stays further action in the Court of Common Pleas of Dauphin County once the person seeking removal gives written notice to all adverse parties and files a copy of the petition with the clerk of the state court.
Accompanying the seven petitions for removal are several motions. The Petitioners in United States District Court for the Middle District of Pennsylvania Civil Numbers 78-222, 78-223, 78-224, 78-225, 78-226, and 78-227 have all moved to consolidate their petitions for removal with that in Housing Authority of the County of Dauphin v. Ida Danner, Civil No. 78-221 (M.D. Pa. 1978). We will order consolidation for purposes of determining whether the actions have been properly removed.
All Petitioners have moved to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 and for waiver of the removal bond required by 28 U.S.C. § 1446(d). See, Thomas v. Califano, 79 F.R.D. 14 (M.D. Pa. 1978, per Nealon, C.J.); Souder v. McGuire, 516 F.2d 820 (3d Cir. 1975); Brewster v. North American Van Lines, Inc., 461 F.2d 649 (7th Cir. 1972); In re Stump, 449 F.2d 1297 (1st Cir. 1971); United States ex rel. Irons v. Pennsylvania, 407 F. Supp. 746 (M.D. Pa. 1976); McClure v. Salvation Army, 51 F.R.D. 215 (W.D. Ga. 1971). All persons in these cases make less than $350 each month and five of them are on public assistance. All are living in a rent subsidized county housing project. All have submitted sufficient affidavits of poverty, and permission to proceed in forma pauperis without prepayment of fees and costs or security therefor will be granted at this time. 28 U.S.C. § 1915(a). In connection with the permission to proceed in forma pauperis all Petitioners' motions for waiver of the removal bond will be granted. Pasquarella v. Santos, 416 F.2d 436 (1st Cir. 1969); Annotation, 20 ALR Fed. 274 "What Constitutes 'Fees' or 'Costs' Within Meaning of Federal Statutory Provision (Under 28 U.S.C. § 1915(a) and Similar Predecessor Statutes) Permitting Party to Proceed In Forma Pauperis Without Prepayment of Fees and Costs or Security Therefor".
The Petitioners in these removal actions have all requested an extension of time to answer or otherwise plead to the original actions which are the subject of the petitions for removal. These extensions will be granted. We should add the caveat that we believe this Court's jurisdiction of the actions is to be decided by the pleadings viewed as of the time when the petitions for removal were filed, and that for removal jurisdiction to obtain the actions must be such that they could have been brought in federal court originally. 28 U.S.C. § 1441(a); Grubbs v. General Electric Credit Corp., 405 U.S. 699, 702, 31 L. Ed. 2d 612, 92 S. Ct. 1344 (1972); La Chemise Lacoste v. Alligator Co., 506 F.2d 339 (3d Cir. 1974), cert. denied, 421 U.S. 937, 44 L. Ed. 2d 94, 95 S. Ct. 1666. Although we hesitate to order remand without briefs, we question whether an action by a county housing authority against its tenants for excess utility consumption and maintenance charges could have been brought in the United States District Court originally. Defenses based upon federal law will not provide adequate jurisdictional grounds for removal. PAAC v. Rizzo, 502 F.2d 306 (3d Cir. 1974), cert. denied, 419 U.S. 1108, 42 L. Ed. 2d 804, 95 S. Ct. 780. Although an action against the United States Department of Housing and Urban Development commenced in state court is removable pursuant to 28 U.S.C. § 1442, we question whether joining that agency now could avoid a remand if the original actions do not fall within our jurisdiction.
As we stated previously, we hesitate to remand without the benefit of briefs and therefore Petitioners will be ordered to submit briefs in support of the petitions for removal within ten (10) days from the date of the order accompanying this memorandum. Respondent shall have ten (10) days from the Petitioners' filing to file a brief in opposition. One of the issues we would like discussed is whether a state court complaint against a tenant in a county housing project seeking to collect excess utility charges pursuant to an HUD-approved form residential dwelling lease which sanctions the imposition and collection of charges for utility consumption over and above HUD-approved utility allowances sufficiently states a federal question such that the instant actions could have been brought originally in United States District Court. We also note that the Petitioners have the burden of establishing that removal is proper. 14 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3721.
An appropriate order will be entered.
R. DIXON HERMAN UNITED STATES DISTRICT JUDGE [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 448 F. Supp.]
[March 29, 1978]
AND NOW, this 29th day of March, 1978, in accordance with the memorandum this day filed, IT IS ORDERED that the removal actions in Civil Numbers 78-222, 78-223, 78-224, 78-225, 78-226 and 78-227, as more thoroughly described in the caption of this order, are ordered consolidated with Housing Authority of the County of Dauphin v. Ida Danner, Civil Number 78-221 (M.D. Pa. 1978).
IT IS FURTHER ORDERED that Petitioners Ida Danner, Ruth Jones, Katie Dinkins, Kathleen Hill, Wilma Harrell, Mary Matthews and Julia Mitchell are granted leave to proceed in forma pauperis and are granted waiver of the removal bond.
IT IS FURTHER ORDERED that Petitioners' requests for an extension of time to file an answer or otherwise plead to the original complaint are granted, the Petitioners having filed their responses on March 20, 1978.
IT IS FURTHER ORDERED that Petitioners have ten (10) days to file a brief in support of their petitions for removal.
IT IS FURTHER ORDERED that Respondent has ten (10) days from the filing of Petitioners' brief to file a brief in opposition.
R. DIXON HERMAN UNITED STATES DISTRICT JUDGE