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Wujick v. Dale & Dale

filed: October 13, 1994.

PHYLLIS WUJICK AND JOSEPH MATISKA, APPELLEES
v.
DALE & DALE, INC., DALE & DALE DESIGN & DEVELOPMENT, INC., T/D/B/A DALE & DALE HOMES, ATLANTIC FINANCIAL A/K/A ATLANTIC FINANCIAL FEDERAL, ESTATE OF FINANCIAL FEDERAL R.T.C., DEFENDANTS, RESOLUTION TRUST CORP., IN ITS CAPACITY AS RECEIVER FOR ATLANTIC FINANCIAL FEDERAL, APPELLANT .



Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil No. 93-1939).

Before: Mansmann, Lewis and Seitz, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

SEITZ, Circuit Judge... .

One of the defendants, Resolution Trust Corporation, in its capacity as Receiver for Atlantic Financial Federal, appeals an order of the district court remanding this action to the Court of Common Pleas of Luzerne County, Pennsylvania. The issues before us are whether the district court had subject matter jurisdiction under 12 U.S.C. § 1441a(l) (Supp. V 1993), which grants both jurisdiction to the federal courts and removal power to RTC. This Court has jurisdiction under 12 U.S.C. § 1441a(l)(3)(C) (Supp. V 1993), which empowers RTC to "appeal any order of remand entered by a United States district court."

I. FACTS

On January 11, 1990, the Office of Thrift Supervision, Department of the Treasury of the United States, appointed the Resolution Trust Corporation (RTC) as Receiver for the defendant, Atlantic Financial Federal ("Old Atlantic"), a savings and loan association. After accepting the appointment, RTC created a new federal savings association, Atlantic Financial Savings, F.A. ("New Atlantic"), pursuant to 12 U.S.C. § 1821(d)(2)(A) (Supp. V 1993), to assume such assets of the failed institution as RTC-Receiver might deem appropriate. The Office of Thrift Supervision then appointed RTC as Conservator of New Atlantic. RTC-Receiver of Old Atlantic and New Atlantic executed a Purchase and Assumption Agreement, whereby New Atlantic purchased substantially all of the assets of Old Atlantic. Unsecured obligations to general creditors, however, remained with Old Atlantic.

Sometime prior to the takeover of Old Atlantic by Resolution Trust, the plaintiffs in this action had contracted with defendant Dale and Dale ("Dale & Dale") to build a home for them in Pennsylvania. Old Atlantic had financed the construction. Plaintiffs became dissatisfied with the construction and Old Atlantic's handling of the loan proceeds. Thereafter, the plaintiffs commenced this action in the Luzerne County Court of Common Pleas against Dale & Dale and, inter alia, RTC. They did so by filing a praecipe for a writ of Summons ("Writ") with that court on April 12, 1990.

On April 16, 1990, the Luzerne County sheriff served the Writ at Atlantic Financial offices in Wilkes-Barre, Pennsylvania. The Writ named RTC as a defendant.*fn1 On that date the Wilkes-Barre offices were owned and operated by RTC as Conservator for New Atlantic, not RTC as Receiver for Old Atlantic. The Writ was served without a complaint or any other indication of the subject-matter of the action. It merely recited that "the plaintiff(s) have commenced an action in law against you." The procedure was consistent with Pennsylvania practice.*fn2

Plaintiffs contend that on April 16, 1990, four days after they commenced the action in the Luzerne County court by filing the praecipe, they filed the statutorily required administrative claim with the RTC. They argue that RTC "ignored" the administrative claim. There is no documentary evidence of such a claim in the record. However, during oral argument, RTC's counsel stated that although it had no record of the claim, it conceded that the administrative claim was "constructively denied" because of RTC's inaction. Without understanding the logic of RTC's concession, we shall treat it as a judicial admission that plaintiffs filed such a claim. However, RTC did not concede that any such claim for administrative relief was timely filed.

No further pertinent action appears to have taken place until January 19, 1993, when the plaintiffs filed a complaint in the Luzerne County action. On March 23, 1993, it was served on RTC-Receiver in Norristown, Pennsylvania. RTC then removed the case to the United States District Court for the Eastern District of Pennsylvania on April 12, 1993. Based on 28 U.S.C. § 1447(c) (Supp. V 1993),*fn3 plaintiffs made a timely motion for remand to the state court which was granted. RTC now appeals that order which has been stayed.

II. SUBJECT MATTER JURISDICTION

The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA") confers original subject matter jurisdiction on United States district courts to hear cases involving RTC. 12 U.S.C. § 1441a(l)(1).*fn4 Section 1441a(l)(3) of the Act permits RTC to remove any suits, to which it is a party, to the district court within certain time frames.*fn5 In the present case, the district court concluded that RTC had not timely removed the state action. RTC argues that the state action was timely removed because 1) the April 16, 1990 service was improper and 2) a Writ is not a document which initiates the thirty-day removal provision.

Compliance with the procedures for removal, e.g. timeliness of removal, are procedural issues to be distinguished from subject matter jurisdiction in the district court. See Medlin v. Boeing Vertol Co., 620 F.2d 957, 960 (3d Cir. 1980); see also Spring Garden Assoc., L.P. v. Resolution Trust Corp., 26 F.3d 412, 415 (3d Cir. 1994); In re Digicon Marine, Inc., 966 F.2d 158, 160 (5th Cir 1992); Nolan v. Boeing Co., 919 F.2d 1058, 1063 n.6 (5th Cir. ...


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