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CAHALL v. WESTINGHOUSE ELEC. CORP.

September 23, 1986

Milton W. Cahall and Olga Cahall, his wife
v.
Westinghouse Electric Corp.



The opinion of the court was delivered by: WEINER

Weiner, J.

 This action was initially commenced in the Court of Common Pleas of Delaware County, Pennsylvania, then removed by defendant to this court. Presently before the court is the motion of plaintiffs to remand to the state court. Assuming that the court finds this case was removed improvidently and without jurisdiction, plaintiffs request the court to assess costs against defendant pursuant to 28 U.S.C. § 1447(c). For the reasons which follow, the motion to remand is denied and the request for an award of costs is denied.

 On October 31, 1984, defendant discharged plaintiff Milton Cahall ("Cahall") after he had been employed with defendant for over thirty years. In response to Cahall's discharge, plaintiffs filed a complaint in the Court of Common Pleas of Delaware County, Pennsylvania which contained eight counts, all of which plaintiffs allege arise under state law. Specifically, Count I charges defendant with age discrimination in violation of Pa.Stat.Ann.tit. 43, § 955 (Purdon 1985), Count II charges defendant with wrongful discharge in violation of the public policy of the Commonwealth of Pennsylvania and Count III charges defendant with intentional infliction of emotional distress. Counts IV through VII charge defendant with various other types of wrongful discharge including "tortious violation of duty of good faith and fair dealing" (Count IV), "breach of reduction in force agreement" (Count V), "breach of employee security and protection plan" (Count VI) and "breach of implied covenant of good faith and fair dealing" (Count VII). Plaintiff Olga M. Cahall has added Count VIII for loss of consortium.

 In its petition for removal defendant asserts that the complaint can be removed to federal district court under the provisions of 28 U.S.C. § 1441 because the claims for wrongful discharge set forth in Counts II and VI of the complaint are actually claims arising under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. and have, in fact, been preempted by provisions of ERISA.

 Plaintiffs respond that Counts II and VI are not claims which arise under ERISA, but actually arise under the common law of the Commonwealth of Pennsylvania and, as such, do not confer original jurisdiction on this court.

 Before we begin our legal analysis, it is necessary to examine in more detail the specific allegations set forth in Counts II and VI of the complaint. In Count II, plaintiffs allege that defendant discharged Cahall only 29 months before he was eligible to receive certain pension and fringe benefits. Complaint at paragraph 47. They allege that defendant's termination of Cahall was willful and based on his age, for the purpose of depriving Cahall of his full pension benefits and to reduce defendant's obligations under the pension plan in effect since Cahall was approaching retirement age. Complaint at paragraph 50. Plaintiffs further allege that "there is a strong public policy in the Commonwealth of Pennsylvania favoring the protection and integrity of Pension Plans and employees rights and interests in said pension plans." Complaint at paragraph 52. Finally, plaintiffs allege that "Pennsylvania Law is not contrary to ERISA, one of the purposes of which is to 'protect interstate commerce and the interests of participants of Employee Benefit Plans and their beneficiaries'" and that "enactment of ERISA evidences the great significance income security has to millions of the country's retired population in general, and to the Pennsylvania retired population in particular." Complaint at paragraphs 53 and 54.

 In Count VI of the complaint, plaintiffs allege that at the time Cahall was discharged, an "Employee Security and Protection Plan" was in effect and governed Cahall's status as an employee of defendant. Complaint at paragraph 100. Defendant's "Employee Security and Protection Plan" provides a number of benefits to eligible employees who are laid off due to a Location Closedown or during a Job Movement or Product-Line Relocation. Complaint at paragraph 105. Cahall alleges that he was laid off due to a planned Location Closedown and/or Job Movement or Product-Line Relocation. Complaint at paragraph 106. Plaintiffs allege that defendant "failed to follow the procedures set forth in the Employee Security and Protection Plan with regard to Location Closedown or Job Movement or Product-Line Relocation when wrongfully terminating Cahall's employment" and by doing so "failed to provide Cahall the opportunity to choose from the various benefits set forth in the Employee Security and Protection Plan when he was laid off due to a Location Closedown or during a Job Movement or Product-Line Relocation . . . ." Complaint at paragraphs 108, 109.

