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HOLMES v. SCHNEIDER POWER CORP.

February 25, 1986

WILLIAM A. HOLMES and ALYCE M. HOLMES, his wife, Plaintiffs
v.
SCHNEIDER POWER CORPORATION, Defendant



The opinion of the court was delivered by: WEBER

 This is an employee dismissal action sounding in contract and tort, alleging diversity jurisdiction. The action was brought against defendant, a contractor involved exclusively in the construction of power generating facilities. Plaintiff Holmes was defendant's employee from May 22, 1978 until May 4, 1982 working as a Material Control Supervisor until he was placed on layoff. On June 11, 1982, Holmes filed a complaint with OSHA alleging that a retaliatory discharge had taken place because Holmes had complained to OSHA about welding fumes at the Beaver Valley Power Station project in Shippingsport where he had worked for defendant. On May 5, 1983, Holmes filed a Workmen's Compensation petition for disability due to fume exposure. On May 3, 1984, Holmes and his wife filed this suit. The action is currently before the court on motion by defendant for summary judgment. Evidentiary material has been submitted and the motion has been fully briefed by the parties in support of their respective positions.

 COUNT I - WRONGFUL DISCHARGE

 In his complaint, plaintiff first alleges that he was wrongfully discharged in retaliation for his complaints to OSHA about fumes in the work place. *fn1" Defendant attacks this claim from two angles:

 1) Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C.A. § 651, et seq., provides a statutory remedy for Holmes thereby eliminating any common law wrongful discharge cause of action; and

 2) Plaintiff has failed to establish or to plead any facts which would indicate that he was discharged in violation of public policy. Because these arguments may be dispositive we will examine them closely.

 a) Existence of a Statutory Remedy.

 There is no doubt that Section 11(c) of the Occupational Safety and Health Act (OSHA), 29 U.S.C.A. § 660(c) provides a statutory remedy for any employee who is discharged because of complaints to OSHA about unsafe work conditions. *fn2"

 Plaintiff disputes this and argues alternatively that the existence of § 660(c) should not preclude us from finding a cause of action on his behalf. In support, plaintiff indicates that he made complaint to the Secretary as prescribed by OSHA, that the Secretary investigated and then closed the administrative file. These facts are undisputed. However, plaintiff then characterizes himself as having exhausted his administrative remedies under the act, and as having no statutory remedy if he cannot file suit in this court. Therefore, plaintiff argues that we should find an implied private right of action.

 Plaintiff's arguments on this point are somewhat unclear. Plaintiff relies on cases and arguments that deal with two distinct issues as though they were one and the same. One issue is whether this court should find an implied right of action under the OSHA statute as a matter of federal law. *fn3" It is an entirely separate issue for this court to decide whether Pennsylvania courts would find a common law cause of action in this case, i.e. wrongful discharge in violation of a public policy. We discuss these issues separately.

 Plaintiff clearly admits that he has found no Third Circuit case in which the court decides that a private right of action exists under OSHA. Furthermore, the only case which plaintiff cites us to is a Sixth Circuit opinion holding that OSHA does not create a private right of action, on facts similar to ours. Taylor v. Brighton Corp., 616 F.2d 256 (6th Cir. (1980). We note that other cases have been brought by discharged employees trying to assert a private cause of action based on § 660(c). *fn4" However, we know of no case which held that § 660(c) did afford a private remedy and we believe that the Taylor court correctly decided that no such private right of action should be implied from the OSHA statute.

 In addition, we believe that the OSHA statute does specifically provide a statutory remedy for the type of retaliatory discharge alleged by the plaintiff. Granted, this is a limited remedy, providing only for administrative proceedings and suit in federal court which may be brought by the Secretary if the Secretary so elects. The plaintiff has had the benefit of the administrative remedy provided. The Secretary's decision not to bring suit does not deprive plaintiff of his statutory remedy. It is noteworthy that Pennsylvania courts have found a common law action based on the public policy exception only in cases where no statutory remedy is available. Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631 (1980); Wolk v. Saks Fifth Avenue, Inc., 728 F.2d 221, 223-224 (3d Cir. 1984). We, therefore, find no basis in the complaint to find a wrongful discharge action.

 b) Existence of a Public Policy Violation.

 Because plaintiff has made alternative arguments, we next address the issue of whether Pennsylvania courts would find a common law cause of action in this case. As a federal court sitting in a diversity action, we are reluctant to glibly expand state law. A decision to find a common law cause of action would necessarily rely on a clear state policy or trend signaling the state court's inclination to favor such expansion. See Bruffett v. Warner Communications, Inc., 692 F.2d 910, 919 (3d Cir. 1982). We examine plaintiff's alternative argument with this in mind.

 As we understand it, plaintiff's alternative argument advanced in his brief alleges that he was discharged in retaliation for his complaints "to everyone in sight" regarding the hazardous conditions of his work site. State policy militating against such a retaliatory discharge, plaintiff argues, can be found in the Pennsylvania Workmen's Compensation Act, 77 P.S. 1 et seq. and Pennsylvania Occupational Disease law.

 Plaintiff has found no Pennsylvania case on point but cites us to Rettinger v. American Can Co., 574 F. Supp. 306 (M.D. Pa. 1983) and Cloutier v. Great Atlantic & Pacific Tea Co., 121 N.H. 915, 436 A.2d 1140 (1981). We do not believe that either case applies here.

 In Croutier, a New Hampshire Court permitted the recovery for wrongful discharge in violation of a public policy tenuously premised on duties imposed under OSHA. *fn5" Croutier is based on New Hampshire law which clearly differs from Pennsylvania law. The Croutier court specifically rejected the standard requiring a "strong and clear public policy" which Pennsylvania courts have adopted. Geary v. United States Steel Corporation, 456 Pa. 171, 319 A.2d 174, 180 (1974); Rettinger, 574 F. Supp. at 311. Moreover, because OSHA is a federal law, we do not believe that this legislative scheme in itself provides any indication of a Pennsylvania state policy. *fn6" Thus, Croutier is inapplicable here.

 In Rettinger, a federal court found that a discharge in retaliation for filing a Workmen's Compensation claim stated a cause of action in Pennsylvania. The court there relied heavily on a lower state court decision which had also made this finding. See Butler v. Negley House, Inc., 20 Pa. D & C 3d 543 (Ct. Comm. Pleas 1981). Rettinger is not controlling here for two reasons. First, it is factually distinguishable. In the case before us, there are no allegations that plaintiff was fired for filing a Workmen's Compensation claim and in fact, it is undisputed that plaintiff's Workmen's Compensation claim was not filed until a year after his discharge. Secondly, Rettinger looks for a clear indication of state policy and finds a state court decision directly on point as well as a state legislative scheme which would be undermined by any different result. We have no state court decisions to rely on, and we do not find the policies addressed in Pennsylvania Workmen's ...


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