UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF PENNSYLVANIA
July 1, 1981
EASTON AREA JOINT SEWER AUTHORITY
BUSHKILL-LOWER LEHIGH JOINT SEWER AUTHORITY, Bushkill Township, Plainfield Township, Palmer Township, Upper Nazareth Township, Borough of Tatamy and Borough of Stockertown v. Jack J. SCHRAMM and Gilbert Commonwealth Engineers/Consultants
The opinion of the court was delivered by: TROUTMAN
MEMORANDUM AND ORDER
In federal courts the collision of federal and state procedure frequently generates complex or unique questions of law,
an accurate characterization of the present issue.
In February of 1981 plaintiff commenced this action in the Court of Common Pleas of Northampton County, Pennsylvania, to recover compensatory damages from defendants for breach of contract and tortious interference with contractual relationships.
Several weeks later, well within the time frame contemplated by the Pennsylvania Rules of Civil Procedure,
defendants Plainfield and Bushkill Townships filed praecipes to join the regional director of the United States Environmental Protection Agency as an additional defendant and later obtained permission to delay service of a copy of the complaint upon him until the state court had ruled upon pending preliminary objections.
The townships did, however, serve the praecipes upon the regional director, who obtained a copy of the original complaint and thereafter promptly filed a petition for removal under 28 U.S.C. § 1446(b).
Defendant Bushkill-Lower Lehigh Joint Sewer Authority (the Authority) now moves to remand on the grounds that the action could not be removed properly until the complaint had been served upon the regional director. The praecipe, the Authority argues, cannot be considered an "initial pleading" within the meaning of the federal removal statute,
and, therefore, the regional director did not have the right to remove the case from the state court. More importantly, the Authority contends that, without service of the complaint, the regional director cannot properly meet the requirement that the moving party state clearly the facts which entitle him to removal.
Apparently few courts have addressed the question, within the present context, of whether a case must be remanded where the removing defendant has not received an "initial pleading" adequate to satisfy the relevant federal statute, which allows a defendant to remove an action within a period activated by receipt, not filing, of the complaint.
The statute seeks to provide defendant with notice of the claims against him before the time in which he must remove the action. The requirement of an initial pleading exists to benefit the removing defendant, not the plaintiff or other parties.
Remanding the action for an arguable failure to comply with a safeguard which the regional director deemed unnecessary for his own protection would be small reward for his diligence,
particularly where he properly removed the action
and undoubtedly will do so again upon service of the complaint.
Whether the regional director, without service of the complaint, can satisfy the requirement of Section 1446(a) poses a more serious problem. The removal petition must contain a "short and plain statement of the facts which entitle him ... to removal".
Federal jurisdiction cannot be established by asserting a counterclaim;
the removing party must rely upon the allegations of the complaint.
True, express statutory authority permits a federal officer, sued in his official capacity, to remove an action to federal court,
but from the face of the praecipe served upon him and the copy of the complaint which he procured himself, he could not make such a determination. The complaint details causes of action sounding in tort and breach of contract against the defendants, not the regional director. The claims which the townships propose a assert against him cannot be ascertained from the complaint or the praecipes. Requiring the regional director to await service of the complaint to satisfy the "initial pleading" language of the removal statute unnecessarily exalts form over substance. Insisting that he properly and adequately establish federal jurisdiction in his removal petition does not.
Accordingly, the Authority's motion to remand will be granted.