Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

RESIDENT ADVISORY BD. v. TATE

June 22, 1971

RESIDENT ADVISORY BOARD by Rose Wylie, Trustee ad litem, et al., Plaintiffs,
v.
James H.J. TATE, Mayor of Philadelphia, et al., Defendants


Broderick, District Judge.


The opinion of the court was delivered by: BRODERICK

BRODERICK, District Judge.

 On June 2, 1971, Multicon Construction Corp. and Multicon Properties, Inc., two of the Defendants in subject case, filed a Petition in this Court for Removal of this action from the Court of Common Pleas of Philadelphia County. This is an equity action which has been filed in the Court of Common Pleas of Philadephia County on May 25, 1971. The Plaintiff, the Resident Advisory Board, is an unincorporated association which represents tenants in public housing in Philadelphia. Plaintiff, Housing Task Force of the Philadelphia Urban Coalition, is a group engaged in improving housing conditions in the City of Philadelphia. Plaintiffs, Esther Sierra Mendez, Jean Thomas, Mable Smith and Bernice Devine are all residents of Philadelphia who have been on the waiting list for public housing. The Defendants are James H.J. Tate, Mayor of Philadelphia, Fred T. Corletto, Managing Director of Philadelphia, and Multicon Construction Corp., an Ohio corporation which entered into a contract with Multicon Properties, Inc., another Ohio corporation, which is the owner and developer of the property known as Whitman Park Townhouse Project under a contract with the Philadephia Housing Authority. The Defendant, Whitman Area Improvement Council, is an unincorporated association whose members are the residents in the Whitman Urban Renewal Area in which the Whitman Park Housing Project is located. Defendants Alice Moore and Fred Druding are the past president and present president, respectively, of the Whitman Area Improvement Council.

 In the Complaint filed in the Common Pleas Court (and as amended in this Court), the Plaintiffs seek the following injunctive relief: (a) That Mayor Tate be ordered to revoke and rescind his directives to Multicon; (b) That Mayor Tate and Managing Director Corletto be enjoined from preventing construction of the Whitman Housing Project, including influencing the Philadelphia Housing Authority to take any action in derogation of its contract with Multicon; (c) That Multicon be ordered to resume construction; (d) That the Whitman Area Improvement Council be enjoined from interfering with construction work; and (e) That the Defendants Mayor Tate and Fred Corletto be required to pay damages to the Plaintiffs.

 On June 3, 1971, the day after the action was removed to this Court, the Whitman Defendants filed a Motion to Dismiss or Stay the Proceedings and a Demand for Jury Trial. Oral argument was set on the Motion to Dismiss or Stay for Thursday, June 10, 1971. At the time of the Argument, with the consent of all other counsel present, argument was also heard in connection with the Plaintiff's Motion to Strike the Demand for Jury Trial and the Motion to Remand this case to the Court of Common Pleas, which latter motion had been filed by the Whitman Defendants on June 9, 1971.

 We will consider first the Motion to Remand.

 The Whitman Defendants, as the basis for their Motion to Remand, argue that at no time did they join in or consent to 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.
 
"(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
 
"(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.