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May 30, 1985

SHIRLEY SHIFFLER, Administratrix of the Estate of JOHN W. SHIFFLER, Deceased, and SHIRLEY SHIFFLER, in her own right

The opinion of the court was delivered by: POLLAK


 This action was originally filed in the Court of Common Pleas of Philadelphia County in November, 1984. Although the suit is denominated an "Action in Declaratory Judgment," the complaint seeks an order directing the defendants to make payment to plaintiff of amounts allegedly due under two insurance policies issued to the deceased, John W. Shiffler, through his employer, Westinghouse Electric Corporation ("Westinghouse"). Coverage for both policies was provided by Equitable Life Assurance Society of the United States ("Equitable"). Westinghouse Electric Company is the plan administrator for both plans. Westinghouse and Equitable are defendants in this action as is Westinghouse Insurance Plan ("the Plan").

 In December 1984, defendants removed this action to this court. The petition for removal stated that this court had original jurisdiction to hear this action pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e)(1) in that the suit sought to recover benefits and enforce rights under employee benefit plans and thus, was properly labelled an action under the Employee Retirement Income Security Act ("ERISA").

 Plaintiff filed an "answer to petition for removal" on January 10, 1985. This document was treated as a motion to remand to the Court of Common Pleas and defendants filed a response to this motion on January 22.

 The motion to remand argued that the suit raised "a narrow issue encompassed under section 502(a)(1)(B) of ERISA (29 U.S.C. § 1132(a)(1)(B)) over which there is concurrent jurisdiction of both State and Federal Courts and Plaintiff is entitled to pursue her remedies in State Court." Brief in Support of Plaintiff's Answer to Defendants' Petition for Removal at 2. In a Memorandum/Order dated January 31, 1985, this court denied the motion to remand. This decision was based upon the fact that plaintiff did not contest the characterization of the suit as one arising under ERISA and the existence of concurrent state and federal court jurisdiction to hear such suits. I rejected plaintiff's argument that she was entitled to select a state forum rather than a federal forum for her suit and adopted the analysis of this issue set forth in McConnell v. Marine Engineers Beneficial Association, 526 F. Supp. 770 (N.D. Cal. 1981).

 Plaintiff filed a notice of appeal of this ruling on February 15, 1985. On March 18, the Court of Appeals for the Third Circuit granted defendants' motion to quash the appeal due to the lack of a final order.

 Immediately thereafter, on March 22, 1985, plaintiff filed a second motion to remand this suit to the Court of Common Pleas. Defendants oppose this motion on the ground that it merely repeats the arguments made in the original motion to remand. Defendants also contend that the filing of this motion constituted a violation of Federal Rule of Civil Procedure 11 and seek an award of counsel fees thereunder.

 Although the second motion to remand contains some discussion of the arguments which were rejected by this court in the Memorandum/Order of January 31, 1985, those arguments do not form the sole basis for the second motion to remand. The current motion also asserts that the action was not properly characterized as a suit under ERISA. Plaintiff contends that the complaint contains solely state law claims against the defendants and that plaintiff did not intend to assert rights under ERISA. Therefore, plaintiff argues, this court could not have had original jurisdiction of this case since diversity of citizenship is lacking. Consequently, the suit was removed to this court without a basis for federal jurisdiction, plaintiff contends, and this court has no choice but to remand the matter to the state courts.

 The principles which govern the issues raised by the present motion were quite recently addressed by Justice Brennan, speaking for a unanimous Court, in Franchise Tax Board of the State of California v. Construction Laborers Vacation Trust For Southern California, 463 U.S. 1, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983). In that case, the California Franchise Tax Board had sued in a California state court to recover taxes allegedly due to the state from the Construction Laborers Vacation Trust, an employee welfare benefit plan within the meaning of ERISA, 29 U.S.C. § 1002(1). The defendant removed the action to federal court and a motion to remand was denied. The district and circuit courts thereafter addressed the merits of the Franchise Tax Board's claim. On certiorari, the Supreme Court concluded that the district court lacked removal jurisdiction and ordered the matter remanded to the state court.

 In reaching this conclusion, the Court reviewed the general principles to be applied when determining whether a case presents a federal question for purposes of federal subject matter jurisdiction. The first issue to be considered is whether the "well-pleaded complaint" rule has been satisfied.

 Taylor v. Anderson, 234 U.S. 74, 75-76, 58 L. Ed. 1218, 34 S. Ct. 724 (1914) quoted in Franchise Tax Board, supra, at 103 S. Ct. 2846. Thus, the fact that a defendant may assert an affirmative defense based upon federal law is not a basis for a federal court to obtain jurisdiction. A federal right or immunity must be an essential element of the plaintiff's cause of action for the suit properly to be maintained in federal court. See Gully v. First National Bank, 299 U.S. 109, 112, 81 L. Ed. 70, 57 S. Ct. 96 (1936).

 When applying this principle, the courts have consistently held that "the party who brings a suit is master to decide what law he will rely upon." The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 57 L. Ed. 716, 33 S. Ct. 410 (1913). "Where plaintiff's claim involves both a federal ground and a state ground, the plaintiff is free to ignore the federal question and pitch his claim on the state ground." Salveson v. Western States Bankcard ...

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