J-A17003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CAROL BERGIN                            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellant             :
                                        :
            v.                          :
                                        :
TEAMSTERS LOCAL UNION NO. 77            :
                                        :
                  Appellee              :          No. 114 EDA 2017

                  Appeal from the Order November 29, 2016
              In the Court of Common Pleas of Delaware County
                     Civil Division at No(s): No. 08-01890


BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                  FILED NOVEMBER 28, 2017

     Appellant, Carol Bergin, appeals from the order entered in the

Delaware County Court of Common Pleas, which sustained the preliminary

objections of Appellee, Teamsters Local Union No. 77 and dismissed

Appellant’s complaint with prejudice. We affirm.

     The relevant facts and procedural history of this case are as follows.

Appellant’s husband, Thomas Bergin, was an employee of the Pennsylvania

Turnpike Commission (“PTC”) and a member of Appellee labor union.

Appellee and the PTC were parties to a Collective Bargaining Agreement

(“Agreement”), which governed the terms of Mr. Bergin’s employment. The

Agreement required automatic termination of an employee, if the employee

had more than three unauthorized absences.         On May 24, 2005, police

arrested Mr. Bergin after work. During his incarceration, Mr. Bergin suffered
_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-A17003-17


a broken wrist and dislocated shoulder. Due to his arrest, Mr. Bergin missed

work on May 25-26, May 28-29, May 31-June 1, and June 3.          Mr. Bergin

used his remaining leave to cover his absence from work on May 25-26;

however, the PTC treated Mr. Bergin’s remaining absences as unauthorized

due to his lack of available leave time. Because Mr. Bergin had more than

three unauthorized absences, the PTC automatically terminated Mr. Bergin

on June 3, 2005, pursuant to the terms of the Agreement.                With

representation from Appellee, Mr. Bergin filed a grievance against the PTC,

which claimed the PTC fired Mr. Bergin due to a pre-existing work-related

medical condition and his political views, not his arrest-related absences.

The PTC denied Mr. Bergin’s grievance on July 15, 2005, and Mr. Bergin

subsequently requested an arbitration hearing.      Prior to the arbitration

hearing, Mr. Bergin died on October 16, 2005.

     Appellee represented Mr. Bergin’s interests posthumously at the

arbitration hearing. Appellee did not notify Appellant of the hearing date or

location despite Appellant’s request to attend.    Following the arbitration

hearing, Mr. Bergin’s grievance was denied.        On February 14, 2008,

Appellant filed a praecipe for writ of summons against Appellee. Appellant

subsequently filed a complaint against Appellee on April 14, 2010, which

claimed Appellee failed to provide due process and breached its duty of fair

representation with respect to Mr. Bergin’s grievance.   On May 19, 2010,

Appellee filed a petition to remove the case to United States District Court


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for the Eastern District of Pennsylvania.     In federal court, Appellee filed a

motion to dismiss the action pursuant to F.R.C.P. 12(b)(6).          The federal

court subsequently dismissed the due process claim and remanded the case

to the state trial court for resolution of Appellant’s duty of fair representation

claim.

      On remand, Appellant filed a praecipe for the entry of default

judgment, and the court entered default judgment against Appellee on

August 28, 2012.      On September 6, 2012, Appellee filed a petition to

strike/open the default judgment, and Appellant filed a response on

September 26, 2012. The court granted Appellee’s petition to strike/open

the default judgment on November 30, 2012.          Appellee filed a motion for

Appellant to file the federal court certified record in the trial court on

December 13, 2012.        The December 13, 2012 motion also asked the trial

court to treat Appellee’s motion to dismiss pursuant to F.R.C.P. 12(b)(6), as

preliminary objections.     Appellant filed a response on January 2, 2013, in

which Appellant agreed to file the certified record from federal court in the

trial court and stipulated to the trial court’s usage of the Rule 12(b)(6)

motion as preliminary objections. The January 2, 2013 response, however,

asked the court to overrule Appellee’s preliminary objections.

      On June 11, 2013, Appellant filed the certified record from the federal

court in the trial court.     Appellant filed a praecipe for determination on

August 29, 2015.       On November 29, 2016, the trial court sustained


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Appellee’s preliminary objections and dismissed Appellant’s complaint with

prejudice. Appellant timely filed a notice of appeal on December 28, 2016.

The trial court did not order Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant filed

none.

        Appellant raises the following issue for our review:

           THE [TRIAL] COURT ERRED IN GRANTING…APPELLEE’S
           PRELIMINARY OBJECTIONS WHICH WERE IN THE FORM OF
           A [RULE] 12(B)(6) FEDERAL MOTION.

(Appellant’s Brief at 3).

