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POLCHA v. AT&T NASSAU METALS CORP.

October 18, 1993

JOSEPH POLCHA, Plaintiff
v.
AT&T NASSAU METALS CORP., et al., Defendants



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 October 18, 1993

 BACKGROUND:

 This action, originally filed in the Court of Common Pleas of Luzerne County, Pennsylvania, was removed to this court by defendants AT&T Nassau Metals Corp. ("AT&T Nassau"), American Telephone & Telegraph Co. ("AT&T"), Joseph Chikowski and John Williams. Plaintiff alleges a cause of action against defendants for disposal of hazardous materials at a site in Foster Township, Luzerne County.

 Before the court is a motion filed by plaintiff to remand the case to the Court of Common Pleas. According to plaintiff, the court lacks original jurisdiction over the subject matter of the case, and so it was improperly removed. Plaintiff also has moved for sanctions for the allegedly improper removal.

 While plaintiff is correct that the case was improperly removed to this court and remand is appropriate, we do not agree that sanctions should be imposed. The motion to remand will be granted, and the case will be remanded to the Court of Common Pleas of Luzerne County. The motion for sanctions will be denied.

 DISCUSSION:

 1. Motion for Remand

 Removal of the instant case to this court is governed by 28 U.S.C. § 1441. Subsection (a) of that statute allows for the removal by the defendant(s) of any case over which the district court has original jurisdiction. Under subsection (b), such a case if removable if there is diversity of citizenship or for a claim or right "arising under the Constitution, treaties or laws of the United States. . ." This language tracks the language of 28 U.S.C. § 1331, which gives district courts "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."

 In the instant case, there is clearly no diversity, and so the case is removable only if at least one of plaintiff's claims "aris[es] under" federal law.

 Plaintiff's original complaint (two amended complaints were stricken by the court by order dated June 16, 1993) alleges six state, common-law causes of action: (1) negligence; (2) strict liability; (3) nuisance; (4) trespass; (5) intentional infliction of mental and emotional distress and injury; and (6) negligent infliction of mental and emotional distress and injury. However, even though state law creates a cause of action, a case might still "arise under" federal law if a well-pleaded complaint establishes that the right to relief requires resolution of a substantial question of federal law. Franchise Tax Bd. v. Construction Laborers Vacation Trust for Southern Calif., 463 U.S. 1, 13, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983). The question in the instant case, then, is whether plaintiff's complaint alleges a cause of action requiring resolution of a substantial question of federal law.

 The crux of defendants' argument for federal jurisdiction is that plaintiff's complaint alleges negligence per se, in that the claims of negligence include allegations that defendants violated provisions of federal environmental laws. See Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601 et seq.; Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.; Complaint PP 8, 10, 13, 14, 19, 24, 27, 39, 40, and 43. While defendants raise arguments based upon a number of cases, the controlling precedent appears to be Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 92 L. Ed. 2d 650, 106 S. Ct. 3229 (1986). In that case, as in the instant case, the primary issue was "whether the incorporation of a federal standard in a state-law private action, when Congress has intended that there not be a federal private action for violations of that federal standard, makes the action one 'arising under the Constitution, laws, or treaties of the United States, . . ." Id. at 805 (citation omitted).

 It should be emphasized that the Third Circuit Court of Appeals has held that, when a state law cause of action incorporates a federal statutory standard, a private federal remedy for a violation of the federal statute is a prerequisite for finding federal question jurisdiction. Smith v. Industrial Valley Title Insurance Co., 957 F.2d 90, 93 (3d Cir.), cert. denied sub nom. Com. Land Title Insurance Co. v. Burns, 120 L. Ed. 2d 903, 112 S. Ct. 3034 (1992). Therefore, defendants' other arguments for a finding of federal question jurisdiction will not be addressed at length.

 We turn first to defendants' contention that CERCLA and RCRA expressly provide for a private cause of action, so that there is clearly a substantial federal question. While these statutes certainly provide for private causes of action, those causes of action are limited to recovery of response costs under CERCLA and to enforce compliance under RCRA. See 42 U.S.C. §§ 9613(h), 9607(a); 42 U.S.C. § 6792(a). Therefore, there is no private cause of action under ...


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