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BRADY v. PENN CENT. TRANSP. CO.

December 1, 1975

Theodore R. BRADY and William J. Lebeck, Plaintiffs,
v.
PENN CENTRAL TRANSPORTATION COMPANY, Defendant


Levet, District Judge.


The opinion of the court was delivered by: LEVET

MEMORANDUM AND ORDER

LEVET, District Judge.

 The above entitled action is a suit under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., for false arrest and malicious prosecution. The plaintiffs were employees of the defendant at the time of their arrest on September 6, 1970.

 The defendant moves this court for an order dismissing plaintiffs' complaint and/or for summary judgment on the ground that the plaintiffs' complaint fails to state a cause of action cognizable under the Federal Employers' Liability Act and fails to state a claim upon which relief can be granted.

 The plaintiffs were in the employ of the defendant railroad in the capacity of car inspectors and repairmen. On September 6, 1970, plaintiffs were arrested for an attempted burglary of property from a railroad box car in a train which was located on defendant's "make-up" tracks at 78th Street, New York, New York. This arrest was based on an incident occurring the preceding evening when allegedly the plaintiffs had undertaken their attempted burglary.

 On December 3, 1970, the plaintiffs were indicted by the Grand Jury but that pending indictment was dismissed in February, 1973, upon recommendation of the District Attorney's office.

 During the pendency of these criminal charges, the plaintiffs were parties to a disciplinary proceeding brought by the defendant in accordance with the terms of the collective bargaining agreement then in effect. As a result of that hearing held on September 5, 1970, the plaintiffs were dismissed as employees of the defendant railroad. Various administrative appeals followed to different levels of the railroad management but at each level the findings and disciplinary action of the hearing officer was sustained. The plaintiffs appealed to the National Mediation Board. On June 25, 1975, the Board rendered its decision and sustained the determination of the railroad, except that it directed that each plaintiff be reinstated without back pay.

 The defendant contends that the torts of malicious prosecution and false arrest are not actionable under the F.E.L.A. In support of its contention, the defendant cites the case of Forgione v. United States, 202 F.2d 249 (3rd Cir.), cert. denied 345 U.S. 966, 73 S. Ct. 950, 97 L. Ed. 1384 (1953). In that case, a seaman sought to recover for false arrest and false imprisonment under the Jones Act. The court, which equated the scope of negligence under the Jones Act with that under the F.E.L.A., said that the torts of false arrest and false imprisonment were not actionable under the negligence concept of the Jones Act. In addition to Forgoine, the defendant has cited the following in support of its position: Fullerton v. Monongahela Connecting R. Co., 242 F. Supp. 622 (D.C.Pa. 1965); Beanland v. Chicago, Rock Island & Pacific R. Co., 480 F.2d 109 (8th Cir. 1973); Sharkey v. Penn Central Transportation Co., 493 F.2d 685 (2d Cir. 1974).

 The plaintiffs rely on the case of Slaughter v. Atlantic Coast Line Railroad Co., 112 U.S.App. D.C. 327, 302 F.2d 912 (1962). The Slaughter decision relies primarily on a United States Supreme Court case, Jamison et al. Executors v. Encarnacion, 281 U.S. 635, 50 S. Ct. 440, 74 L. Ed. 1082 (1930). In Jamison, the Court permitted recovery for an assault under Section 33 of the Merchant Marine Act of 1920 (Jones Act), 46 U.S.C. § 688. Section 688 adopts the negligence standards of the F.E.L.A.

 This court has read the memoranda and cited cases supplied by counsel. As a result, I find that the torts of malicious prosecution and false arrest are not actionable under the F.E.L.A. This court believes that the Slaughter case extended Jamison far beyond its scope. Jamison dealt with an intentional assault which resulted in a definite physical injury. In this case, we are dealing with false arrest and malicious prosecution; these are torts which by their nature do not result in the infliction of physical harm. In the view of this court, the F.E.L.A. has as its purpose the compensation of railroad employees who are physically injured as the result of their employment. This view is consistent with Jamison, which permitted recovery for physical injuries suffered during the course of employment. Consequently, plaintiffs' claim under the F.E.L.A. is dismissed.

 At a pre-trial conference, held several weeks ago, the question of whether the plaintiffs had a basis of jurisdiction based on "diversity of citizenship" was discussed. Diversity was not pleaded by the plaintiffs in their complaint. However, the court will consider the issue at this time. Assuming, arguendo, that such a basis of jurisdiction exists, the defendant contends that the plaintiffs are precluded from litigating the issues of false arrest and malicious prosecution because of a finding of the National Mediation Board, dated June 25, 1975. That decision stated in part:

 
"The Board, having weighed and considered all of the evidence and argument submitted, finds and concludes that the Carrier has provided proof as measured by preponderance of the evidence that Grievant committed the above act of misconduct and that discipline was indeed well warranted. Attempted theft is clearly a disciplinable act of gross misconduct."

 The defendant contends that the issue of plaintiffs' involvement in the attempted theft of September 5, 1970 has already been established by the National Mediation Board decision. Consequently, the defendant claims that plaintiffs are estopped from asserting that their arrest, at the instigation of the defendant, was wrongful in nature.

 Defendant relies on the decision of Union Pacific RR. Co. v. Price, 360 U.S. 601, 79 S. Ct. 1351, 3 L. Ed. 2d 1460 (1959), and cases based thereon (Andrews v. Louisville & Nashville RR. Co., 406 U.S. 320, 92 S. Ct. 1562, 32 L. Ed. 2d 95 (1972); Rinker v. Penn Central Transportation Co., 350 F. Supp. 217 (1972); Johnston v. Interstate RR., 345 F. Supp. 1082 (1972), in support of its position. Plaintiffs contend that the Union Pacific decision applies to a subsequent lawsuit brought to re-litigate the issues of a wrongful discharge from employment. ...


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