
    The PENNSYLVANIA SOCIAL SERVICES UNION and The Service Employees International Union, Appellants, v. Joseph T. LYNN.
    Commonwealth Court of Pennsylvania.
    Submitted April 26, 1996.
    Decided June 4, 1996.
    Reargument Denied July 3, 1996.
    Bruce M. Ludwig, for Appellants.
    Joseph T. Lynn, Pro Se, Appellee.
    Michael H. Roth, for Amicus Curiae, Department of Public Welfare.
    
      Amy L. Rosenberger, for Amicus Curiae, Council IB, American Federation of State, County and Municipal Employees, AFL-CIO.
    Before SMITH, PELLEGRINI, JJ., and MIRARCHI, Senior Judge.
   PELLEGRINI, Judge.

The Pennsylvania Social Services Union (PSSU) and the Service Employees International Union (International Union), collectively, the Unions, appeal from a decision of the Court of Common Pleas of Lackawanna County (trial court) that denied their motion under Pennsylvania Rule of Civil Procedure 1032(b) to dismiss or transfer an action for unfair representation filed by Joseph T. Lynn (Lynn).

Lynn was employed by the Commonwealth of Pennsylvania, Department of Public Welfare (Commonwealth), as a claims settlement agent. In that position, Lynn was required to recover money owed to the Commonwealth as a result of the Commonwealth’s liens or judgments for the payment of welfare. PSSU was the certified collective bargaining agent of a unit that included Lynn’s position and was a party to a collective bargaining agreement with the Commonwealth that provided for the filing of grievances which PSSU may take to final and binding arbitration.

Lynn was discharged from his employment on April 21, 1986, because he allegedly provided false information to the news media regarding purported illegalities and wrongdoing on the part of the Commonwealth and its management officials. Lynn released to the media copies of criminal complaints sworn out by him that alleged that the Commonwealth engaged in theft by deception and other crimes due to its implementation of a policy that provided for the collection of interest on welfare hens. Additionally, believing that the Commonwealth’s policy was illegal, Lynn refused to follow that policy.

•After being discharged, Lynn contacted PSSU and requested that a grievance be filed and pursued to arbitration. PSSU filed a grievance with the Commonwealth on April 25, 1986, seeking Lynn’s reinstatement as well as compensation for his losses. After the Commonwealth denied the grievance, PSSU brought the matter to arbitration. The parties represented at the arbitration hearing were PSSU and the Commonwealth; over his requests, Lynn’s personal attorney was specifically not permitted to participate in PSSU’s presentation of the grievance to the arbitrator. Additionally, because no transcript of the hearing was maintained, Lynn requested to make a personal tape recording of the proceedings. The arbitrator, ruling in favor of the Commonwealth’s objections, denied Lynn’s request.

At the arbitration hearing, PSSU alleged that the Commonwealth’s termination of Lynn was in violation of the collective bargaining agreement. PSSU argued that Lynn’s discharge was without cause, and that it constituted unlawful discrimination against Lynn for his activities as a PSSU steward. PSSU offered evidence to show that Lynn had a legitimate basis to challenge the Commonwealth’s welfare lien policy and that his statements to the news media were not false. The Commonwealth argued that it was within its prerogative to instruct its staff to collect interest on welfare liens and that Lynn’s public comments against the Commonwealth were false and disruptive to the work place harmony.

On October 13, 1986, the arbitrator denied PSSU’s grievance, finding that Lynn’s discharge was not in violation of the collective bargaining agreement. The arbitrator concluded that Lynn’s termination was not the result of anti-union animus, but instead, re-suited from Ms decision to take Ms dispute with the Commonwealth to the news media.

PSSU subsequently notified Lynn of the arbitrator’s decision and informed him that it was not going to appeal that decision because there were insufficient grounds for an appeal. Lynn contacted the International Umon, re-questmg that it instruct PSSU to appeal the arbitration award. Although the International Urnon responded to Lynn’s request, it did not intervene in PSSU’s decision not to appeal the arbitrator’s award.

On October 17, 1988, Lynn filed the present action against the UMons, alleging that PSSU breached its duty of fair representation towards him. Lynn alleges that PSSU breached its duty by faffing to appeal the arbitration award, by not providing him with counsel or not permitting his private counsel to appear at the arbitration hearing, by failing to hire a court stenographer for the arbitration hearing, and by not presenting certain testimony at the arbitration hearing. Contendmg that he was wrongfully discharged by the Commonwealth because he disagreed with its purportedly illegal collection policy, Lynn averred m Ms complaint that the UMons “have sided with management on these issues wMch lead to [Ms] firing and have blatantly failed to protect [his] mterests.” Additionally, Lynn alleged that PSSU’s conduct during the arbitration hearing facilitated Ms termination by the Commonwealth. In his complaint, Lynn requests that the UMons be directed to re-arbitrate Ms termination from employment nunc pro tunc, as well as pay his damages, lost wages and legal expenses.

The UMons then filed preliminary objections to Lynn’s complaint, contendmg in part that Lynn failed to join a necessary party, the Commonwealth. The UMons argued that, because Lynn alleged that Ms discharge was wrongful, and because he was requesting re-arbitration of Ms termination, the Commonwealth was required to be joined in the action. The trial court deMed the preliminary objection without prejudice, stating that the Commonwealth woMd be an indispensable party oMy if the UMons breached their duty of fair representation and the trial court orders re-arbitration of the grievance.

After the UMons filed an answer with new matter to the complamt, Lynn filed a response to the new matter. In that response, Lynn made allegations of collusion, conspiracy and corruption on the part of the UMons m siding with the Commonwealth. Lynn also alleged that the UMons aided and abetted the Commonwealth’s wrongful termination of him by their actions before and after Ms termination. Lynn repeated these allegations m his responses to the UMons’ interrogatories and in his pretrial statement.

