The opinion of the court was delivered by: NEWCOMER
The plaintiff in this case is a roofing contractor that was awarded the job of repairing the roof of the Hershey High School in Hershey, Pennsylvania. The defendant, Day and Zimmerman, Inc. ("D & Z") is the engineering firm hired by the school district to provide plans and specifications for the repair of the roof. The defendant Simpson, Gumpert & Heger, Inc. ("SGH") is an engineering consultant that was hired by D & Z to perform a study of the roofing problem.
The plaintiff alleges that the defendants' wrongful acts led to a work stoppage that damaged the plaintiff, that D & Z slandered the plaintiff, and that D & Z interfered with the plaintiff's contractual relations. The plaintiff seeks recovery for these alleged injuries. The only basis for jurisdiction is diversity.
The plaintiff has now moved for transfer of the entire case to the Dauphin County Court of Common Pleas pursuant to 42 Pa. C.S.A. § 5103(b). That statute reads, in pertinent part, as follows:
Where a matter is filed in any United States court for a district embracing any part of this Commonwealth and the matter is dismissed by the United States court for lack of jurisdiction, any litigant in the matter filed may transfer the matter to a court or magisterial district of this Commonwealth by complying with the transfer provisions set forth in paragraph (2).
(2) Except as otherwise prescribed by general rules, or by order of the United States court, such transfer may be effected by filing a certified transcript of the final judgment of the United States court and the related pleadings in a court or magisterial district of this Commonwealth.
The normal course of action for a plaintiff to take in this case would be to withdraw its federal action against SGH and refile its claims against both SGH and D & Z in state court.
In this case, such a procedure runs up against the possibility that the limitations period has run since the time the action was filed in this court. It is precisely this problem that § 5103(b) is designed to alleviate. By allowing the district court to transfer an erroneously filed case to the Court of Common Pleas, rather than just dismissing it, § 5103(b) preserves the plaintiff's cause of action. The policy behind this section is that a plaintiff who files a timely action in Federal District Court should not lose his opportunity to litigate that case on the merits simply because he is in error regarding federal jurisdiction. See Weaver v. Marine Bank, 683 F.2d 744 (3d Cir. 1982).
The problem presented by this case is that the claims of only one co-defendant have been dismissed for lack of jurisdiction. This fact, according to both defendants, prevents the transfer of the claims against them under § 5103(b). D & Z argues that § 5103(b) may only be used to transfer an entire case to the Court of Common Pleas. Both D & Z and SGH argue that the claims against SGH may not be transferred to Common Pleas because this court has jurisdiction over those claims.
While I am convinced that I would be able to transfer those claims asserted against D & Z alone under § 5103(b), I need not reach that issue because I find that I may transfer the entire case to the Court of Common Pleas.
To interpret § 5103(b) in the limited manner suggested by the defendants would severely restrict the scope and utility of that section. It would lead to piecemeal and duplicative litigation, with the waste of judicial resources and the threat of inconsistent verdicts that such litigation engenders.
For the foregoing reasons I will grant the plaintiff's motion to transfer, and I will transfer the action to the Dauphin County Court of Common Pleas. [EDITOR'S NOTE: The following court-provided ...