Herbert v. Delphia

WARNE, J. pro tem.

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Defendant made a motion to dismiss plaintiff’s first amended complaint and for summary judgment. The trial court granted the motion and summary judgment was entered against plaintiff. Plaintiff appeals from the judgment.

Appellant in his first amended complaint alleges in substance the following facts: That appellant was employed by the respondents as a truck driver from November 1,1952, until October 8, 1955; that during the period of employment the respondents were under contract to a labor union as bargaining agent for respondents’ employees; that the contract provided for basic rates of payment for the work done by appellant; that on receiving his first paycheck appellant believed that the amount of payment was not in accordance with the provisions of the union contract and questioned an agent of the respondents; that the agent, acting in the course and scope of his employment, falsely and fraudulently and with the intent to deceive and defraud the plaintiff, represented to

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appellant that the respondents had entered into a separate agreement with the union which provided for a lower pay scale; that these representations were false and at the time known to the respondents to be false; that the appellant believed and relied upon these representations and was thereby induced to accept smaller payments than were actually due and that respondents willfully withheld part of the payment due; that despite diligent inquiries beginning November 7, 1952, regarding the terms and conditions of the special agreement which respondents alleged controlled appellant’s rate of compensation appellant did not until February 14, 1958, become aware of the fact that no such special contract had been entered into between respondents and the union; that respondents refused to pay the amount actually due. Appellant prayed for the amount of wages withheld, interest, and exemplary damages.

On March 2, 1959, respondent J ohn Delphia, in support of the motion for summary judgment, filed a declaration wherein he declared the following: that the collective bargaining agreement (incorporated by reference) provided for a “Grievance Procedure” under which disputes involving the payment of wages were to be brought before a board of arbitration set up by the parties; that neither the appellant nor the union on his behalf had instituted, pursued, or exhausted the remedies given under the arbitration clause. Respondent further alleged that in 1957 he advised the appellant that the grievance procedure set forth should be pursued.