 We begin our analysis by noting that it is axiomatic that a case arises under federal law only if a federal question appears on the face of the plaintiff's well-pleaded complaint unaided by the answer or petition for removal. See, e.g., Gully v. First National Bank, 299 U.S. 109, 81 L. Ed. 70, 57 S. Ct. 96 (1936); Westmoreland Hospital Ass'n v. Blue Cross of Western Pennsylvania, 605 F.2d 119, 122 (3rd Cir. 1979), cert. denied, 444 U.S. 1077, 62 L. Ed. 2d 759, 100 S. Ct. 1025 (1980). Since removal jurisdiction exists only if jurisdiction would originally have been proper in federal court, the "well-pleaded complaint" rule applies to removal cases as well. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983); Hunter v. United Van Lines, 746 F.2d 635, 639 (9th Cir. 1984).

 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 and Specialty Co., 228 U.S. 22, 25, 57 L. Ed. 716, 33 S. Ct. 410 (1913). Moreover, "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 Ass'n, 731 F.2d 1423, 1427 (9th Cir. 1984) (quoting 1A Moore's Federal Practice P 0.160 at 185 (2d ed. 1979)). "Great weight is therefore given to plaintiff's chosen forum, and any legitimate doubts as to the existence of federal jurisdiction must be resolved against removal and in favor of remand." Stokes v. Bechtel North American Power Corp., 614 F. Supp. 732, 736 (N.D. Cal. 1985).

 Applying these principles to the case sub judice, there does not appear to be a basis for federal jurisdiction since the claims asserted in Counts II and VI of the complaint do not explicitly rely upon ERISA or any other federal statute. Plaintiffs' claims are grounded solely upon the common law of the Commonwealth of Pennsylvania. Thus, the present cause of action appears to be governed by state law and the defendant concededly could not have removed the present action to this court on the basis of the literal recitals of plaintiff's complaint.

 However, an independent corollary of the well-pleaded complaint rule is the "artful pleading" doctrine which provides that a plaintiff may not defeat removal by omitting to plead necessary federal questions in a complaint. Franchise Tax Board, 463 U.S. at 22. The "artful pleading" doctrine is a form of judicial construction wherein the court examines the underlying nature of a complaint when the plaintiff has improperly attempted to defeat removal by pleading what in actuality is a federal cause of action, albeit disguised as a state claim. Kilmer v. Central Counties Bank, 623 F. Supp. 994, 998 (W.D. Pa. 1985). Under "artful pleading," instead of simply accepting the literal recitals of a plaintiff's complaint - which would result in a remand by the federal court for lack of subject matter jurisdiction when the claim arises under state law - the district court (a) recharacterizes plaintiff's state law claims as federal claims, (b) exercises jurisdiction over them, and (c) proceeds to consider whether the plaintiff should prevail under federal law. Hunter v. United Van Lines, 746 F.2d 635, 641 (9th Cir. 1984).

 The artful pleading doctrine has most frequently been applied to cases which fall within the purview of § 301 of the Labor Management Relations Act ("LMRA"). For instance, in Avco Corp. v. Aero Lodge No. 735, Int'l Ass'n of Machinists, 390 U.S. 557, 20 L. Ed. 2d 126, 88 S. Ct. 1235 (1968), the plaintiff brought suit in state court for breach of contract alleging that the respondent union violated the applicable collective bargaining agreement by participating in and sanctioning work stoppages. Such claims are governed by § 301 of the Labor Management Relations Act. Both the United States Court of Appeals for the Sixth Circuit and the Supreme Court found "that the petitioner's action 'arose under' § 301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy available only under state law."

 However, the Supreme Court in Franchise Tax Board, supra, stated that the artful pleading doctrine is not limited to labor law disputes. Relying on the principles articulated in Avco, supra, Justice Brennan, speaking for a unanimous court, stated:


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