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June 17, 1993

LEONARD S. JACOB, M.D., PH.D. Plaintiff

The opinion of the court was delivered by: ROBRENO


 June 17th, 1993

 Defendant removed this case to this Court from the Philadelphia Court of Common Pleas. In his state court complaint, plaintiff had averred, in part, that defendant, plaintiff's former employer, improperly terminated certain health benefits which defendant was contractually obligated to provide to plaintiff. Defendant contends that the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., preempts plaintiff's contract claim and vests federal question jurisdiction on this Court. Plaintiff disagrees and wants the case remanded to state court.

 Consideration of these issues compels the Court into the labyrinthian world of ERISA preemption jurisprudence. For the reasons set forth below, the Court finds that ERISA does not completely preempt plaintiff's claim, so that the motion to remand will be granted.


 Plaintiff Leonard S. Jacob, M.D., Ph.D. ("Jacob") was employed by defendant SmithKline Beecham ("SmithKline") from 1980 to 1988. In the fall of 1988, SmithKline, in connection with corporate restructuring, decided to eliminate Jacob's position. On October 3, 1988, SmithKline and Jacob entered into a four page written agreement ("the Agreement"), which set forth the terms of Jacob's severance package. The Agreement included a provision relating to the post-termination continuation of Jacob's health insurance.

 On October 15, 1990, Jacob commenced an action against SmithKline in the Philadelphia Court of Common Pleas. Jacob's one count complaint alleged, in vague terms, that he either was or should have been offered a certain amount of shares in an employee incentive plan *fn2" but that SmithKline wrongfully denied him these shares or their value.

 Immediately after his termination, Jacob had obtained health insurance through SmithKline. Jacob became reemployed by another company in August of 1990, and obtained health insurance through his new employer, as well. SmithKline became aware of Jacob's reemployment in January of 1991, while the state court action involving the "Share Value Plan" was still pending. Jacob alleges herein that SmithKline, upon learning of Jacob's reemployment, wrongfully caused the termination of Jacob's access to the health insurance benefits Jacob was obtaining through SmithKline. SmithKline maintains that termination was permitted under the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), 29 U.S.C. §§ 1161-1168.

 On January 10, 1992, Jacob filed a motion for leave to amend his complaint in state court. The proposed amended complaint attached to the motion sought leave to add a second count based on SmithKline's termination of Jacob's health benefits. On February 1, 1992, SmithKline removed the action to this Court. *fn3" In its removal petition, SmithKline contended that Count II of the proposed amended complaint was preempted by ERISA, thereby creating federal question jurisdiction.

 This case was reassigned to my docket on September 11, 1992. On October 6, 1992, the Court held a status conference with counsel for the parties. At that time, both parties agreed that removal was timely and that Count II was preempted by ERISA. Since that time, Jacob changed his mind on the question of ERISA preemption. Jacob now seeks remand of this action, contending that this Court has no jurisdiction to hear this claim because Count II is not preempted by ERISA. *fn4"


 Under 28 U.S.C. § 1441, a defendant may remove any state court action over which the federal courts have "original jurisdiction." Generally, removal is proper only if plaintiff's claim establishes the basis for original jurisdiction. This long established rule, commonly referred to as the "well pleaded complaint" rule, precludes a defendant from removing a complaint grounded in state law if the only basis for federal jurisdiction is a defense arising out of federal law. Taylor v. Anderson, 234 U.S. 74, 75-6, 34 S. Ct. 724, 724, 58 L. Ed. 1218 (1914). The rule is grounded in federalism concerns, Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1395 (9th Cir. 1988), recognizing that a plaintiff, as "master of the complaint," can choose to avoid a federal forum by "exclusive reliance on state law." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987).

 The well pleaded complaint rule applies with full force even when the defense involved is one of federal preemption; i.e. federal courts are without jurisdiction to adjudicate a state law claim even if the defendant argues that the claim is preempted by federal law. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 14, 103 S. Ct. 2841, 2848, 77 L. Ed. 2d 420 (1983). Of course, the well pleaded complaint rule does not state that such a defense is barred. To the contrary, the well pleaded complaint rule allows for preemption determinations to be made by state courts, recognizing that state courts are perfectly competent to evaluate whether a ...

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