Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

DONOFRY v. NAZARETH HOSP.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


September 27, 1989

JO-ANN T. DONOFRY
v.
NAZARETH HOSPITAL; JANE SAMMONS v. NAZARETH HOSPITAL; MARIE K. DONOHUE v. NAZARETH HOSPITAL; LINDA CAREY McNELIS v. NAZARETH HOSPITAL

The opinion of the court was delivered by: VAN ANTWERPEN

OPINION AND ORDER

 FRANKLIN S. VAN ANTWERPEN, UNITED STATES DISTRICT JUDGE

 This matter comes before the court upon the plaintiffs' motion to remand the above-entitled actions to the Court of Common Pleas of Philadelphia County. This motion is made pursuant to 28 U.S.C.A. § 1447(c) (West Supp. 1989). *fn1" The plaintiffs originally filed their actions in the Court of Common Pleas of Philadelphia County in the May Term of 1989. On June 29, 1989, the defendant filed a Notice of Removal in the United States District Court for the Eastern District of Pennsylvania. In that notice, the defendant claimed that the federal courts had jurisdiction, pursuant to 28 U.S.C. § 1331, because "the plaintiff's complaint seeks recovery, inter alia, under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(c)." *fn2" On August 2, 1989, the plaintiffs filed this motion to remand on the grounds that the plaintiffs' causes of action were not founded upon any claim or right arising under the Constitution, treaties or laws of the United States.

 The federal courts are courts of limited jurisdiction. "The fair presumption is . . . that a cause is without [the court's] jurisdiction, until the contrary appears." Turner v. Bank of North America, 4 U.S. 8, 4 Dall. 8, 10, 1 L. Ed. 718, 719 (1799). When a party wishes to remove a case from state to federal court, the removal statute, 28 U.S.C. § 1441, has been strictly interpreted. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 85 L. Ed. 1214, 61 S. Ct. 868 (1941).

 28 U.S.C.A. § 1331 (West Supp. 1989) provides as follows: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." In Count I of their complaints, the plaintiffs allege wrongful termination in violation of a public policy which "precludes an employer from terminating an employment in retaliation against the employee for filing a claim for workmen's compensation benefits." Complaint, paragraph 10. No federal question jurisdiction would exist in the instant cases under Count I of the complaints. In Count II of the complaints, however, the plaintiffs allege wrongful termination "in violation of public policy as enunciated in the Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(c) and the Pennsylvania Worker and Community Right to Know Act, 35 P.S. § 7301 et seq. and § 7313(a) which preclude the termination of an employment because the employee has complained or protested against unsafe and life threatenirg conditions present in the workplace and who properly refused to work under such conditions." Complaint, paragraph 23. The defendant argues that it is this paragraph which causes these cases to become actions "arising under the . . . laws . . . of the United States."

 How a suit "arises under" the laws of the United States has been variously defined. It has been said that

 

[A] suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity, construction or effect of such a law, upon the determination of which the result depends. Shulthis v. McDougal, 225 U.S. 561, 32 S. Ct. 704, 56 L. Ed. 1205 (1950). Plaintiffs' right to sue must be founded directly upon a federal law. Gully v. First National Bank, 299 U.S. 109, 57 S. Ct. 96, 81 L. Ed. 70 (1936). A case arises under a federal law if rights claimed by one party may be defeated by one construction of the statute and sustained by the opposite construction. Gully, supra, at 112, 57 S. Ct. 96.

 PAAC v. Rizzo, 363 F. Supp. 503, 506 (E.D. Pa. 1973), modified on other grounds, 502 F.2d 306 (3d Cir.) cert. denied, 419 U.S. 1108, 42 L. Ed. 2d 804, 95 S. Ct. 780 (1974).

 Pennsylvania recognizes a cause of action for wrongful termination of employment, if such termination is based upon the violation of some significant and recognized public policy. Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3d Cir. 1983). "The sources of public policy (which may limit the employer's right of discharge) include legislation, administrative rules, regulation or decision. . . ." Klages v. Sperry Corp., 118 L.R.R.M. 2463, 2468 (E.D.Pa. 1984) (Federal legislation in the form of the federal securities laws furnishing the source of public policy in a diversity action for wrongful termination of employment.) In the instant case, the Occupational Safety and Health Act of 1970 (OSHA) is adverted to only as a repository of public policy. "The primary purpose of the OSH Act is to assure safe and healthful working conditions for workers. Section 11(c) [660(c)] is designed to further that public policy." Marshall v. Intermountain Electric Co. Inc., 614 F.2d 260, 262 (10th Cir. 1980).

 The fact that one of the sources of public policy mentioned in the complaints is a federal statute does not transform these actions into ones "arising under" the laws of the United States. We reject the bootstrapping argument that anytime a federal court decides whether a federal statute does or does not confer jurisdiction, the court has, of necessity, decided a dispute concerning the statute sufficient to confer jurisdiction. To decide the plaintiffs' cases, a court will not have to pass upon the validity, construction, or effect of OSHA. The rights claimed by the plaintiffs will not be "defeated by one construction of the statute and sustained by the opposite construction," PAAC, 363 F. Supp. at 506, because there is nothing to "construe." OSHA is used in the instant case only as source of public policy and not as a statute whose provisions are bound up with the vindication of the plaintiffs' rights. Indeed, on the face of the statute, it is plain that OSHA is not a vehicle for the vindication of private rights at all. See 29 U.S.C. § 660(c). Cf. Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 817, 92 L. Ed. 2d 650, 106 S. Ct. 3229 (1986) ("We conclude that a complaint alleging a violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private, federal cause of action for the violation, does not state a claim 'arising under the Constitution, laws, or treaties of the United States.' 28 U.S.C. § 1331.")

 Accordingly, we find that the plaintiffs' cases constitute no actions arising under the laws of the United States. If the Congress had intended private actions under 29 U.S.C. § 660(c), it would have said so. No other grounds for federal jurisdiction have been presented to this court. Since there is a lack of federal jurisdiction in the instant cases, we shall grant the plaintiffs' motion to remand these cases to the Court of Common Pleas of Philadelphia County.

 An appropriate order follows.

 ORDER - September 27, 1989, Entered

 AND NOW, this 27th day of September, 1989, upon consideration of the plaintiffs' Motion to Remand the above-entitled actions to the Court of Common Pleas of Philadelphia, and the defendant's response thereto, it is hereby ORDERED and DECREED that the above-entitled actions be remanded to the Court of Common Pleas of Philadelphia County, Philadelphia, PA.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.