Prior to trial, the UMons filed a motion to dismiss or transfer the matter, allegmg that the trial court lacked jurisdiction because the Commonwealth was an mdispensable party. The UMons requested that the Commonwealth be joined as a party and that the matter be transferred to this Court’s original jurisdiction. Alternatively, if the Commonwealth coMd not be jomed, the UMons requested the trial court to dismiss the action. After denying the UMons’ motion, the trial court found that the issue of whether the Commonwealth was an mdispensable party was a controffing question of law, and permitted the UMons to appeal its interlocutory order pursuant to 42 Pa.C.S. § 702(b). TMs Court subsequently granted permission to appeal to the UMons.

After this Court granted permission to appeal, Lynn filed a motion for reconsideration of that decision and for emergency relief. In that motion, Lynn conceded that reinstatement by the Commonwealth to his position is no longer possible because the Unions did not seek to join the Commonwealth as a defendant to enforce its obligation under the collective bargaining agreement prior to the expiration of the applicable statute of limitations. Lynn also made a similar statement in his brief before this Court. Lynn has conceded that there is no basis for ah action against the Commonwealth and indicates that he is seeking no relief from the Commonwealth. Instead, Lynn states that his remaining cause of action lies solely against the Unions for the alleged breach of then-duty of fair representation.

Before this Court, the Unions contend that the trial court erred in declining to find that the Commonwealth is an indispensable party to Lynn’s action. The Unions argue that, because Lynn is requesting the trial court to order them to re-arbitrate his grievance nunc pro tunc, the Commonwealth must be joined as an indispensable party in order to ensure that such arbitration can occur if so ordered by the trial court.

As a general rule, a public employee has no right to sue his or her employer for wrongful discharge where the union has denied the employee fair representation by refusing to bring a grievance to arbitration. Ziccardi v. Commonwealth, 500 Pa. 326, 456 A.2d 979 (1982). Only a party to the collective bargaining agreement, the union, has the right to pursue a wrongful discharge action against the employer. Id. If the union fails to do so, and that refusal amounts to a breach of the union’s duty of fair representation, then the sole remedy available to the employee is to bring an action in equity against the union seeking an order to compel arbitration of the underlying grievance. Id.; Martino v. Transport Workers’ Union of Philadelphia, 505 Pa. 391, 480 A.2d 242 (1984).

In such cases, however, the employer approaches the status of an indispensable party to the litigation in the sense that the dispute cannot be finally resolved without its participation. Id.; Runski v. AFSCME, Local 2500, 142 Pa.Cmwlth. 662, 598 A.2d 347 (1991), aff'd, 537 Pa. 193, 642 A.2d 466 (1994); Reisinger v. Department of Corrections, 130 Pa.Cmwlth. 585, 568 A.2d 1357 (1990); Speer v. Philadelphia Housing Authority, 111 Pa.Cmwlth. 91, 533 A.2d 504 (1987). The public employer is assigned the status of an indispensable party in an unfair representation action solely for the purpose of affording the employee an adequate remedy; i.e., reinstatement or arbitration. Runski, supra; Reisinger, supra. If the employee is not seeking reinstatement or arbitration, and is only seeking damages from the union for an alleged breach of its duty of fair representation, then the employer does not approach the status of an indispensable party.

In the present case, although Lynn initially was seeking a nunc pro tunc re-arbitration of his grievance and reinstatement into his position, he has subsequently conceded that such relief is not possible. Given Lynn’s specific statements that he seeks no relief from the Commonwealth, and instead, is requesting damages only from the Unions, the Commonwealth cannot be considered an indispensable party to Lynn’s unfair representation action against the Unions.

Accordingly, the decision of the trial court refusing to join the Commonwealth as an indispensable party is affirmed.

ORDER

AND NOW, this 4th day of June, 1996, the order of the Court of Common Pleas of Lack-awanna County at No. 88-CV-5357, dated October 12, 1995, is affirmed. The matter is remanded to the trial court.

Jurisdiction relinquished. 
      
      . Pa. R.C.P. 1032(b) provides that:
      Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter or that there has been a failure to join an indispensable party, the court shall order that the action be transferred to a court of the Commonwealth which has jurisdiction or that the indispensable party be joined, but if that is not possible, then it shall dismiss the action.
     
      
      . The Office of the Attorney General refused to issue a criminal complaint based upon the allegations of Lynn's private criminal complaints. That decision was affirmed by the trial court in a separate proceeding.
     
      
      . Although the Unions raised other preliminary objections, they are not relevant to the issue presently before this Court.
     
      
      . 42 Pa.C.S. § 702(b) provides that:
      When a court or other government unit, in making an interlocutory order in a matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, .permit an appeal to be taken from such interlocutory order.
     
      
      . The appeal was granted three days before the scheduled trial date of the action. At that time, it appeared that Lynn was still requesting a nunc pro tunc re-arbitration of his grievance. Lynn’s abandonment of that claim for relief did not appear of record until his motion for reconsideration and his brief were filed with this Court.
     
      
      
        . See 42 Pa.C.S. § 5527 (six-year statute of limitations).
     
      
      . The Unions also argue that, because Lynn alleges a conspiracy between the Unions and the Commonwealth, and because the Commonwealth has numerous interests that could be affected by Lynn’s action, the Commonwealth is clearly an indispensable party to the present litigation. This contention, however, disregards the fact that Lynn’s action is only against the Unions. Lynn did not name the Commonwealth as a defendant in his action and is not seeking any relief from the Commonwealth. As such, the Commonwealth’s rights and interests cannot be affected by any decision on the merits by the trial court. Therefore, the Commonwealth is not an indispensable party based upon this ground.
     