The opinion of the court was delivered by: TROUTMAN
TROUTMAN, District Judge.
This action or proceeding was removed to this Court from the Court of Common Pleas of Lancaster County on November 26, 1969, when Charles J. Schreder, hereinafter referred to as "defendant", filed in this Court a "petition for removal" pursuant to the provisions of 28 U.S.C. § 1441 et seq., alleging diversity of citizenship, which is admitted and an "amount in controversy" in excess of $10,000.00 which is not denied. General State Authority, hereinafter referred to as "plaintiff" has filed a "motion to remand" the action to the State Court contending that the petition for removal was not filed within thirty (30) days of the receipt of a copy of the "initial pleading" as required by statute.
Both parties concede that the action should be remanded, but for different reasons and with wholly different effects. Plaintiff contends that the Removal Petition was not filed within thirty days as required by 28 U.S.C. § 1446(b) and, therefore, the action should be finally remanded to the State Court. Defendant, on the contrary, contends that the Removal Petition was prematurely filed, that the Court should so find and that, upon remand on that basis, the defendant will accordingly have the opportunity to again file an appropriate petition to remove the action to this Court when the proceedings are ripe for the filing of such petition. The defendant contends that the proceeding has not yet ripened into a "civil action" in the State Courts and that the thirty (30) day period prescribed by 28 U.S.C. § 1446(b) has not yet commenced to run.
He contends that the filing of a Declaration of Taking does not constitute a "civil action" within the meaning of the Removal Statute. He contends that the Declaration merely institutes an In Rem proceeding which ripens into a "civil action", within the meaning of the statute, only if and when a controversy exists as to the "amount of damages" as to which the Pennsylvania Statute prescribes a procedure. Thus, if the parties subsequently agree on "damages" he contends that no "civil action" ever existed which could have been the subject of removal to the Federal Courts. In so contending he seems to overlook the fact that "the only purpose of litigation arising out of the condemnation is to determine the amount of damages" to which the property owner is entitled. In Re Monocacy Park, City of Bethlehem, 181 F. Supp. 880 (E.D. Pa. 1960). Moreover, the fixing of damages is initiated by the subsequent, and sometimes delayed, filing of a petition for the appointment of a Board of View. To thus delay possible removal to the Federal Courts may well be contrary to the congressional policy behind 28 U.S.C. § 1446 which is intended to effect removals "as early as possible". Emporium Trust Co. v. Dolaway, D.C., 205 F. Supp. 280, 284 (1961).
The plaintiff relies heavily upon the case of Chicago, Rock Island and Pacific Railroad Co. v. Stude, 8 Cir., 204 F.2d 116 (1953). But the real issue there was whether the railroad company, which had initiated eminent domain proceedings, was a "defendant" within the meaning of the statute.
The railroad was, of course, not a "defendant" and the Court so held. Additionally, the Iowa procedure there involved was not initially an "in court" proceeding as is expressly provided by the Pennsylvania statute. It was a proceeding initiated with the County Sheriff who appointed a commission to assess damages and it was from the commission's award that an appeal placed the matter "in court" and at which point the proceeding became a "suit" as stated by the Stude court.
But there is little or no similarity between the Iowa procedures and the procedures with which we are here concerned. In any event, the plaintiff's interpretation of the Stude decision has been squarely rejected by this Court in the case of In Re Monocacy, City of Bethlehem, 181 F. Supp. 880, where at page 882 the Court stated:
"* * * The Stude case does not decide * * * that a defendant in a state court proceeding cannot remove an eminent domain case to a federal court until the case has arrived at the jury stage in the state court * * *".
Moreover, the Stude court relied upon Boom Company v. Patterson, 98 U.S. 403, 25 L. Ed. 206 (1878)
and Pacific Railroad Removal Cases, 115 U.S. 1, 5 S. Ct. 1113, 29 L. Ed. 319 (1885)
which involved ex parte proceedings antecedent to the actual commencement of the adversary proceedings between the parties. The Supreme Court so stated in the subsequent case of Searl v. School District No. 2, 124 U.S. 197, 8 S. Ct. 460, 31 L. Ed. 415 (1885). The Colorado statute there involved provided for the appointment of a commission of three to assess damages unless a jury trial was demanded. The Court held (p. 199, 8 S. Ct. p. 461, 31 L. Ed. 415) that this did not
The Colorado procedure passed upon in Searl was more nearly similar to the Pennsylvania procedures than were the "ex parte" procedures involved in the Boom and Pacific cases.
Likewise, the Pennsylvania procedures are similar to those passed upon in Madisonville Traction Company v. St. Bernard Mining Co., 196 U.S. 239, 25 S. Ct. 251, 49 L. Ed. 462 (1905) in which the proceeding was held to be a removable action.
We have sought to consider the record before us in a light most favorable to the defendant to afford him the opportunity to exercise his right to removal. However, because of the specific provisions of the Pennsylvania statute and the applicable decisions, we are forced to conclude that a "civil action or proceeding" exists, within the meaning of 28 U.S.C. § 1446(b), and has so existed since the filing of a notice and a Declaration of Taking on September 16, 1969.
Having so concluded, we face the question whether the Declaration of Taking was or is an "initial pleading" within the meaning of 28 U.S.C. § 1446(b). Although oral argument touched the question, it has not been pursued by way of written brief. That the Declaration of Taking is the "initial pleading" is evident from the language of the Pennsylvania statute, Section 1-406 (26 P.S. § 1-406) of which provides that within thirty (30) days after being served with the Notice of Condemnation preliminary objections must be filed to challenge the right to condemn, the procedures followed, the sufficiency of the security or the Declaration of Taking. That such legal responses are required within ...