J-A23009-22

2023 PA Super 44

CHRIS TAYLOR 

Appellant

v.

PENNSYLVANIA STATE 

CORRECTIONS OFFICERS 

ASSOCIATION

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1473 MDA 2021

Appeal from the Order Entered October 15, 2021

In the Court of Common Pleas of Huntingdon County Civil Division at 

No(s): 2021-688

BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*

OPINION BY BOWES, J.: FILED MARCH 20, 2023

Chris Taylor appeals from the October 15, 2021 order sustaining the 

preliminary objections of the Pennsylvania State Corrections Officers 

Association (“PSCOA”) as to Mr. Taylor’s claim under the Declaratory 

Judgments Act, 42 Pa.C.S. §§ 7531-41, which sought a legal determination 

that PSCOA had violated its duty of fair representation. We affirm.

The underlying facts of this matter are undisputed. Mr. Taylor is 

employed by the Pennsylvania Department of Corrections at SCI-Huntingdon 

in a bargaining unit represented by PSCOA. Mr. Taylor was a member of this 

labor union until June 2019, when he and several of his colleagues resigned 

from PSCOA in response to the United States Supreme Court’s holding in 

Janus v. AFSCME, Council 31, ___ U.S. ___, 138 S.Ct. 2448, 2486 (2018), 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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which established that “public-sector unions may no longer extract agency 

fees from nonconsenting employees” under the First Amendment to the United 

States Constitution. Despite his resignation, PSCOA remains Mr. Taylor’s 

“exclusive representative” pursuant to the Public Employe Relations Act 

(“PERA”), 43 P.S. §§ 1101.101-.2301.

1 See 43 P.S. § 1101.606. Accordingly, 

PSCOA remains obligated under Pennsylvania law “to bargain on wages, 

hours, terms and conditions of employment” upon Mr. Taylor’s behalf. Id. 

Furthermore, both parties agree PSCOA has an ongoing duty under the 

relevant collective bargaining agreement (“CBA”) to submit employment 

grievances on Mr. Taylor’s behalf and represent him at related proceedings.

In or about July 2019, PSCOA promulgated a schedule of fees in 

connection with its putative representation of non-union members like Mr. 

Taylor in the context of various employment grievances (“the fee schedule”). 

See id. at Exhibit A. This document provides as follows:

Scheduling Fees for Grievance and Heart and Lung Arbitrations

Grievance Process

Step 1: Filing fee $50.00

Step 2: Filing fee $100.00

Panel cost of 3 business agents @ [$]40.00 per hour

____________________________________________

1 We note that “[i]ndividual claims by employees against the union that allege 

a breach of the duty of fair representation do not qualify as unfair labor 

practices in violation of PERA.” Case v. Hazelton Area Educational 

Support Personnel Ass’n (PSEA/NEA), 928 A.2d 1154, 1161 (Pa.Cmwlth. 

2007) (en banc). Although the decisions of the Commonwealth Court do not 

bind this Court, such writings do constitute persuasive authority. See 

Eastern Steel Constructors, Inc. v. International Fid. Ins. Co., 282 A.3d 

827, 861 n.40 (Pa.Super. 2022).
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Representation from local-Local VP @ $200.00 per 

day plus travel and lodging

Step 3: Filing fee/Cost of Arbitrator $3000.00

Lawyer @ $250.00 per hour plus travel and lodging

Business Agent @ $40.00 per hour

Executive Officers @ $85.00 per hour

Heart and Lung Process (Denial or termination of benefit)

Filing fee $225.00

Cost of Arbitrator $3000.00

Lawyer @ $250.00 per hour plus travel and lodging

Medical Reports and Depositions – Cost varies ($1000.00 to 

$4000.00) Average cost is $5000.00 and up.

Id. (line breaks homogenized). 

In June 2021, Mr. Taylor initiated this declaratory judgment action by 

filing a civil complaint in the Court of Common Pleas of Huntingdon County.

