authorizes employees to organize, form, join or assist in employe organizations or to engage in lawful concerted activities for the purpose of collective bargaining or other mutual aid and protection or to bargain collectively through representatives of their own free choice. . . in violation of Section 1201(a)(1) of the Act, 43 P.S. §1101.1201(a)(1). Case v. Hazleton Area School District, 915 A.2d 1262 (Pa. Cmwlth. 2007). 2 Section 1201 of PERA provides in pertinent part: (b) Employe organizations, their agents, or representatives, or public employes are prohibited from: (1) Restraining or coercing employes in the exercise of the rights guaranteed in Article IV of this act. .... (3) Refusing to bargain collectively in good faith with a public employer, if they have been designated in accordance with the provisions of this act as the exclusive representative of employes in an appropriate unit. (4) Violating any of the rules and regulations established by the [B]oard regulating the conduct of representation elections. .... (Footnote continued on next page ¦) 5 By letter dated July 14, 2005, the Secretary of the PLRB informed the Employees that no complaint would issue because allegations regarding a breach of the duty of fair representation were the jurisdiction of the common pleas court and not the PLRB, the Employees lacked standing to file claims of violations of good faith bargaining obligations or the duty to meet and discuss, and because the alleged discrimination was not because of participation in activities protected by PERA. The Employees filed exceptions with the PLRB and alleged that the Secretary s decision was invalid and unlawful and that the charges against the District and the Association should not have been bifurcated. The Employees also asserted that they set forth their charges with specificity in both the unfair labor practices claim and in the complaint filed with the common pleas court, which was attached to the unfair labor practices claim. On September 20, 2005, the PLRB dismissed the exceptions and adopted the Secretary s decision as absolute and final. The Employees appealed to the common pleas court which reversed and remanded to the PLRB. The common pleas court stated that the charges were within the jurisdiction of the PLRB and remanded for further proceedings. Order (continued ¦) (9) Refusing to comply with the requirements of meet and discuss. 6 of the Court of Common Pleas of Luzerne County, April 26, 2006, at 1; Reproduced Record (R.R.) at 53. The PLRB appealed to this Court. The PLRB contended before this Court that the common pleas court erred when it determined that the PLRB had jurisdiction over the Employees claim that alleged a breach of the duty of fair representation against the Association. The PLRB argued that a breach of the duty of fair representation claim is a civil action against the Association for damages that should be brought in the common pleas court, not as an administrative claim for unfair practices. This Court determined that individual claims by employees against the union that allege a breach of the duty of fair representation do not qualify as unfair labor practices in violation of PERA. Moreover, this Court determined that the duty to bargain in good faith, as required by Section 1201(b)(3) of PERA, 43 P.S. §1101.1201(b)(3), is owed by the union to the employer, not the individual employee members. This Court held that the PLRB s refusal to issue a complaint on the Employees breach of the duty of fair representation claim for lack of jurisdiction was proper. On July 9, 2007, this Court reversed and remanded for further proceedings consistent with its opinion. Case v. Hazleton Area Educational Support Personnel Association, 928 A.2d 1154 (Pa. Cmwlth. 2007). On July 25, 2007, the Employees petitioned for a jury trial in the common pleas court in the 3371 action. The same day, the Employees demanded a jury trial in the 3371 action. It was the first action taken in the case since this Court marked the appeal discontinued on July 15, 2007. 7 On November 8, 2007, the common pleas court denied and dismissed the petition for a jury trial and the demand for a jury trial. The common pleas court determined: Essentially, Plaintiffs [Employees] argue the April 27, 2005 Order sustaining Defendants [the Association, the PSEA, and the District] preliminary objections in No. 3371-2005 was interlocutory and not a final order as that term is understood pursuant to Pa.R.A.P. 341. Plaintiffs [Employees] Counsel in his brief submitted on September 18, 2007 argues, in part, that they had no choice but to follow the Common Pleas Order issued on April 27, 2005. The Plaintiffs [Employees] decided to follow the same as they had to, not having the right as the party not benefited thereby to file an appeal there from as of right . . . for them to do so otherwise would put them in disobedience to or resistance of the April 27, 2005 Order and thus in contempt thereof . This suggestion is simply absurd. As indicated by a previous review of this record, Plaintiffs [Employees] did in fact file an appeal from that decision with Commonwealth Court. They then made a determination to file a Praecipe to Withdraw that appeal on July 15, 2005. We reiterate the statement in our July 11, 2005 Memorandum in response to Plaintiffs [Employees] Concise Statement indicating that orders sustaining preliminary objections are final and appealable and further it appeared Plaintiffs [Employees] had failed to appeal the determination regarding preliminary objections within the prescribed thirty (30) day appeal period. Commonwealth Court surely could have considered the substance of that appeal as it did in the PLRB s subsequent appeal, and concluded Common Pleas erred