Dissenting Opinion
McWherter, J.,August 4,1949.
Plaintiff, Charles B. Trimble, brought a suit in assumpsit for $420.19. Counsel for defendant, Robertshaw Thermostat Company, filed a demurrer and motion for more specific pleadings. By a decree of the court en banc entered July 22, 1947, the motion for more specific pleadings was overruled and denied for the reasons set forth in the opinion of the court filed therewith. The decree of July 22, 1947, reads as follows:
“Now, July 22, 1947, it is ordered, adjudged and decreed that Defendant’s motion for more specific pleadings be and the same is hereby overruled .and denied. It is further ordered that Defendant’s demurrer be sustained, effective twenty days from the date of the filing of this Decree, without prejudice to the plaintiff to file, with leave of Court, whatsoever supplemental pleadings he or his counsel may desire within said twenty days. Should the same be so filed this Court or a Judge thereof will entertain a motion to vacate that portion of this Decree which sustains, by way of a decree nisi, defendant’s demurrer.”
Under date of August 1, 1947, an order was filed granting plaintiff leave to file an amendment which he was entitled to do under the terms of the decree nisi theretofore entered.
*238Paragraph 16 of the complaint, as amended, reads as follows:
“16. It is averred by the plaintiff that plaintiff has exhausted all remedies available to him within said Union and provided for under any agreement between the United Steelworkers of America and its Local No. 1163 and the Defendant Company; and particularly avers that he has exhausted all remedies available to him under Plaintiff’s ‘Exhibit P hereto attached and made a part hereof.”
Therein there appears a positive averment that plaintiff has exhausted all remedies available to him within the union and provided for under any agreement between the union and defendant company.
On December 28, 1948, by agreement of counsel an order was made directing the prothonotary to place the case for argument before the court en banc at the February term, 1949, list, to hear argument upon a motion of plaintiff, as though filed in writing, to vacate that portion of the court’s decree, dated July 22, 1947, which sustained by way of a decree nisi defendant’s demurrer. Argument was had. Counsel for both sides filed briefs. The question therefore before the court is whether or not the previous order of the court en banc should be vacated. We believe that it should.
Although the court en banc has already overruled and dismissed defendant’s motion for more specific pleadings, counsel for defendant, in its brief, opposing the motion to vacate the previous order, uses 13 pages to show why, in its opinion, more specific pleadings should not be filed. This is water over the dam since we have already ruled on it.
On October 15, 1948, an order was entered by Judge McWherter, who wrote the previous opinion for the court en banc, vacating the decree nisi and directing defendant to plead on the merits within 20 days. *239Since counsel agreed that this action should be reviewed by the court en banc, and have presented their arguments and briefs, it is proper for the court en banc to now adjudicate the problem presented by defendant’s demurrer and plaintiff’s amendment.
This case involves retroactive pay. Plaintiff was employed by defendant company from January 10, 1944, to January 8, 1946, and was a member of Local 1163, United Steel Workers of America. A dispute arose between the union and the company over job classifications, which dispute was certified to the National War Labor Board, and it, through the Regional War Labor Board of the Third Region recommended that the union and defendant company cooperate in working out a scientific classification. The union and the company so agreed except as to the effective date for the agreed classifications. Upon the matter again being referred to the Regional War Labor Board a directive order was issued March 31,1945, fixing June 28, 1944, as the effective date for retroactive pay. Plaintiff was an employe and member of the union on the effective date of the second directive of the Regional War Labor Board. Plaintiff admits that he received the proper pay from September 9, 1945, until he was laid off on January 8, 1946. His complaint is that he did not receive the additional pay between June 28, 1944, the effective date of the directive, and September 9,1945.
Defendant, on pages 4, 5, 6, and 7 of its brief, has copied off certain provisions of the contract between the union and defendant company indicating procedure. Defendant relies on the case of Cousins v. Pullman Co. (Tex. Civ. App.), 72 S. W.(2d) 356 (1934). That was a case involving discharge of an employe and an effort to procure reinstatement and compensation for wages lost. It does not here control.
*240Defendant has cited Reed v. St. Louis S. W. R. Co. (St. Louis Court of Appeals of Mo.), 95 S. W. (2d) 887 (1936), which was an action brought by a former employe to recover damages for alleged .wrongful discharge in violation of a contract. That case does not help in the matter here presented. In like manner, the case cited by defendant of Trainer v. International Alliance of Theatrical Stage Employees et al., 353 Pa. 487 (1946), does not here control as the facts were entirely different.
