Martin v. WILKES-BARRE PUB. CO.

• Citation: 567 F. Supp. 304
• Decision Date: 01 July 1983
• Docket Number: Civ. No. 83-0680.
• Parties: Dorothy Kay MARTIN, Plaintiff, v. WILKES-BARRE PUBLISHING COMPANY and Richard L. Connor, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

567 F. Supp. 304

Dorothy Kay MARTIN, Plaintiff, v. WILKES-BARRE PUBLISHING COMPANY and Richard L. Connor, Defendants.

Civ. No. 83-0680.

United States District Court, M.D. Pennsylvania.

July 1, 1983.

Solomon Lubin, Wilkes-Barre, Pa., for plaintiff.

Richard Goldberg, Wilkes-Barre, Pa., R. Eddie Wayland, Nashville, Tenn., for defendants.

MEMORANDUM AND ORDER

CONABOY, District Judge.

This action was originally filed in the Court of Common Pleas of Luzerne County, Pennsylvania on or about April 15, 1983. On May 20, 1983, the Defendants filed a petition for removal of the case to this Court pursuant to 28 U.S.C. § 1441(b) and (c).¹ The Plaintiff then filed an Answer to Defendants' Petition for Removal and a supporting memorandum of law. By Memorandum and Order filed June 16, 1983, the Court informed the litigants that it would treat the Plaintiff's submissions as a motion to remand the case to state court and should therefore be appropriately briefed in accordance with the Local Rules of Court. Additionally, the Court directed the Defendants to amend their petition for removal to "clearly set forth the specific federal constitutional and/or statutory provisions" relied upon as a basis for removal so that the Court would be in a position "to plainly determine if it is appropriate to retain all, part of none of this action in federal court." See Document # 8 at 3. The parties have complied with the Court's directive and thus the issue of the propriety of removal in this case is now ripe for disposition. After careful consideration of the present record in conjunction with the applicable principles of law and policy governing the statutory right of removal to federal court, we conclude that removal was improper here; accordingly, we will remand the entire case to its original situs of filing, the Court of Common Pleas of Luzerne County, Pennsylvania.

I

The Plaintiff's state court Complaint consists of two causes of action, one in assumpsit and a second in trespass. The assumpsit cause of action alleges that the Defendant Wilkes-Barre Publishing Company (hereinafter the Company) breached the terms of an employment contract it had entered into with the Plaintiff by dismissing her for placing business advertisements in a rival newspaper. Complaint, ¶¶ 18-19.

The trespass cause of action is divided into two counts. The first count is against the Company alone and alleges the state law tort of wrongful discharge from employment. See Geary v. United States Steel Corporation, 456 Pa. 171, 319 A.2d 174 (1974); Yaindl v. Ingersoll-Rand Co., 281 Pa.Super. 560, 422 A.2d 611 (1980); Bruffet v. Warner Communications, Inc., 692 F.2d 910 (3d Cir.1982); Paranich v. Metropolitan Life Ins. Co., Civ. No. 82-1551 (M.D.Pa. June 14, 1983). Under Pennsylvania law, it has recently been recognized that "when the discharge of an employee-at-will threatens public policy, the employee may have a cause of action against the employer for wrongful discharge." Yaindl v. Ingersoll-Rand, supra, 281 Pa.Super. at 571, 422 A.2d 611 (emphasis added). See also Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631 (1980); Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978); Perks v. Firestone Tire & Rubber Co., 611 F.2d 1363 (3d Cir.1979); Molush v. Orkin Exterminating Co., Inc., 547 F.Supp. 54 (E.D.Pa.1982). In Count I of her trespass cause of action, the Plaintiff alleges that her discharge from employment was "wrongful and contrary to public policy" in that, inter alia, the Company's actions violated the First Amendment to the United States Constitution and also Article I, Sections 1 and 7 of the Pennsylvania Constitution. Complaint, ¶ 22.

The second count of the Plaintiff's trespass cause of action is also a state law claim charging the Company and Richard L. Connor with wrongful interference with the Plaintiff's employment contract and other business interests. Complaint, ¶¶ 25-27.

II

As previously noted, both Defendants have petitioned to remove this case to federal court pursuant to 28 U.S.C. § 1441. They contend that removal is proper under that provision since the Court would have original jurisdiction of the subject-matter of this action pursuant to 28 U.S.C. § 1331 because it involves a "federal question." Specifically, the grounds asserted by the Defendants to support federal question jurisdiction here are: (1) the Plaintiff's allegation in her Complaint of a violation of the First Amendment of the United States Constitution; and (2) the preemption by federal labor law of the Plaintiff's state law claims.

