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KINDNESS v. SPANG

May 19, 1987

MICHAEL KINDNESS, Plaintiff,
v.
DONALD J. SPANG and ROBERT A. YOHE, Defendant


Sylvia H. Rambo, United States District Judge.


The opinion of the court was delivered by: RAMBO

SYLVIA H. RAMBO, UNITED STATES DISTRICT JUDGE

 Procedural Background

 Pro se plaintiff Michael Kindness instituted this action in the Court of Common Pleas of Dauphin County, Pennsylvania on or about October 23, 1986. On November 14, 1986, defendants Donald J. Spang and Robert A. Yohe filed a petition for removal of the action to this court, together with a removal bond, pursuant to 28 U.S.C. §§ 1441 and 1446.

 On November 19, 1986, defendants filed their answer to plaintiff's complaint. On November 20, 1986, plaintiff filed a petition to remand, to which defendants responded on December 5, 1987.

 Factual Background

 Plaintiff is an employee of Bethlehem Steel Corporation (Bethlehem Steel), working at the Steelton plant in Steelton, Pennsylvania. Complaint at para. 1. Defendant Donald J. Spang is employed by Bethlehem Steel as a Superintendent of Labor Relation. Complaint at para. 2. Defendant Robert A. Yohe is employed by Bethlehem Steel as a Superintendent in the Control Department. Complaint at para. 2.

 The basis of the complaint against defendants is that they allegedly gave slanderous testimony against plaintiff during a hearing held at Bethlehem Steel-Steelton Plant on January 20, 1986. Complaint at para. 22. On January 20, 1986, an arbitration hearing was conducted at the Steelton Plant between Bethlehem Steel and the United Steelworkers of America, Local Union No. 1688 (Union), concerning Grievance No. 83-07198. Petition for Removal at para. 6. The grievance proceeding was held in accordance with the collective bargaining agreement in effect between Bethlehem Steel and the Union, which agreement governed the terms and conditions of plaintiff's employment. Petition for Removal at para. 7.

 The specific incident which forms the basis of the complaint involves the alleged assault between plaintiff and another Bethlehem Steel Employee on August 16, 1984. Complaint at para. 16. After the incident, as part of their duties as managers at Bethlehem Steel, defendants investigated the charge of an employee dispute. As a result of the investigation, plaintiff was suspended from work for thirty days. Plaintiff subsequently filed a grievance, which culminated in the January 20, 1986 hearing.

 At the hearing, defendants testified regarding their investigation and allegedly slandered the plaintiff. Plaintiff seeks damages for the harm allegedly caused to his reputation and for wages lost during the thirty day suspension which was the subject of the grievance filed by plaintiff in accordance with the collective bargaining agreement between Bethlehem Steel and the Union. Complaint at para. 26.

 Discussion

 The instant case presents some very difficult issues of removal jurisdiction and preemption. Initially the court must note the distinction between the original jurisdiction of the federal courts and the preemption of state substantive law by federal law. "The field of labor law generally points up the importance of distinguishing between (a) exclusive jurisdiction and (b) the supplanting of state substantive law by federal law. In situation (a), the removed suit must be dismissed because of the derivative nature of removal jurisdiction." 1A Moore's Federal Practice, para. 0.167(8)(2d Ed. 1987).

 "If the state court lacks jurisdiction of the subject matter or of the parties, the federal court acquires none, although it might in a like suit, originally brought there, have had jurisdiction." Lambert Run Coal Co. v. Baltimore & Ohio R.R., 258 U.S. 377, 382, 66 L. Ed. 671, 42 S. Ct. 349 (1922). Because plaintiff's complaint alleges the tort of defamation against defendants, which is a state cause of action, the court is not faced with such a problem here.

 In addressing removal jurisdiction Judge Cohill in the United States District Court for the Western District of Pennsylvania stated, "federal courts are courts of limited jurisdiction, the removal statute involved here, 28 U.S.C. § 1441, must be strictly construed, and the burden of establishing federal jurisdiction is upon the removing party." Kilmer v. Central Counties Bank, 623 F. Supp. 994, 996 ...


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