Zawacki v. Penpac, Inc., Civ. No. 90-0549.

• Decision Date: 19 June 1990
• Docket Number: Civ. No. 90-0549.
• Citation: 745 F. Supp. 1044
• Parties: Edward ZAWACKI and Geraldine McCambridge, Individually and as Administratrix of the Estate of Vivian Zawacki, Deceased, Plaintiffs, v. PENPAC, INC., Rainbow Carting, J.L.B. Leasing, Inc., and Densi R. Perez, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

745 F. Supp. 1044

Edward ZAWACKI and Geraldine McCambridge, Individually and as Administratrix of the Estate of Vivian Zawacki, Deceased, Plaintiffs, v. PENPAC, INC., Rainbow Carting, J.L.B. Leasing, Inc., and Densi R. Perez, Defendants.

Civ. No. 90-0549.

United States District Court, M.D. Pennsylvania.

June 19, 1990.

Robert W. Munley, Scranton, Pa., for plaintiffs.

Cody H. Brooks, Kreder, O'Connell, Brooks & Hailstone, Scranton, Pa., for defendants.

MEMORANDUM

NEALON, District Judge.

Presently before the court is Defendant Penpac, Inc.'s (Penpac) "Motion for Reconsideration of Order Granting Plaintiff's `Motion to Quash Notice of Removal and For Remand of Case to State Court,'" requesting this court to review its Memorandum and Order dated May 3, 1990. See document 10 of record. For the following reasons, the court will deny Penpac's motion for reconsideration and remand the case to the Court of Common Pleas of Lackawanna County, Commonwealth of Pennsylvania.

I. BACKGROUND

As this court noted in its previous Memorandum dated May 3, 1990, this case evolves out of a tragic set of facts involving a collision between a tractor-truck and a pick-up truck. Plaintiff, Edward Zawacki, the driver of the pick-up, was severely injured, and his wife, a passenger, sustained fatal injuries.

On February 8, 1990, plaintiffs commenced a suit against the above-named defendants in the Court of Common Pleas of Lackawanna County by filing a Praecipe for Issuance of a Summons and issuance thereof.¹ Documents 3 & 4 of record. On March 16, 1990, Penpac filed a Notice of Removal of the action from the Court of Common Pleas of Lackawanna County to the United States District Court for the Middle District of Pennsylvania, predicated upon this court's diversity jurisdiction. See document 1 of record; 28 U.S.C. § 1446 (hereinafter Section 1446); 28 U.S.C. § 1332. Plaintiffs countered with a "Motion to Quash the Notice of Removal and For Remand of the Case" to the Court of Common Pleas pursuant to 28 U.S.C. § 1447. See document 2 of record. After careful and thoughtful consideration of the briefs filed on both sides, this court issued a Memorandum and Order granting plaintiffs' motion to quash the Notice of Removal and ordered the case to be remanded to the state court. See document 8 of record.

Following this court's decision, Penpac filed a motion for reconsideration and a stay of remand. See document 10 of record. Both parties submitted their respective briefs and made a supplemental oral argument to this court on May 21, 1990. Consequently, the motion is now ripe for disposition.

II. DISCUSSION

In its Memorandum and Order, this court directed the above-captioned case to be remanded, finding, inter alia, that the action was prematurely removed because the summons² in this instance did not constitute an "initial pleading" under Section 1446(b).³ The court reasoned that: (1) "the summons, or otherwise, fails to state `the claim for relief upon which such action or proceeding is based,'" document 8 of record at 7; (2) "the present record does not allow the court to determine at this time whether the requisite jurisdiction (sic) amount is present," noting that "all doubts as to jurisdiction are resolved in favor of remand," id. at 8 n. 3 (citations omitted); (3) as held in Katz v. Aetna Casualty & Surety Co., Civil No. 89-2145, 1989 WL 46062 (E.D.Pa. April 25, 1989) (1989 U.S. Dist. LEXIS 4417), consideration of removal is permitted only after a complaint has been filed or served, id. at 7; and, (4) assuming, arguendo, that the summons did constitute an "initial pleading" under Section 1446(b), the court, sanctioned by 28 U.S.C. § 1447(e), would still be compelled to remand this case in the interest of justice once the Pennsylvania Department of Transportation and the City of Scranton were joined, especially "in light of the fact that the common practice by attorneys is to file a summons and subsequently conduct discovery to better determine the proper cause of action and the appropriate parties liable to plaintiff(s)...." Id. at 9 (footnote omitted).