        Appellant argues Appellee should have allowed Appellant to participate

in the arbitration.    Appellant asserts Appellee initially informed Appellant

that she could participate in the arbitration proceedings.          Appellant

maintains Appellee subsequently refused to inform Appellant of the time and

date of the hearing. Appellant avers Appellee’s refusal to include Appellant

in the arbitration proceeding resulted in the loss of benefits, which should

have passed to her upon Mr. Bergin’s death. Appellant submits these errors

constituted a breach of Appellee’s duty of fair representation.     Appellant

concludes the court erred when it sustained Appellee’s preliminary objections

and dismissed Appellant’s complaint with prejudice, and this Court should

reverse and remand for further proceedings. We disagree.

        As a prefatory matter, we note appellate briefs must conform in all

material respects to the briefing requirements set forth in the Pennsylvania


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Rules of Appellate Procedure; this Court may quash or dismiss an appeal if

an appellant fails to comply with these requirements. Pa.R.A.P. 2101. See

also Pa.R.A.P. 2114-2119 (addressing specific requirements of each

subsection of brief on appeal). Rule 2111 provides in relevant part:

        Rule 2111. Brief of the Appellant

        (a) General rule.—The brief of the appellant, except as
        otherwise prescribed by these rules, shall consist of the
        following matters, separately and distinctly entitled and in
        the following order:

                                  *    *    *

           (3) Statement of both the scope and standard of
           review.

                                  *    *    *

           (8) Argument for appellant.

                                  *    *    *

Pa.R.A.P. 2111(a)(3) and (8).

     With respect to the argument section of an appellant’s brief, Rule

2119(a) provides:

        Rule 2119. Argument

        (a) General rule.—The argument shall be divided into
        as many parts as there are questions to be argued; and
        shall have at the head of each part—in distinctive type or
        in type distinctively displayed—the particular point treated
        therein, followed by such discussion and citation of
        authorities as are deemed pertinent.

Pa.R.A.P. 2119(a). Importantly:

        The argument portion of an appellate brief must include a

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         pertinent discussion of the particular point raised along
         with discussion and citation of pertinent authorities. This
         Court will not consider the merits of an argument which
         fails to cite relevant case or statutory authority. Failure to
         cite relevant legal authority constitutes waiver of the claim
         on appeal.

In re Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012), appeal

denied, 620 Pa. 724, 69 A.3d 603 (2013). Where an appellant fails to raise

or properly develop issues on appeal, or where the brief is wholly inadequate

to present specific issues for review, a court can refuse to consider the

merits of the claims raised on appeal.       Butler v. Illes, 747 A.2d 943

(Pa.Super. 2000) (holding appellant waived claim where she failed to set

forth adequate argument concerning her claim on appeal; appellant’s

argument lacked meaningful substance and consisted of mere conclusory

statements; appellant failed to explain cogently or even tenuously assert

why trial court abused its discretion or made error of law).          See also

Lackner v. Glosser, 892 A.2d 21 (Pa.Super 2006) (explaining appellant’s

arguments must adhere to rules of appellate procedure, and arguments

which are not appropriately developed are waived on appeal; arguments not

appropriately developed include those where party has failed to cite any

authority in support of contention); Estate of Haiko v. McGinley, 799 A.2d

155 (Pa.Super. 2002) (stating rules of appellate procedure make clear

appellant must support each question raised by discussion and analysis of

pertinent authority; absent reasoned discussion of law in appellate brief, this

Court’s ability to provide appellate review is hampered, necessitating waiver

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of issue on appeal).

      Instantly, Appellant’s argument section falls woefully short of the

requisite standards.    At the outset, Appellant failed to include a separate

statement of the scope and standard of review relevant to her claim. See

Pa.R.A.P. 2111(a)(3).     Importantly, Appellant’s brief fails to cite to any

relevant authority to support her claim.      See In re Estate of Whitley,

supra. In fact, Appellant concedes in her argument that there is no relevant

case law to support her position.        Instead, Appellant merely concludes

Appellee breached its duty of fair representation when it proceeded to

arbitration without Appellant’s involvement.        The substantial defects in

Appellant’s brief arguably preclude meaningful review and constitute

sufficient grounds for this Court to suppress Appellant’s brief and dismiss the

appeal. See Butler, supra.

      Nevertheless, the relevant standard of review of a claim challenging a

trial court’s decision to sustain preliminary objections is as follows:

         A preliminary objection in the nature of a demurrer is
         properly [sustained] where the contested pleading is
         legally insufficient. Preliminary objections in the nature of
         a demurrer require the court to resolve the issues solely
         on the basis of the pleadings; no testimony or other
         evidence outside of the complaint may be considered to
         dispose of the legal issues presented by the demurrer. All
         material facts set forth in the pleading and all inferences
         reasonably deducible therefrom must be admitted as true.

