the Removal action. The Whitman Defendants maintain that they were Defendants in the State Court action and never waived their right to make this Motion to Remand.
The essence of the position taken by the Multicon Defendants and the Plaintiffs is that it was not necessary to join the Whitman Defendants in the Removal petition because they were not served in the State Court proceeding, did not object when they were told the case was being removed to the Federal Court, and, moreover, after removal they had waived their right to remand by filing a Motion to Dismiss or to Stay and by making a Demand for Jury Trial.
The Petition requested removal of the action pursuant to 28 U.S.C. § 1441(b), which section provides for removal without regard to the citizenship or residence of the parties where the action is founded on a claim or right arising under the Constitution or laws of the United States. Whether there is federal jurisdiction present sufficient to support a petition for removal from a State court to a Federal district court must be determined from Plaintiffs' Complaint at the time of the petition. Pullman Co. v. Jenkins, 305 U.S. 534, 59 S. Ct. 347, 83 L. Ed. 334 (1939); Thiel v. Southern Pac. Co., 126 F.2d 710 (9th Cir. 1942), cert. denied, 316 U.S. 698, 62 S. Ct. 1295, 86 L. Ed. 1767 (1942); First National Bank of Lake Providence v. American Marine and General Insurance Co., 181 F. Supp. 285 (D.C. Ark. 1960). We believe, from an examination of Plaintiffs' complaint filed in the Philadelphia Court of Common Pleas on May 25, 1971, that there is a sufficient allegation of a Federal question involving a claim or right arising under the laws and Constitution of the United States.
Proceeding to the question of whether the Whitman Defendants have standing in this Court to ask that this action be remanded to the State court, we must first determine whether they were Defendants in the case when it was in the State Court. Although counsel for the Whitman Defendants would not accept service of process, and although the Whitman Defendants were not served, they were named in the Complaint, their counsel attended conferences with the Judge in the State court on May 25 and 28, 1971, and they filed Preliminary Objections on June 1, 1971, all prior to the removal of the action to this Federal Court. Under Pennsylvania Law, the filing of Preliminary Objections which do not raise the jurisdictional question constitute a general appearance and a waiver of any question of jurisdiction over the person. Yentzer v. Taylor Wine Co., Inc., 409 Pa. 338, 186 A. 2d 396 (1962). We find that since all four Whitman Defendants were named in Plaintiffs' original Complaint in the State Court, had filed Preliminary Objections which did not raise the question of jurisdiction over the person of the Whitman Defendants in that action, had actively participated in conferences with the Judge, their actions were sufficient to put them under the jurisdiction of the State court, and, therefore, they were Defendants in the State action within the meaning of 28 U.S.C. § 1441 et seq.
28 U.S.C. § 1441, the Removal Statute with which we are concerned in this case, reads as follows:
"(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.