Defendant Penpac contends that this court erred when it "characterized the instant action as having been `prematurely removed', on the grounds that `the present record does not allow the court to determine at this time whether the requisite jurisdiction (sic) amount is present.'" Document 10 of record at 1. It maintains that its Notice of Removal alleged both the existence of diversity and an amount in controversy in excess of $50,000, which was certified by Penpac's attorney in accordance with Rule 11 of the Federal Rules of Civil Procedure and left uncontested by plaintiffs. Document 12 of record at 3. It further claims that it was proper for the court to consider the Notice of Removal when determining the jurisdictional amount, and the court should at the very least have made a factual inquiry into the issue of whether the amount in controversy satisfied the jurisdictional amount. Id. at 3-4 (citations omitted).

Penpac's focus on the court's reliance upon the lack of the requisite jurisdictional amount is misplaced. The court ultimately held, although a clearer articulation should have been employed, that a summons does not constitute an "initial pleading" under Section 1446(b).⁴ In its Memorandum, it recognized that courts have diverged in their approach to defining an "initial pleading." In Nero v. Amtrak, 714 F.Supp. 753, 755 (E.D.Pa.1989) and Moore v. City of Philadelphia, Civil No. 88-1424, 1988 WL 50382 (E.D.Pa. May 16, 1988), appeal dismissed, 865 F.2d 250 (3d Cir.1988), both district courts employed a case-by-case analysis to determine whether a summons would constitute an initial pleading under that provision. Conversely, in Katz v. Aetna Casualty & Surety Co., Civil No. 89-2145 and Craig v. Lake Asbestos of Quebec, Ltd., 541 F.Supp. 182, 184 (E.D.Pa. 1982), the courts adopted a bright-line rule stating that a writ of summons should not be considered the "initial pleading" in a case for purposes of the removal statute.⁵

This court also distinguished Nero and Moore in that both involved the district court's jurisdiction based upon a federal question under 28 U.S.C. § 1331 rather than diversity under 28 U.S.C. § 1332, as in this case. Further, the removability of each case was readily obvious. "In Nero, jurisdiction of the federal court was simply revealed through Amtrak's stature as a federally chartered and federally owned corporation; and in Moore, the Notice of Deposition, hand delivered to defendants on the same day of the issuance of the summons, directly disclosed to the defendants that a federal question was implicated." Document 8 of record at 6. Finally, "Section 1446(b) states that the notice of removal shall be filed `after a copy of the initial pleading setting forth the claim for relief upon which such action is based.' In Nero and Moore there were documents expressly indicating the cause of action to be one pursuant to federal law, unlike this case where the summons, or otherwise, fails to state `the claim for relief upon which such action or proceeding is based.'" Id. at 6-7.

The court explicitly embraces the Katz and Craig analysis and, in so doing, holds that a writ of summons does not constitute an "initial pleading" for the purposes of removing a case to federal court.

Penpac contends that such a holding would be fallacious. It avers:

* * * * * *

9. Pennsylvania Rules of Civil Procedure, Rule 1021(b) states as follows:

Any pleading demanding relief for unliquidated damages shall without claiming any specific sum set forth only whether the amount is or is not in excess of $10,000.

10. If the reasoning of this Honorable Court were to be accepted — that a summons is not an "initial pleading" where satisfaction of the jurisdictional amount is not evident from its face — a Pennsylvania complaint could never constitute an initial pleading" (sic) since under Pennsylvania law, a Complaint for unliquidated damages cannot state that the amount of Plaintiff's claim will satisfy the $50,000 jurisdictional amount.

11. Since acceptance of the Court's reasoning would result in the elimination of an "initial pleading" in Pennsylvania, and thereby render removal by defendants within 30 days of an initial pleading virtually impossible, this Honorable Court should reconsider its Order of May 3, 1990.

Document 10 of record at 2-3. At oral argument, Penpac, through its counsel, reiterated this contention alleging that if the court was disinclined to consider a writ of summons as an "initial pleading" when the court's diversity jurisdiction is implicated, then the defendants would be forever precluded from removing such a case because, under Pennsylvania law, the complaint would never state whether the jurisdictional amount has been attained. Moreover, he noted to this court, that such a ruling would contradict the underlying policy that the "initial pleading" requirement exists for the benefit of the removing defendant(s). See also document 12 of record at 5 (citing Craig, 541 F.Supp. at 184) (emphasis in original) ("To pretend that a determination as to whether the Plaintiff's claims exceed $50,000 can only be made upon the filing of a complaint is to therefore engage in a charade, one which becomes even more ludicrous when it is remembered that the `initial pleading' requirement exists solely for the benefit of the removing defendant, and not for the benefit of the plaintiff or other parties").

The court is not persuaded by Penpac's arguments. First, the facts set forth in the state complaint, in conjunction with or apart from the relief sought and the cause of action stated therein, may allow the defendant to reasonably ascertain whether the requisite amount in controversy exists.

Second, if the complaint is not crafted in such a way that permits the defendant to discern whether the jurisdictional amount is attained, then he may utilize the second...