2

 

See Complaint, 6/23/21, at ¶¶ 1-47. Therein, he asserted, upon non-specific 

“information and belief,” that PSCOA “will refuse to file a grievance on behalf 

of a nonmember without first receiving payment” as provided in the abovequoted fee schedule. Id. at ¶ 20. Furthermore, Mr. Taylor alleged that the 

fee schedule was instituted in “bad faith” to discourage non-members of 

PSCOA from filing grievances and to retaliate against Mr. Taylor and other 

union resignees. Id. at ¶¶ 29-31. Thus, he requested a determination that 

the institution of non-member fees in connection with employment grievances 

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2

 Our jurisprudence suggests that claims in the courts of common pleas 

concerning a union’s alleged breach of the duty of fair representation must be 

equitable in nature. See Waklet-Riker v. Sayre Educ. Ass’n, 656 A.2d 138, 

141 (Pa.Super. 1995). It is well-established that “declaratory judgment 

actions arise in equity[.]” Carlino East Brandywine, L.P. v. Brandywine 

Village Assoc., 197 A.3d 1189, 1199 (Pa.Super. 2018).
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and arbitration by PSCOA had breached the duty of fair representation under 

Pennsylvania state law. Id. at ¶¶ 35-47.

PSCOA filed preliminary objections in the nature of a demurrer pursuant 

to Pa.R.C.P. 1028(a)(4), arguing Mr. Taylor had failed to allege a sufficient 

basis to sustain a cause of action for a breach of the duty of fair 

representation. Specifically, PSCOA asserted that Mr. Taylor had failed to 

plead sufficient material facts in support of his claims for relief. See 

Preliminary Objections, 8/18/21, at ¶ 34 (“The instant [c]omplaint contains 

no averment that that PSCOA acted in bad faith other than the conclusory 

statement made by [Mr. Taylor.]”). The trial court held a brief hearing on the 

preliminary objections, wherein Mr. Taylor rested upon the allegations present 

in his complaint. See N.T. Hearing, 12/27/21, at 4 (“I think that the facts 

here are far from conclusionary. . . . And there are plenty of paragraphs that 

related to how it is bad faith and discriminatory against non-members.”).

On October 15, 2021, the trial court sustained PSCOA’s preliminary 

objections and dismissed Mr. Taylor’s complaint without prejudice. Rather 

than amend, on November 9, 2021, Mr. Taylor filed a praecipe to dismiss his 

claims with prejudice. On November 15, 2021, he filed a timely notice of 

appeal to this Court. Both Mr. Taylor and the trial court have complied with 

the requirements of Pa.R.A.P. 1925.

Mr. Taylor has raised a single issue for our review: 

Does a complaint allege sufficient facts to show that a union 

violates its duty to fairly represent all employees when it alleges 

that the union discriminates against those who are not union
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members, and institutes policies to retaliate against an employee 

it disfavors, in the administration of rights under the collective 

bargaining agreement?

Appellant’s brief at 2.

In reviewing this matter, we bear the following legal principles in mind:

In ruling on preliminary objections in the nature of a demurrer, 

the trial court was required to accept as true all well-pleaded 

allegations of material fact and all reasonable inferences deducible 

from those facts and resolve all doubt in favor of the non-moving 

party. The question presented was whether, on the facts averred, 

the law says with certainty that no recovery is possible. When 

any doubt exists as to whether the demurrer should be sustained, 

this doubt should be resolved in favor of overruling it.

On appeal from the trial court’s order overruling preliminary 

objections in the nature of [a] demurrer, our standard of review 

is de novo and our scope of review is plenary. Hence, we apply 

the same standard as the trial court in evaluating the legal 

sufficiency of the complaint, and examine whether, on the facts 

averred, the law says with certainty that no recovery is possible.

Lomax v. Sullivan, 282 A.3d 790, 792 (Pa.Super. 2022) (cleaned up). In 

this context, “no testimony or other evidence outside of the complaint may be 

considered to dispose of the legal issues presented by a demurrer.” Mellon 

Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa.Super. 1994). However, “a 

court need not accept as true conclusions of law, unwarranted inferences, or 

expressions of opinion.” Bayada Nurses, Inc. v. Comm., Dept. of Labor 

and Industry, 8 A.3d 866, 884 (Pa. 2010).

This case implicates the duty of fair representation, which arises 

because “a union acts as a trustee for the rights of its members and employees 

in the bargaining unit.” Case v. Hazelton Area Educational Support 
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Personnel Ass’n (PSEA/NEA), 928 A.2d 1154, 1158 (Pa.Cmwlth. 2007) (en 

banc).

