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September 5, 1957

William STRANFORD, Plaintiff,

The opinion of the court was delivered by: MADDEN

This matter is presently before the court upon a motion to dismiss the complaint filed herein by the plaintiff, William Stranford, a citizen of Pennsylvania, against his former employer, The Pennsylvania Railroad Company, a corporation of and for these considerations a citizen of Pennsylvania, who, after having been to the National Railroad Adjustment Board upon the underlying gravamen and having received an unfavorable disposition, comes here.

The motion to dismiss the complaint is made upon three grounds, namely, (1) lack of jurisdiction in this court over the subject matter; (2) failure to set forth a claim upon which relief can be granted; and (3) failure to join an indispensable party.

 In the complaint the plaintiff makes the following allegations of fact: On November 12, 1917, he was employed by the defendant company as a locomotive fireman; at that time there was in effect a collective bargaining agreement between the defendant company and the Brotherhood which, first, protected him from a discharge from employment except for good cause and then only after he had been accorded an opportunity to be heard on formal charges, and secondly, guaranteed him employment or compensation for employment on the basis of seniority; that commencing or February 6, 1950, he was not permitted to work for the assigned reason that he was 'sleeping while on duty'; and that this action was taken against him without good cause, without formal charges and without a hearing as provided in the aforesaid agreement.

 The plaintiff further avers that he made demands for compensation which were denied; that he then commenced to process his claim through the grievance procedure established by the before mentioned contract; that he appeared before the General Manager of the Eastern Region of Pennsylvania Railroad Company, who for the first time, ascribed as the reason for the refusal to allow him to work, his affliction with syphilis; that in this charge, the General Manager relied upon allegations to that effect made by the company physician; that this charge was in fact false and unfounded as he has never suffered from syphilis and that this was known to the defendant; that therefore the charge was maliciously made for the purpose of attempting to cancel the defendant's breach of contract.

 The complainant further alleges that he submitted his claim for compensation and reinstatement to the Railroad Adjustment Board; that the hearing before the Board was tainted with such irregularities as the failure to confront him with witnesses and the submission and introduction into evidence of the defendant's unverified files and documents; that an adverse decision was rendered by the Board on May 17, 1956, and that it was the result of irregularities, especially since the Referee who cast the deciding vote against him did so without hearing the argument of his counsel; and that this decision, inasmuch as it adversely affected his rights, was rendered in violation of the national Railway Labor Act and the Fifth Amendment to the Constitution in that it was not rendered pursuant to a fair and impartial hearing and constitutes a taking of his property without due process of law.

 In his assertions the plaintiff contends that the findings of the Board are unsupported by any substantial evidence and that said findings are arbitrary, capricious and unreasonable; that because of the collective bargaining agreement and the Railway Labor Act he was denied his right of trial by jury in violation of the Seventh Amendment to the Constitution; that he suffered mental pain and anguish and disruption of his marital relationship as a result of the opprobrious character of the accusations made by the defendant; and finally, that he suffered a loss of wages in the sum of $ 40,150 and will in the future suffer a loss of wages because of the defendant's breach of contract.

 In his prayer for relief the plaintiff seeks a trial by jury; both compensatory and punitive damages; reinstatement; a declaratory judgment voiding the decision of the Railroad Adjustment Board; a declaratory judgment declaring that he was never afflicted with syphilis; and an injunction ordering the defendant to expunge from its records (including its medical records) any reference to the plaintiff ever having had syphilis and further, prohibiting the defendant, its agents or servants from alleging that the plaintiff was ever afflicted with said disease.

 Before proceeding with any further disquisition of this matter, it should be stated that pleadings are no longer tested by the rigid standard of the common law with prescribed verbal formulae but by the more liberal standards promulgated in the Federal Rules of Civil Procedure, 28 U.S.C.A.; accordingly, the court will afford the complainant a liberal construction of his allegations and treat the complaint as though it properly presents the individual claims alleged therein.

 See Continental Collieries v. Shober, 3 Cir., 1942, 130 F.2d 631, at page 635, where Judge Jones said:

 'However the court in the Leimer case ( Leimer v. State Mut. Life Assurance Co., 8 Cir., 108 F.2d 302), went on to admonish that there is no justification for dismissing a complaint for insufficiency of statement, except where it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of the claim. * * * No matter how likely it may seem that the pleader will be unable to prove his case, he is entitled, upon averring a claim, to an opportunity to try to prove it.'

 We have here, in our opinion, a complaint alleging several causes of action and possibly urging several grounds in support thereof. We have as follows:

 (a) A Tort action for slander and libel growing out of the common law.

 (b) A claim for wrongful discharge which is in effect a breach of contract action and, likewise, a common law action.

 (c) A claim for reinstatement and back pay which would, likewise, be a common law action but equitable in nature.

 (d) A Declaratory Judgment action.

 (e) An action for review of the decision of the National Railroad Adjustment Board upon both the merits and the alleged procedural irregularities of that body.

 The plaintiff alleges jurisdiction in this court based upon five congressional acts for it is elementary that this being a statutory court jurisdiction must flow from legislative action of the Congress. The Acts cited are:

 (1) The Railway Labor Act, 45 U.S.C.A. § 151 et seq.

 (3) The Declaratory Judgment Act, 28 U.S.C.A. §§ 2201, 2202.

 (4) The Act of June 25, 1948, Ch. 646, 62 Stat. 930, creating original jurisdiction in United States District Courts over civil suits exceeding $ 3,000 and presenting a federal question, 28 U.S.C.A. § 1331.

 (5) The Act of June 25, 1948, Ch. 646, 62 Stat. 931, creating original jurisdiction in United States District Courts over civil actions arising under congressional acts regulating commerce, 28 U.S.C.A. § 1337.

 The first problem to be met is the challenge to the court's jurisdiction, and where, as here, several causes of action are joined in the one complaint, the courts are guided in determining whether the court has jurisdiction by the principles laid down by Mr. Justice Sutherland for the Supreme Court in Hurn v. Oursler, 1932, 289 U.S. 238, at page 246, 53 S. Ct. 586, at page 589, 77 L. Ed. 1148, where he said:

 'But the rule does not go so far as to permit a federal court to assume jurisdiction of a separate and distinct nonfederal cause of action because it is joined in the same complaint with a federal cause of action. The distinction to be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it may not do so upon the nonfederal cause of action.'

 Under this principle we will, therefore, view each alleged cause of action separately and distinctly in the ...

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