The opinion of the court was delivered by: WEBER
The matter before the Court involves a petition to remand a removed action to the State Court where it originated. The plaintiff and moving party contends that the removal was not timely made under the provisions of 28 U.S.C.A. § 1446(b), and should be remanded under the provisions of 28 U.S.C.A. § 1447(c).
The case has a long history and we feel it necessary to recite several relevant portions thereof in support of the conclusions reached herein.
Plaintiff alleges that he suffered an injury by reason of the negligent action of the defendant in performing a surgical operation upon him in the Veterans' Administration Hospital at Erie, Pennsylvania, on May 7, 1958. Plaintiff filed the original action in trespass in the Court of Common Pleas of Erie County, Pennsylvania, against defendant on June 3, 1959. Defendant thereafter filed preliminary objections in the nature of a motion for a more specific statement as a result of which plaintiff filed amendments to his complaint specifying in detail the nature of the alleged negligent acts of defendant. Thereafter, on March 21, 1960, the defendant issued a praecipe for a writ to join the United States of America as an additional defendant in the action under the Pennsylvania Third-Party Defendant Practice, which allows such joinder when the defendant pleads that the additional defendant is either solely liable on the cause of action stated or is either jointly or severally liable with him to the plaintiff, or is liable for indemnification or contribution to the defendant. The United States objected to the attempted joinder and filed a motion to dismiss which was granted on June 18, 1962.
Also, on April 21, 1960 the defendant in the within action filed a complaint in the United States District Court against the United States of America under the Federal Tort Claims Act, 28 U.S.C.A. § 1346 et seq., in which he alleged that the above suit was being maintained against him in the Pennsylvania courts for the injuries claimed by plaintiff and that the said injuries were caused by the negligence of other officers and employees of the United States of America in the treatment of the plaintiff, and that therefore the United States of America would be liable to the defendant in the state action for indemnification or contribution for damages which might be sustained by him as a result of any liability which might be imposed upon his in the state action. On November 1, 1960, the United States District Court action was dismissed as being prematurely brought, Schuster v. United States of America, Civil Action No. 724 Erie, United States District Court, Western District of Pennsylvania.
Since under the Pennsylvania practice the filing of an appearance by the defendant in a trespass action operates as a general denial, no responsive pleading is required, and the case was listed on the Trial List of the Court of Common Pleas of Erie County, Pennsylvania, on the January 1962 Trial List, and was continued remanet on successive trial lists.
On January 6, 1964, the defendant filed a Motion for Leave to File an Answer to the Complaint and Amended Complaint which was granted. This answer raised the defense that the defendant was an officer of the United States and immune from suit in a state court under Federal law. At the same time the defendant moved to dismiss the action and moved for Judgment on the Pleadings on the grounds that the defendant was an employee of the United States and acting within the scope of his official duties as such employee when the injury complained of occurred and thus the plaintiff is barred from suit by virtue of the provisions of the Federal Tort Claims Act, 28 U.S.C.A. § 1346. On September 28, 1964, the Court of Common Pleas of Erie County, Pennsylvania, dismissed defendant's motions for dismissal and for judgment on the pleadings, holding that the immunity from suit claimed by the defendant did not apply to the negligence charged to have been committed by defendant as a surgeon in the operating room. 48 Erie County Legal Journal 38, -- -- -- Pa.D. & C.2nd -- -- -- .
An appeal taken to the Supreme Court of Pennsylvania was quashed by that Court on the ground that the Order of the lower court was interlocutory and not appealable, April 20, 1965, 418 Pa. 68, 208 A.2d 864.
Within the twenty day period of notification of the decision of the Pennsylvania Supreme Court quashing the appeal the defendant in the State court action filed his petition to remove the action to the United States District Court.
The plaintiff now moves to remand the case to the State Court raising the objection that the removal was not timely under 28 U.S.C.A. § 1446(b) which provides that the petition for removal shall be filed within twenty (20) days after receipt by the defendant of a copy of the initial pleading setting forth the claim for relief. The defendant petitioner points to the second paragraph of § 1446(b), which recites:
'If the case stated by the initial pleading is not removable, a petition for removal may be filed within twenty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.'
The defendant argues that none of the plaintiff's pleadings ever indicated that defendant was a federal officer at the time the surgery was performed, or was acting under color of his office, and in fact the plaintiff has strenuously maintained after the issue was raised by defendant's Answer that the defendant was not a federal officer at the time the surgery was performed. The defendant argues that it must be the plaintiff who asserts a removable case and the defendant cannot by making allegations which are denied by the plaintiff develop a removable case. The defendant cites Putterman v. Daveler, 169 F.Supp. 125 (D.C.Del.1958) as supporting this position. There the Court said at page 130:
'Where an action as originally brought in a State Court was not removable to a Federal Court but certain circumstances have changed and the action has become removable, the cases have uniformly held that, in order to become removable, such change of circumstances must have been brought about by the voluntary act of the plaintiff. Thus, where an amended pleading of the plaintiff had removed a party whose presence prevented removal, or a voluntary non-suit or a discontinuance as to such party was had, the Courts have held that the case had become removable. It is uniformly otherwise where the non-suit or dismissal was involuntary on the part of the plaintiff and it has been held that a verdict rendered in favor of a resident defendant does not make the case removable by a co-defendant.'
In that case it was the motion of the resident defendant, itself, that was sought by a co-defendant as the ground of removal. Similarly, Potter v. Carvel Stores of New York, Inc., 203 F.Supp. 462, at page 467 (D.C.Md.1962), states:
'The authorities are uniform that, unlike the case at bar, the 'amended pleading, motion, order, or other paper' must emanate from either the voluntary act of the plaintiff in the state court, or other acts or events not the product of the removing defendant's activity * * * Thus, the flaw in defendant's contention is that the 1949 amendment to 28 U.S.C.A. § 1446(b) did not create a new jurisdictional basis for removal arising out of his filing a motion to dismiss, or, in the alternative, to stay the proceedings. The amendment was not designed to permit a defendant to remove by reason of an issue be interjected into the state proceedings.'