3

 Consequently, “the members and employees are beneficiaries of a 

fiduciary obligation owed to them by the union,” which the union transgresses

“when it acts in bad faith toward its members, and violates the fiduciary trust 

created from the principal-agent relationship.” Case, supra at 1158 (citing 

Falsetti v. Local Union No. 2026, UMWA, 161 A.2d 882, 895 (Pa. 1960)). 

Specifically, “[a] union has the duty to fairly represent its members 

throughout any grievance and arbitration process provided for by a collective 

bargaining agreement.” Miles v. FOP Lodge #5, 217 A.3d 892, 898-99 

(Pa.Cmwlth. 2019). A labor union violates its duty if, in processing an 

employee’s grievance, it does “not act in good faith, in a reasonable manner 

and without fraud[.]” Falsetti, supra at 895-96. Finally, “a public 

employee’s remedy for his bargaining agent’s refusal to submit a grievance 

. . . is an action against the union for damages for breach of its duty of fair 

representation.” Ziccardi v. Comm., 456 A.2d 979, 981 (Pa. 1984).

Mr. Taylor’s arguments are best summarized as follows: “Pennsylvania 

law prohibits a union from discriminating against a nonmember in the 

administration of rights under a CBA. And, in this case, [PSCOA’s] own 

contract grants rights to all employees it represents. The Union may not now 

____________________________________________

3

 We note that the name of one of the litigants, Hazleton Area Educational 

Support Personnel Association, is misspelled in the name of this case. See 

Case, supra at 1155. For the sake of consistency and accurate citation, we 

have utilized the “correct” title of the case throughout this writing.
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condition those rights to nonmembers on newly invented, and illegal, pay-toplay fees.” Appellant’s brief at 11-12. Under Mr. Taylor’s theory, PSCOA’s 

circulation of the fee schedule is sufficient to demonstrate it has acted in bad 

faith and to retaliate against Mr. Taylor for resigning from the union. 

The scope of PSCOA’s representation of Mr. Taylor in the context of 

employment grievances emanates from the terms of the CBA, as evidenced 

by the contents of Mr. Taylor’s complaint. See Complaint, 6/23/21, at ¶¶ 18-

19 (averring that PSCOA’s representation of Mr. Taylor in the context of 

grievances is governed by “Article 35” of the CBA); Appellant’s brief at 10 (“As 

a corrections officer for the Commonwealth, Mr. Taylor is entitled to the 

employments the CBA guarantees to his position.”). Despite referring to this 

inherently critical document throughout his complaint, Mr. Taylor has 

neglected to attach a copy of the CBA to any filing submitted in the trial court. 

Hence, it was not included in the certified record on appeal. This glaring 

oversight creates significant ambiguity with respect to the grievance process 

dictated by the CBA and, more importantly, the arguable impact of the fee 

schedule upon the grievance and arbitration process that PSCOA must follow. 

To the extent Mr. Taylor relies upon the CBA to support his position, such 

reliance is fruitless due to the deficiency of his pleadings and the record.

As drafted, Mr. Taylor’s claim for relief is not grounded in the specific

terms of his employment. Rather, his argument is much more general and 

avers that PSCOA is precluded, under all circumstances, from imposing the 
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fee schedule. In staking out this position, he asserts that the union cannot 

treat him any differently from any other employees of the bargaining unit. Mr. 

Taylor is mistaken on this point, however, as it is well-established under 

Pennsylvania law that unions enjoy significant discretion in declining to pursue 

grievances raised by the individuals that they represent:

Individual bargaining unit members have no absolute right to have 

their grievances arbitrated. Ziccardi v. Commonwealth, 456 

A.2d 979, 981 (Pa. 1982). Rather, a union has broad discretion 

to determine whether to pursue a grievance to arbitration and has 

no duty to arbitrate every grievance. Falsetti, supra 

at 894 n.19. . . . A wide range of reasonableness must be allowed 

to a bargaining representative in serving the unit it represents, 

subject always to good faith and honesty of purpose in the 

exercise of this discretion. See Ford Motor Co. v. Huffman, 345 

U.S. 330, 338 (1953). A union’s actions are arbitrary only if, in 

light of the factual and legal landscape at the time of the union’s 

actions, the union’s behavior is so far outside a wide range of 

reasonableness as to be irrational. See Air Line Pilots 

Association, International v. O’Neill, 499 U.S. 65, 78 (1991). 

