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CANNON v. SHELLER

June 28, 1993

JOSEPH CANNON
v.
STEPHEN A. SHELLER, et al.



The opinion of the court was delivered by: BY THE COURT; HARVEY BARTLE, III

 Bartle, J.

 June 28, 1993

 This is an action under Pennsylvania's Wrongful Use of Civil Proceedings statute, 42 Pa. Cons. Stat. Ann. §§ 8351 et seq.

 Plaintiff Joseph Cannon ("Cannon") instituted this suit in the Court of Common Pleas of Philadelphia County, Pennsylvania. Defendants Stephen A. Sheller and Stanley and Barbara Mitnik ("Sheller, et al.") have removed it to this Court on the ground that it involves a federal question, under the "complete preemption" doctrine. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S. Ct. 1542, 95 L. Ed. 2d 55 (1987). The plaintiff has filed a motion to remand and defendants have filed a motion to dismiss.

 This suit had its genesis in an earlier action in this Court, captioned Stanley Mitnik, et al. v. Joseph F. Cannon, et al., 784 F. Supp. 1190 (E.D. Pa. 1992). In that case the trustees of an employee benefit fund sued Joseph Cannon, the plaintiff here, and others under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., as well as under several state common law claims. One of the defendants in that action, Frederic Shapiro, the attorney for the fund, had pleaded guilty in federal court to misappropriating certain monies belonging to the fund.

 The trustees, who had hired Cannon to render certain pension administrative services to the employee benefit plan in question, claimed in the prior action that Cannon had breached his fiduciary duty under ERISA. This Court granted Cannon's motion for summary judgment on the ERISA claim, dismissed the state law claims on the ground that they were preempted by the ERISA claim, and dismissed the trustees' claim under RICO on the ground that the trustees had failed to state a claim upon which relief could be granted. This Court, however, declined to impose sanctions under Rule 11 of the Federal Rules of Civil Procedure. *fn1" The Court of Appeals affirmed. See Mitnik on behalf of Bonnell Dress Co. v. Cannon, 784 F. Supp. 1190 (E.D. Pa. 1992), aff'd 989 F.2d 488 (3d Cir. 1993).

 After the earlier case ended in his favor, Cannon began this suit in the state court, claiming that the trustees and their counsel violated the Pennsylvania Wrongful Use of Civil Proceedings statute, 42 Pa. Cons. Stat. Ann. § 8351, by filing a frivolous suit in federal court. That statute provides in relevant part:

 
(a) ... A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings [if]:
 
(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
 
(2) The proceedings have terminated in favor of the person against whom they are brought.
 
(b) ... The arrest or seizure of the person or property of the plaintiff shall not be a necessary element for an action brought pursuant to this subchapter.

 42 Pa. Cons. Stat. Ann. § 8353 further provides that, where the essential elements of an action under § 8351 have been established, the plaintiff is entitled to recover for the following:

 
(1) The harm normally resulting from any arrest or imprisonment, or any dispossession or interference with the advantageous use of his land, chattels or other things, suffered ...

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