         In determining whether the trial court properly sustained
         preliminary objections, the appellate court must examine
         the averments in the complaint, together with the
         documents and exhibits attached thereto, in order to

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J-A17003-17


         evaluate the sufficiency of the facts averred. The impetus
         of our inquiry is to determine the legal sufficiency of the
         complaint and whether the pleading would permit recovery
         if ultimately proven. This Court will reverse the trial
         court’s decision regarding preliminary objections only
         where there has been an error of law or abuse of
         discretion. When sustaining the [preliminary objections]
         will result in the denial of a claim or a dismissal of suit,
         [the preliminary objections may be sustained] only where
         the case [is] free and clear of doubt.

Hill v. Ofalt, 85 A.3d 540, 547-48 (Pa.Super. 2014) (quoting Lugo v.

Farmers Pride, Inc., 967 A.2d 963, 966 (Pa.Super. 2009), appeal denied,

602 Pa. 668, 980 A.2d 609 (2009)).

      A labor union has the statutory duty to represent all of the members of

the employee bargaining unit fairly.      Steele v. Louisville & Nashville

Railroad, 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). A member of

the bargaining unit has a right of action against the union for breach of its

duty of fair representation.   Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct.

903, 914, 17 L.Ed.2d 842, ___ (1967).         A union violates its duty of fair

representation if its actions are arbitrary, discriminatory, or in bad faith. Air

Line Pilots Ass’n, International v. O’Neill, 499 U.S. 65, 111 S.Ct. 1127,

113 L.Ed.2d 51 (1991). “[A] union’s actions are arbitrary only if, in light of

the factual and legal landscape at the time of the unions actions, the union’s

behavior is so far outside a wide range of reasonableness.” Id. at 67, 111

S.Ct. at 1130, 113 L.Ed.2d at ___.      Because this rule applies to all union

activities, an employee’s remedy for his bargaining agent’s failure to

prosecute a grievance properly is an action against the union for damages

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J-A17003-17


for breach of its duty of fair representation. Ziccardi v. Commonwealth,

500 Pa. 326, 330, 456 A.2d 979, 981 (1982). Significantly, a union’s duty

of fair representation does not extend to persons who are not employees of

the bargaining unit.   Allied Chemical & Alkali Workers v. Pittsburgh

Plate Glass Co., 404 U.S. 157, 181 n.20, 92 S.Ct. 383, 398 n.20, 30

L.Ed.2d 341, ___ (1971).

     Here, the trial court addressed Appellant’s claim as follows:

        In the instant case, [Appellant] asserts a cause of action
        against [Appellee] for breach of its duty of fair
        representation, but [Appellant] is neither a member of
        [Appellee] nor an employee of the bargaining unit.
        Additionally, [Appellant] offers no authority which holds
        that she, as a widow of a union member, assumes [Mr.
        Bergin’s] right to maintain such an action against
        [Appellee] on her own behalf. [Case law] recognize[s] a
        union’s fiduciary bargaining agreement only to members
        and employees of the collective bargaining unit, not to
        non-members or non-employees such as [Appellant].

        [Appellant] also argues that she should be entitled to the
        protection of [Appellee’s] duty of fair representation by
        virtue of her being a third-party beneficiary to the
        collective bargaining agreement. [Appellant’s] contentions
        in this regard are confusing and convoluted as she states
        that her claims are not derivative from that of her late
        husband, nor is she alleging a claim on her own behalf
        under the collective bargaining agreement. In view of
        these representations by [Appellant], it is difficult to
        fathom upon what basis she can be considered a third-
        party beneficiary of the collective bargaining agreement
        and [Appellant] failed to offer any legal authority to
        support her position in this regard under the facts,
        circumstances, and pleadings in this case.

        Accordingly, for the foregoing reasons, the [c]ourt
        concluded that, accepting as true all well-pleaded material
        facts set forth in [Appellant’s] [c]omplaint and all

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J-A17003-17


        inferences fairly deducible from those facts, the law says
        with certainty that no recovery is possible by [Appellant] in
        this matter.       Therefore, we sustained [Appellee’s]
        [p]reliminary [o]bjections to [Appellant’s] [c]omplaint and
        dismissed the [c]omplaint with prejudice, and it is
        submitted that our decision in this regard is supported fully
        by the record and the applicable legal authority.

(See Trial Court Opinion, filed February 15, 2017, at 4-5). We accept the

court’s sound reasoning and conclude the court properly sustained Appellee’s

preliminary objections to dismiss Appellant’s complaint with prejudice.

Therefore, Appellant’s sole issue on appeal fails.        See Hill, supra.

Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2017




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