Bad faith, for its part, requires a showing that a union either acted 

in a fraudulent, deceitful, or dishonest manner or with an improper 

motive. See Motor Coach Employees v. Lockridge, 403 U.S. 

274, 299 (1971).

Anderson v. Pleasant Valley Educational Support Professionals’ 

Assoc., 272 A.3d 999 (Pa.Cmwlth. 2022) (unpublished memorandum at 6).4 

Thus, it is incumbent upon a plaintiff to “plead any material facts upon which 

a claim of bad faith could be based” in the context of an action for an alleged 

breach of the duty of fair representation. Waklet-Riker v. Sayre Area Educ. 

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4

 The Commonwealth Court permits the citation of its unreported decisions 

filed after January 15, 2008, for their persuasive value. See Commonwealth 

Court I.O.P. § 414(a).
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Ass’n, 656 A.2d 138, 141 (Pa.Super. 1995). A plaintiff’s failure to allege 

sufficient facts on this required element is “fatal” to their claims. Id.

Here, the factual record establishes that Mr. Taylor resigned from PSCOA

and no longer pays an agency fee to PSCOA. Approximately one month later, 

PSCOA issued the fee schedule and advised Mr. Taylor that any future

employment grievances filed through PSCOA would be governed by these 

provisions. These are the only relevant factual averments that Mr. Taylor has 

pleaded in support of his allegations of breach of duty and bad faith. See 

Complaint, 6/23/21, at ¶¶ 31. Thus, Mr. Taylor’s claim is that PSCOA’s 

promulgation of the fee schedule is self-evidently an act of bad faith under 

Pennsylvania law since it constitutes differential treatment. 

As noted above, there is no merit to Appellant’s general contention that 

a union must treat all grievances from the individuals it represents identically. 

See Anderson, supra at 6. To the contrary, PSCOA is empowered to make 

reasonable assessments with respect to deciding whether to pursue employee 

grievances based upon “the factual and legal landscape” at the time of its

actions. Id. Furthermore, there is no support under Pennsylvania law for Mr. 

Taylor’s broad contention that PSCOA is not permitted to charge ancillary fees 

to non-union members in connection with representing such individuals in the 

context of employment grievances. Indeed, we note that there is a dearth of 
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on-point Pennsylvania precedent concerning this specific question.5 Under 

such circumstances, we are permitted to “look to federal decisions for 

guidance” where there is “no meaningful difference” between state and federal 

labor policies. See, e.g., Burse v. Comm., Pennsylvania Labor Relations 

Board, 425 A.2d 1182, 1184 (Pa.Cmwlth. 1981). Under this rubric, Janus

provides substantial guidance here. In that case, the United States Supreme 

Court concluded that a state’s “extraction of agency fees from nonconsenting 

public-sector employees violates the First Amendment,” overruling Abood v. 

Detroit Bd. of Ed., 431 U.S. 209 (1977) (permitting mandatory collection of 

____________________________________________

5

 The holdings selectively cited by Mr. Taylor in support of his position are 

unavailing and inapposite. See Appellant’s brief at 12-27. The only such 

passage that arguably directly addresses the issue of representing non-union 

members in grievances processes comes from dicta from Falsetti v. Local 

Union No. 2026, UMWA, 161 A.2d 882 (Pa. 1960), wherein our Supreme 

Court quoted the following passage from a secondary source: “‘The 

bargaining representative would be guilty of a breach of duty if it refused to 

press a justifiable grievance either because of laziness, prejudice or 

unwillingness to spend money on behalf of employees who were not members 

of the union.’” Id. at 895 n.21 (quoting Cox, Individual Enforcement of 

Collective Bargaining Agreements, 8 Lab.L.J. 850, 858-9 (1957)). This 

quotation was offered as an example of the manner in which certain legal 

scholars had defined the general scope of the duty of fair representation. Id.

Critically, however, Falsetti never explicitly adopted this precise formulation

with respect to the expenditure of funds on behalf of non-union members and 

no subsequent Pennsylvania court has ever elected to do so. Thus, the 

passage cited by Mr. Taylor is mere dicta that boasts no precedential value. 

