demands actual and punitive damages for the alleged fraud committed during the settlement process. Plaintiff does not seek to set aside the agreement or reopen the prior case. Secondly, the court has not been asked to modify the agreement to reflect the alleged loss to plaintiff caused by fraud. The complaint manifests a willingness by plaintiff to keep the settlement proceeds of $169,620.18, while maintaining a new action for damages for fraud. Finally, the instant complaint states a tort cause of action for fraud, not a cause of action for breach of contract. The jurisdictional power described in Fox, supra, Rosso v. Foodsales, Inc., 500 F. Supp. 274 (E.D.Pa. 1980), and like decisions in this jurisdiction does not extend to extra-contractual disputes. While the court retains power to upset the settlement agreement on the basis of fraud, the court does not retain jurisdiction under Fox to entertain a new state cause of action for fraud. College Watercolor Group, Inc. v. William H. Newbauer, Inc., 468 Pa. 103, 360 A.2d 200 (1976).
(7) Further, we note that plaintiff has not petitioned to reopen the original case, but rather has filed a district civil action. The new complaint does not contain a statement of jurisdictional grounds. The parties are not diverse. Plaintiff has cited no federal law involved in the instant claim. The complaint states a cause of action for fraud; not an action arising under federal law.
(8) We shall dismiss the instant complaint under Fed.R. Civ.P. 12(h)(3). We note that our action does not deprive plaintiff of a state forum. Under 42 Pa.C.S.A. § 5103(b), a plaintiff who erroneously files an action in federal court, which the federal court dismisses for lack of jurisdiction, may be transferred by the plaintiff to the proper state court. See McLaughlin v. Arco Polymers, Inc., 721 F.2d 426 (3d Cir. 1983).
(9) The instant complaint was filed on April 16, 1985, and the complaint should be treated as having been filed on that date in state court.
A written order will follow.
DATED: January 31, 1986
ORDER OF COURT
AND NOW, this 31st day of January, 1986, IT IS ORDERED that the complaint be dismissed for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(h)(3).
IT IS FURTHER ORDERED that the complaint shall be and hereby is transferred to the Court of Common Pleas of Allegheny County, Pennsylvania, and filed effective April 16, 1985.
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