We emphasize at the outset, as we did in our previous Memorandum in this case,² that the district court may and should always determine sua sponte whether its subject-matter jurisdiction has been properly invoked by a removal petitioner. 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction, § 3739 at 756-57 (1976) and cases cited therein at n. 4; see Medlin v. Boeing Vertol Co., 620 F.2d 957, 960 (3d Cir.1980). Such an inquiry is necessary since the Supreme Court has forcefully adjured strict construction of the federal statutory removal procedure:

Not only does the language of the removal statute, 28 U.S.C. § 1441 evidence the Congressional purpose to restrict the jurisdiction of the federal courts on removal, but the policy of the successive acts of Congress regulating the jurisdiction of federal courts is one calling for the strict construction of such legislation. The power reserved to the states under the Constitution to provide for the determination of controversies in their courts, may be restricted only by the action of Congress in conformity to the Judiciary Articles of the Constitution. "Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined." Healy v. Ratta, 292 U.S. 263, 270 54 S.Ct. 700, 703, 78 L.Ed. 1248.

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). See also American Fire & Casualty Co. v. Finn, 341 U.S. 6, 10, 71 S.Ct. 534, 538, 95 L.Ed. 702 (1951); Westmoreland Hospital Association v. Blue Cross of Western Pennsylvania, 605 F.2d 119, 123 (3d Cir.1979), cert. denied, 444 U.S. 1077, 100 S.Ct. 1025, 62 L.Ed.2d 759 (1980); La Chemise Lacoste v. Alligator Co., Inc., 506 F.2d 339, 344 (3d Cir.1974), cert. denied, 421 U.S. 937, 95 S.Ct. 1666, 44 L.Ed.2d 94 (1975).

The general rules governing removal in an alleged "federal question" case such as this were well stated in Schultz v. Coral Gables Federal Savings & Loan Association, 505 F.Supp. 1003, 1008 (S.D.Fla. 1981) as follows:

First, federal law must be an "essential" element of the plaintiff's cause of action. Gully v. First National Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936). Second, the federal question which is the predicate for removal "must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal." Id. at 113, 57 S.Ct. at 98. As a general rule then, plaintiff's state court pleadings control removability. See Paxton v. Weaver, 553 F.2d 936 (5th Cir.1977). Artful pleading cannot, however, be used to conceal an essentially federal claim.... The accepted rule is that upon removal the court should inspect the complaint carefully to determine whether a federal claim is necessarily presented by plaintiff, even if plaintiff has couched his pleadings exclusively in terms of state law. See In Re Carter, 618 F.2d 1093, 1101 (5th Cir.1980). Third, the federal question may not be inferred from a defense asserted or one expected to be made. See Gully, supra, 299 U.S. at 113, 57 S.Ct. at 98. Fourth, the federal question raised must be a "substantial" one. Hagans v. Lavine, 415 U.S. 528, 536, 94 S.Ct. 1372, 1378, 39 L.Ed.2d 577 (1974). Finally, the party seeking removal bears the burden of satisfying each of these preconditions. Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127-28, 94 S.Ct. 1002, 1003, 39 L.Ed.2d 209 (1974); Wolgin v. State Mut. Investors, 442 F.Supp. 974, 975 (E.D.Pa.1977).

See also People of the State of Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571, 575-76 (7th Cir.), cert. denied, ___ U.S. ___, 103 S.Ct. 469, 74 L.Ed.2d 618 (1982); First National Bank of Aberdeen v. Aberdeen National Bank, 627 F.2d 843, 849-50 (8th Cir.1980); PAAC v. Rizzo, 502 F.2d 306, 312-13 (3d Cir.1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975). With the above principles of law and policy in mind, we will now consider in turn the two grounds alleged by the Defendants to confer federal question jurisdiction of the Court over this matter.

A

By alleging that her discharge from employment was wrongful because her First Amendment freedoms under the United States Constitution were infringed by the Company, the Plaintiff has apparently satisfied the first three prerequisites for removal, i.e., federal law is an essential or direct element of the claim, it appears on the face of the complaint, and does not arise or is not inferred from a defense. The final factor which must be present, however, is that the asserted federal question must be a "substantial" one. PAAC v. Rizzo, supra, 502 F.2d at 312; see Hagans v. Lavine, supra. See also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 70-71, 98 S.Ct. 2620, 2628-29, 57 L.Ed.2d 595 (1978); McLucas v. DeChamplain, 421 U.S. 21, 28, 95 S.Ct. 1365, 1370, 43 L.Ed.2d 699 (1975). "The requirement of substantiality does not refer to the value of the interests at stake but to whether there is any legal substance to the position the Plaintiff is presenting." Boyle v. O'Bannon, 543 F.Supp. 66, 67 (M.D.Pa.1982); 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction, § 3564 at 426 (1975). In Hagans v. Lavine, su...