Wednesday, December 31, 2008

consumer - state UDAP claims - federal court - removal

Byrd v. Car and SUV Outlet, et al. - ED Pa. - December 29, 2008

Plaintiff sued defendant, from which he bought a used car, for various alleged state-law causes of actions, including one under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, which claim alleged several distinct violations, including assertions that Defendants violated the UTPCPLby breaching two federal statutes, the Truth in Lending Act and the Equal Credit Opportunity Act. Defendants sought to remove the case to federal court.

The court refused the motion to remove, holding that it did not have jurisdiction, since plaintiff had sought relief only under state law, not federal law, which were "merely two theories on which Plaintiff plans to proceed to establish a state law UTPCPL violation."

The court also held that it could still have jurisdiction if “the vindication of [Plaintiff’s] right[s] under state law necessarily turned on some construction of federal law” but held that “the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction. The federal issue must be “an essential one in the forefront of the case and not collateral, peripheral, or remote”

The federal issues in this case were held to be "not essential to establishing Plaintiff’s right to relief....The TILA and ECOA violations are merely two theories, in addition to the various theories based on state law, that Plaintiff has asserted to establish his right to relief under the UTPCPL. This is insufficient, however, to establish federal jurisdiction."

UC - willful misconduct - employer disciplinary policy - lack of Board findings

Jones v. UCBR - Cmwlth. Court - December 31, 2008 - unpublished memorandum decision

Claimant was terminated for several alleged incidents of no-call/no-show.

inconsistent Board findings - The court found that "[b]ecause the Board's findings are inconsistent with the evidence, this matter must be remanded for clarification...and a new decision."

no finding on employer compliance with its own disciplinary policy - Claimant argued that the employer did not comply with its own disciplinary policy and that therefore "she should be allowed to return to work for Employer to comply with the policy." The court said that "[w]here an employer promulgates a specific disciplinary system, a discharge under that system may not be deemed to be for willful misconduct if the employer fails to follow the specified process. PMA Reinsurance Corp. v. UCBR, 558 A.2d 623 (Pa. Cmwlth. 1989).

The Board made no findings on whether Employer followed its policy by giving warnings to Claimant after the alleged occurrences of her no calls/no shows, and the Board did not mention the issue in its decision. This issue therefore must be addressed upon remand of this matter. Accordingly, the Board's order is vacated and this matter is remanded to the Board for a clarification of its inconsistent findings of fact and for additional fact finding, if necessary, as to whether Employer complied with its written policy requiring that it provide employees with verbal and written warnings in the case of no call/no show occurrences."