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TYLER v. PRUDENTIAL INS. CO. OF AMERICA

October 28, 1981

Carla B. TYLER, Administratrix of the Estate of Donald M. Tyler, a minor, deceased, Plaintiff,
v.
The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant



The opinion of the court was delivered by: DIAMOND

MEMORANDUM OPINION

This action was removed to this court by the defendant pursuant to 28 U.S.C. § 1441. Presently before the court is plaintiff's motion to remand, which will be granted.

 BACKGROUND

 The issue before us is whether the removal petition was timely filed. The undisputed facts relevant to that issue are:

 On March 3, 1981, the plaintiff instituted this action in the Court of Common Pleas of Allegheny County, Pennsylvania, by filing against the defendant a petition for a rule to show cause why basic-loss benefits under the Pennsylvania No-Fault Insurance Act should not be paid to the plaintiff. A copy of the petition was sent by certified mail to the defendant who received it on March 4, 1981.

 On March 16, 1981, the defendant filed preliminary objections to the plaintiff's petition seeking dismissal of the action on the grounds that service of process was defective and that an action for No-Fault benefits could not be commenced by a petition for a rule to show cause. The defendant's preliminary objections were sustained on April 6, 1981. However, instead of formally ordering a dismissal of the action the court ordered that the petition for the rule to show cause "... shall be redesignated as a complaint in assumpsit in the prothonotary's office and a writ shall be issued pursuant thereto and service shall be accomplished in accordance with the Rules of Civil Procedure for assumpsit action." The defendant accepted service of the complaint on April 10, 1981, subsequently filed an answer thereto, and on May 4, 1981, filed the petition to remove the action to this court. Plaintiff then moved to remand on the ground that the petition for removal was not timely filed.

 DISCUSSION

 The time limit for removal of civil cases to federal district court is found in 28 U.S.C. § 1446(b) which provides in part:

 
The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based ...

 The thirty-day period is mandatory and cannot be extended by consent of the parties or by order of court. Crompton v. Park Ward Motors, Inc., 477 F. Supp. 699, 701 (E.D.Pa.1979); Typh, Inc. v. Typhoon Fence of Pennsylvania, Inc., 461 F. Supp. 994, 996 (E.D.Pa.1978). The purpose of § 1446(b) is to "provide a uniform and definite time for the defendant to remove the action," Haun v. Retail Credit Co., 420 F. Supp. 859, 863 (W.D.Pa.1976), and the statute is to be strictly construed against removal and in favor of remand. Crompton, 477 F. Supp. at 702 n.3.

 The plaintiff argues that the initial pleading in the action was the petition for the rule to show cause and that the receipt of that petition by the defendant commenced the running of the thirty-day period for removal. Under plaintiff's theory, the defendant's removal petition, dated May 4, 1981, was tardy, since the thirty-day period would have expired on April 4, 1981-thirty days after the defendant received the petition for a rule to show cause.

 The defendant contends that the service of the original petition was defective and that the thirty-day time limit for removal did not commence until defendant was properly served with a complaint in assumpsit on April 10, 1981. Defendant also argues that the initial action based on the rule to show cause was dismissed when the court sustained the preliminary objections. Asserting that the redesignation of the petition as a complaint was for the convenience of the plaintiff, the defendant argues that after the ruling on the preliminary objections and before service of the complaint in assumpsit, there was no action to remove.

 We believe that the defendant's challenge to the motion to remand based on the alleged insufficient service of process is without merit. Service of process under state law does not control for removal purposes. Perimeter Lighting, Inc. v. Karlton, 456 F. Supp. 355, 359 (N.D.Ga.1978). And the fact that service under state practice has not been perfected does not in and of itself prevent removal. Id. All that is required is that the defendant receives, through service or otherwise, a copy of an "initial pleading" from which the defendant can ascertain that the case is one which is or has become removable. International Equity Corp. v. Pepper & Tanner Inc., 323 F. Supp. 1107 (E.D.Pa.1971). Thus the variety of state practices are subordinated to a uniform rule of federal practice which provides that the time period for removability is controlled by receipt of the initial pleading. Perimeter Lighting, Inc., 456 F. Supp. at 359. See also 1A Moore's Federal Practice P 0.168(3.5), at 467 (2d ed. 1974).

 In the present case, it is not disputed that the defendant received a copy of the rule-to-show-cause petition on March 4, 1981. Therefore, the time period for removal began to run on March 4, 1981, provided that the ...


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