reading of the authorities, and much reflection regarding the theory on which the proper exercise of the right of removal must be founded convinces me, although I do not find it stated elsewhere in just this form, that the only basis on which a federal court will be hospitable to a litigation translated from a state court is where the federal court is given the whole case to decide in all its aspects, and is thus left free to exercise a plenary jurisdiction in respect of the case, untrammelled by any procedural estoppels resulting from the acts or omissions of the defendant, who has effected the removal. Cf. Martin v. Baltimore & Ohio R. Co., 151 U.S. 673, 687, 14 S. Ct. 533, 38 L. Ed. 311. Having thus on its own initiative submitted itself to the jurisdiction of the state court, and having unsuccessfully tried there an issue, which, if successfully maintained, would have resulted in a dismissal of the action, the defendant elected its forum; and, having made the election, it cannot thereafter be allowed to remove the case to the federal court. If the defendant should make a similar motion here, the law of the case on such a motion would necessarily be the decision of the state court, because that settled the issue between the parties. This situation pointedly illustrates the reason why the removal of this case was precluded by the defendant's act. Such a straddle as the defendant has attempted cannot be tolerated where, as under our system, courts of two different sovereignties exercise their respective jurisdictions in the same territory. I think, perhaps, that I cannot point my moral better than by calling attention to the fact that in its answer the defendant apparently seeks again to raise the question of the plaintiff's incapacity to sue owing to its dissolution. Thus the defendant asks a new day in a new court on an issue which has been finally settled, as the law of the case, between the parties hereto, by the above-mentioned order of the New York Supreme Court, from which, owing to the removal, an appeal could not be taken. The defendant cannot thus retrieve a lost issue.' (p. 379).
The defendant submitted his complete immunity defense to the State Court.
Judge Laub in his opinion recognized the immunity doctrine as set forth in Gregoire v. Biddle, 177 F. d 579 (2nd Cir. 1949), and Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 1347, 3 L. Ed. 2d 1434 (1959), as well as the arguments of the opponents of the doctrine.
'Whatever may be said of it, the fact at this level is that the doctrine exists in both the Federal and Pennsylvania law. The problem before us is, therefore, whether the defendant was a high-ranking public officer of government at the time of the operation, and whether, at that time, he was performing a purely public duty. If the answer to both these questions is in the affirmative, the doctrine immunizes him from this action.'
Vendetti v. Schuster
48 Erie Co. L.J. -- --
-- -- Pa.D. & C.2d -- --
Erie Co. Pa., 1964).
The Common Pleas Court held that the circumstances of the physician-patient relationship in this case, the position of the defendant on the medical staff of the Veterans' Administration Hospital, the circumstances under which the alleged act of negligence occurred, and the absence of policy making functions in the hands of defendant, all precluded the application of the immunity doctrine.
Numerous cases support the proposition that by litigating the issues in the state court, by demurrer, by pleas in abatement, by answer on the merits, by trial, or other evidence of submission to the state court's jurisdiction, operate to waive the right of removal. Alley v. Nott, 111 U.S. 472, 4 S. Ct. 495, 28 L. Ed. 491; Scharff v. Levy, 112 U.S. 711, 5 S. Ct. 360, 28 L. Ed. 825; Martin v. B. & O.R.R. Co., 151 U.S. 673, 14 S. Ct. 533, 38 L. Ed. 311; Briggs v. Miami Window Corp., D.C., 158 F.Supp. 229; Vanderwater v. City National Bank of Kankakee, D.C., 28 F.Supp. 89; General Phoenix Corp. v. Malyon, D.C., 88 F.Supp. 502.
Although it was not a removal case, the Supreme Court of the United States has stated what we believe to be a principle of general application to this problem: In England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S. Ct. 461, 11 L. Ed. 2d 440 (1964), where the United States District Court had abstained from decision pending a review of the state statute in the state courts, and when after full litigation of all issues in the state courts including the Federal Constitutional question the plaintiffs sought to return to the United States District Court, the Supreme Court held at 375 U.S. p. 419, 84 S. Ct. p. 467:
'We now explicitly hold that if a party freely and without reservation submits his federal claims for decision by the state courts, litigates them there, and has them decided there, then -- whether or not he seeks direct review of the state decision in this Court -- he has elected to forgo his right to return to the District Court.'
For the reasons above stated we are of the opinion that the within action must be remanded to the state court because the removal was not timely and because the defendant has waived his right of removal by the submission of his Federal question to the state court, without reservation.
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