Defendant has also cited the case of Jannotta v. Pittsburgh Steel Company, etc., et al., no. 2210 in equity, 1947, in this court. The writer is cognizant and familiar with the matters presented in that case and the facts are so entirely different that that case is not a precedent for an adjudication in the instant case.
Both sides have cited the case of O’Neill et al. v. United Association of Journeymen, Plumbers and Steam Fitters, etc., et al., 348 Pa. 531. This case has been given consideration and I feel that an adjudication on the facts presented in that case cannot be made on the question as here presented based solely on the O’Neill case.
Under the agreement between the company and the union it was specified that there could be no appeal from the decision of the Regional War Labor Board which fixed June 28, 1944, as the effective retroactive date for the increase in pay.
As was held in Baltimore Transit Company v. Flynn, 50 F. Supp. 382, section 10 of the syllabus:
“The National War Labor Board does not exist as a tribunal to determine legal rights and obligations of employer and employee, or to protect and enforce such rights, but merely to decide how such rights, in board’s opinion, are to be exercised in public interest in view of state of war.”
*241There is no internal remedy available to plaintiff under the agreement between the union and defendant company, marked exhibit I. Since defendant was laid off on January 8,1946, he, since that date, has not been an employe within the meaning of section 7 of exhibit I since his discharge, neither is he a member of the union. He, therefore, is not in position to further utilize any internal remedies which are available to employes and members of the union. It appears that plaintiff is limited to a suit in assumpsit if he is entitled to recover at all. A trial judge can better pass on the merits of the case after defendant has filed its pleadings on the merits.
In the last order of court it was said in the opinion that it was unnecessary to pass on the question of jurisdiction as the matter of jurisdiction could be raised at any time. I feel that although the question of jurisdiction has thus been disposed of it is proper to now say that the court has jurisdiction. Plaintiff is a resident of Westmoreland County and defendant has its principal office or place of business within the County of Westmoreland: Massachusetts Bonding & Insurance Company v. Johnson & Harder, Inc., et al., 330 Pa. 336, 340; Sun Ship Employees Association, Inc., v. Industrial Union of Marine and Shipbulding Workers, 351 Pa. 84.
On the question of jurisdiction the court has the benefit of the case of McNeil v. Peoples Life Ins. Co., 43 A. (2d) 293. This case was heard in the Municipal Court of Appeals for the District of Columbia. In that case on the matter of jurisdiction plaintiff was not in as strong a position as in the instant case as a contract had been entered into for an increase in wages retroactive to March 31, 1942, 11 months prior to the date on which plaintiff had left defendant’s employment.
In Yazoo & M. V. R. Co. v. Webb, 64 F. (2d) 902, at page 903, section 2 of the syllabus, it was held that:
*242“Contract between employer and employees as to wages and working conditions is analagous to treaty, and should be construed liberally to accomplish its purposes."
In an action in assumpsit plaintiff need not set forth his evidence. As previously stated by the court en banc on the question of motion for more specific pleadings the court can readily conceive of the record being encumbered by the numerous copies of sheets of paper, correspondence and writing which have no place in pleadings. Such matters are evidence, not pleadings.
As stated, plaintiff has sufficiently pled a cause of action. He has stated in his amended complaint that he has exhausted the remedies provided for by the contract between the employer and the union. In consid- ■ ering the pleadings as here presented the court must accept the averments of fact set forth in the complaint as true. The majority of the court has arrived at the conclusion that his sole remedy is within the framework of the contract between the employer and the union. Assuming this to be true, as long as plaintiff was an employe and a member of the union I cannot v agree that plaintiff is barred from a remedy in the Court of Common Pleas since he, by reason of his being laid off is neither an employe nor a union member. Plaintiff, as soon as he was laid off and his connection with defendant as an employe severed, was an outsider insofar as the union remedies provided by the contract were concerned, and still is. I have cited cases where it was held that a court of law had jurisdiction, in some of which plaintiff’s position was not as strong as in the instant case. I am firmly convinced that defendant should be required to plead and answer the complaint filed by plaintiff.