in determining it lacked subject matter jurisdiction. . . . Plaintiffs [Employees] present position essentially seeks to have its original allegations against the ASSOCIATION filed to No. 3371-2005 proceed as if Commonwealth Court sustained its original withdrawn appeal. While we certainly recognize and appreciate the correctness of Plaintiffs [Employees] original substantive position regarding subject matter jurisdiction, we cannot ignore the procedural posture of the litigation relating to 8 Commonwealth Court s July 9, 2007 Opinion. Plaintiffs [Employees] position appears to be that the litigation filed to No. 3371-2005 remained dormant or in limbo while they proceeded with the Complaints before the PLRB and since the ultimate determination by Commonwealth Court in that context aligned itself with the original position asserted by Plaintiffs [Employees] in the 3371-2005 case Plaintiffs [Employees] should be permitted to simply resume those proceedings. Stated differently, Plaintiffs [Employees] apparently argue their initial position has been affirmed by the Commonwealth Court, albeit in a circuitous fashion. For the aforementioned reasons we reject this position. The original Order appealed from was not interlocutory simply because Plaintiffs [Employees] Counsel made this statement in the praecipe withdrawing that appeal. Common Pleas Court Opinion, November 8, 2007, at 6-7; R.R. at 91-92. The Employees contend that the common pleas court erred and abused its discretion when it denied and dismissed the petition for a jury trial and the demand for a jury trial because the denials violated the July 9, 2007, Opinion and Order of this Court in Case v. Hazleton Area Educational Support Personnel Association, 928 A.2d 1154 (Pa. Cmwlth. 2007). The Employees also contend that this Court may at anytime upon its own motion or upon application issue an order requiring obedience to the July 9, 2007, order.3 The Employees assert that the common pleas court erred when it determined that the Employees failure to appeal the April 27, 2005, order which 3 This Court s review is limited to a determination of whether the common pleas court abused its discretion or committed an error of law. Milan v. Department of Transportation, 620 A.2d 721 (Pa. Cmwlth.), petition for allowance of appeal denied, 535 Pa. 650, 633 A.2d 154 (1993). 9 dismissed their appeal in the 3371 action precluded the trial court from granting the Employees demand for a jury trial and petition for jury trial. The Employees assert that the April 27, 2005, order was not a final order under Pa.R.A.P. 341. Pa.R.A.P. 341 provides in pertinent part: (a) General rule. Except as prescribed in subdivisions (d) and (e) of this rule, an appeal may be taken as of right from any final order of an administrative agency or lower court. (b) Definition of final order. A final order is any order that: (1) disposes of all claims and of all parties; or (2) is expressly defined as a final order by statute; or (3) is entered as a final order pursuant to subdivision (c) of this rule. The trial court determined that this order was final and not interlocutory. This Court agrees. When the trial court sustained preliminary objections in the nature of a demurrer, the order disposed of all claims and of all parties. In Murphy v. Pennsylvania, Department of Transportation, 733 A.2d 688 (Pa. Cmwlth. 1999), this Court held that an order sustaining preliminary objections and dismissing a complaint was a final appealable order. The Employees certainly had the opportunity to appeal this order. In fact, the Employees did appeal this order to this Court but subsequently withdrew it. The Employees fail to cite any statute, case law, or rule of appellate procedure which states that this Court s decision in another case involving the same parties may be used to reopen another case for which a final order has already been issued and not appealed. 10 The Employees also contend that this Court may at anytime upon its own motion or upon application issue an order requiring obedience to the remand order. Pa.R.A.P. 2591 provides in pertinent part: (a) General rule. On remand of the record the court or other government unit below shall proceed in accordance with the judgment or other order of the appellate court and, except as otherwise provided in such order, Rule 1701(a) (effect of appeals generally) shall no longer be applicable to the matter. (b) Enforcement of appellate court orders. At any time, upon its own motion or upon application, an appellate court may issue any appropriate order requiring obedience to or otherwise enforcing its judgment or other order. The Employees argue that this Court intended in its remand order for the trial court to reopen and reconsider the 3371 action. That is simply not the case. This Court s opinion only referred to the 3371 action in its description of the history of the dealings between the parties. No reading of this Court s opinion could conceivably lead one to support the Employees position. Accordingly, this Court affirms. ___________________________ BERNARD L. McGINLEY, Judge 11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Carmelita Case, Jamie Popso, Linda Schiavo, Geraldine Gordon, Lee Ann Perry, Sharon Turse, Lynn Calvello, Noreen Gunshore, Louise Lyate and Joan Chincola, Appellants v. Hazleton Area Educational Support Personnel Association, Pennsylvania State Education Association and Hazleton Area School District : : : : : : : : : : : : : No. 2241 C.D. 2007 ORDER AND NOW, this 25th day of July, 2008, the order of the Court of Common Pleas of Luzerne County in the above-captioned matter is affirmed. ____________________________ BERNARD L. McGINLEY, Judge

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