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BERRY v. PENNSYLVANIA PRESSED METALS

January 14, 1994

DALE A. BERRY, JR., Plaintiff
v.
PENNSYLVANIA PRESSED METALS, INC., EDWARD LAMONT, THE GLEASON WORKS, INC., and THE GLEASON CORPORATION, INC., Defendants



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 BACKGROUND

 This action was removed to this court from the Court of Common Pleas of Cameron County, Pennsylvania. The asserted basis for federal subject matter jurisdiction is the existence of a federal question under the Job Training Partnership Act (JTPA), 29 U.S.C. §§ 1501-1781, based on a breach of contract claim alleged by plaintiff Dale A. Berry, Jr.

 Plaintiff alleges that he was hired by defendant Pennsylvania Pressed Metals, Inc. (PA Pressed Metals) under a JTPA program on July 15, 1991. He states that he worked through August 6, 1991, at which time he was laid off due to a reduction in the work force. He alleges that he was recalled to work on or about August 9, 1991. A few days later, on August 12, 1991, he injured his wrist at work and was told by his physician to perform only light work and avoid using his right wrist for one month. Plaintiff alleges that when he relayed his physician's instructions to his supervisor, the latter became irate and refused to allow him to work that day. Berry did work the following three days, August 14, 15 and 16, 1991. Plaintiff's employment with PA Pressed Metals was terminated on August 16, 1991. (Plaintiff's complaint, paras. 15-30)

 Plaintiff alleges two causes of action based on the foregoing chain of events: 1) a state law claim for wrongful termination in violation of Pennsylvania public policy (Count I); and 2) a state law claim that his discharge was a breach of the contract between PA Pressed Metals and the North Central Pennsylvania Regional Planning & Development Commission (North Central) under JTPA. Plaintiff alleges that he is an intended third party beneficiary of the North Central PA Pressed JTPA contract.

 Defendants cite as authority for their position Clinch v. Montana AFL-CIO, 633 F. Supp. 872 (D. Mont. 1986). In Clinch, supra, the court stated:

 
The JTPA provides a cause of action for failure to provide benefits or conditions granted to other employees doing the same type of work. 29 U.S.C. § 1553. The JTPA further requires the employee to conform with a grievance procedure. 29 U.S.C. § 1544(a) and (b). Thus, the JTPA requires plaintiff 'to rely, explicitly or implicitly,' on the JTPA. The substance of plaintiff's compliant is a federal cause of action. The acts complained of were disputes concerning employment or work conditions. The action was properly removed to federal court.

 Id. at 876. See also: West Virginia v. Anchor Hocking Corporation, 681 F. Supp. 1175, 1176-77 (N.D.W.Va. 1987) (dicta).

 For the reasons which follow, we elect not to follow the holding in Clinch, supra, and to follow instead the holding of the Sixth Circuit in AFSCME Local 506 v. Private Industry Council, 942 F.2d 376 (6th Cir. 1991), which we find to be a more thorough and better-reasoned analysis.

 In AFSCME Local 506, supra, the Sixth Circuit Court of Appeals concluded that no private cause of action triable in federal district court exists under the JTPA after analyzing JTPA under the four-part Cort v. Ash test for determining whether a private cause of action is implicit in a federal statute that does not expressly provide such a right. In Cort v. Ash, 422 U.S. 66, 78, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), the Supreme Court listed four factors to be considered:

 
1) whether the plaintiff is of the class for whose especial benefit the statute was created;
 
2) whether there is any legislative intent, explicit or implicit, which either creates or denies a private remedy;
 
3) whether finding an implied cause of action is consistent with the underlying purposes of ...

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