See Castellani v. Scranton Times, L.P., 124 A.3d 1229, 1243 n.11 (Pa. 

2015). In light of the authoritative guidance offered by Janus on the matters 

raised by Mr. Taylor, we decline his invitation to elevate this footnote to the 

level of binding precedent under Pennsylvania law.
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agency fees from non-members if utilized solely for “collective bargaining, 

contract-administration, and grievance-adjustment purposes”). 

In Janus, the Court also addressed one of the nascent issues posed by 

the holding, namely that public-sector unions like PSCOA would be forced to 

represent non-members like Mr. Taylor in grievance proceedings, as follows:

What about the representation of nonmembers in grievance 

proceedings? Unions do not undertake this activity solely for the 

benefit of nonmembers . . . . Representation of nonmembers 

furthers the union’s interest in keeping control of the 

administration of the collective-bargaining agreement, since the 

resolution of one employee’s grievance can affect others. And 

when a union controls the grievance process, it may, as a practical 

matter, effectively subordinate the interests of an individual 

employee . . . to the collective interests of all employees in the 

bargaining unit.

In any event, whatever unwanted burden is imposed by the 

representation of nonmembers in disciplinary matters can 

be eliminated through means significantly less restrictive 

of associational freedoms than the imposition of agency 

fees. Individual nonmembers could be required to pay for 

that service or could be denied union representation 

altogether.

Janus, supra at 2468 (cleaned up; emphasis added). 

Thus, while acknowledging that “free riders” like Mr. Taylor posed a

potential problem, the Court in Janus concluded that coercive agency fees 

were not a viable solution. Rather, the Court suggested that the assessment 

of individual fees associated with a union’s representation of a non-member 

in pursuing a grievance is an appropriate, alternative response to this financial 

conundrum. The above-quoted passage from Janus leads us to conclude that 

there is a distinction between shop agency fees assessed as an automatic 
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condition of a non-member’s employment in a bargaining unit, and the 

permissive payment of certain fees in exchange for actual services rendered 

by a public-sector union, i.e., representation in employment grievances and 

arbitrations.

6

 According to the United States Supreme Court, “[t]his more 

tailored approach, if applied to other objectors, would prevent free ridership 

while imposing a lesser burden on First Amendment rights.” Id. at 2468 n.6.

Viewing the totality of the factual and legal landscape of this case, we 

cannot conclude that Mr. Taylor has proffered material facts demonstrating 

that PSCOA has violated the duty of fair representation. As noted above, it is 

undisputed that Mr. Taylor chose to alienate himself from his union 

membership and elected to cease paying an agency fee to PSCOA. In 

response to these actions, PSCOA adopted the fee schedule to ease the 

financial burden posed by its representation of non-members such as Mr. 

Taylor in future employment grievances. This is precisely the arrangement 

described by the United States Supreme Court as a permissible alternative to 

compulsory agency fees. See Janus, supra at 2468 n.6. In the absence of 

the CBA, it is not apparent from the record if, or how, the fee schedule will 

otherwise negatively impact Mr. Taylor’s rights with respect to his 

____________________________________________

6

 As an example of such an alternative arrangement, the Supreme Court cited 

an Illinois statute providing that individuals who declined to pay agency fees

on religious grounds could be charged a “reasonable cost” by the union if they 

later sought to avail themselves of union representation in a “grievance or 

arbitration procedure[.]” Janus, supra at 2468 n.6 (citing 5 ILCS 315/6(g)).
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representation by PSCOA. Furthermore, Mr. Taylor has offered no allegations 

that the fees imposed by PSCOA are excessive or unrelated to prospective 

grievance and arbitration proceedings. The mere fact that PSCOA has 

implemented the fee schedule is not, in and of itself, sufficient to establish a 

violation of the duty of fair representation. Without additional material facts 

to support his conclusory averments, we cannot find that Mr. Taylor has 

asserted a sufficient basis to establish that PSCOA has acted arbitrarily, 

irrationally, or fraudulently. See Anderson, supra at 6.

Based upon the foregoing discussion, we agree with the trial court’s 

assessment that Mr. Taylor is not entitled to recovery as a matter of law.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/20/2023