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SELVAGGI v. PRUDENTIAL PROP. & CAS. INS. CO.

January 3, 1995

MARIO SELVAGGI, Plaintiff,
v.
PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY and RICHARD DeVOGEL, Defendants.



The opinion of the court was delivered by: J. CURTIS JOYNER

 Joyner, J.

 January 3, 1995

 This memorandum and order will resolve two outstanding motions filed in this insurance fraud case. The first is Plaintiff Mario Selvaggi's motion to remand this matter to the Court of Common Pleas for Philadelphia County, Pennsylvania. The second motion, filed by Defendants Prudential Property and Casualty Insurance Company (Prudential) and Richard DeVogel, seeks the dismissal of complaint as to Mr. DeVogel pursuant to either Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 21. For the reasons that follow, Mr. Selvaggi's motion to remand will be denied, while the defendants' motion to dismiss will be granted.

 I. HISTORY OF THE CASE

 The facts giving rise to this action are in considerable dispute, but since the issue here is whether Mr. Selvaggi has stated a claim on which relief can be granted, this Court must take as true all of the factual allegations made in the complaint. ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994). Accordingly, on June 2, 1993, Prudential, an Indiana corporation with its principal place of business in New Jersey, issued a homeowner's insurance policy to Mr. Selvaggi, a citizen of Pennsylvania, covering his place of residence in South Philadelphia. Mr. DeVogel, also a Pennsylvania citizen, is an insurance agent who assisted Mr. Selvaggi in acquiring the insurance policy. The term of the policy was to run for a period of one year; however, on June 25, 1993, Prudential canceled the policy because Mr. DeVogel allowed the policy to lapse. Thus, there was a lapse in coverage between June 25 and July 19, 1993. By July 20, 1993, however, the policy had been reinstated and was fully valid.

 On July 26, 1993, a fire swept through Mr. Selvaggi's home, causing the death of his wife and injury to the plaintiff and his three children. The Philadelphia Fire Marshall conducted an investigation into the loss and determined that the fire had been caused by the malfunction of an electrical device. Prudential then conducted its own investigation and concluded that the fire had been intentionally set, either by Mr. Selvaggi or at his behest. As a result, Prudential refused to honor the policy, and informed Mr. Selvaggi of its decision on July 7, 1994.

 Mr. Selvaggi then filed a praecipe for writ of summons in the Court of Common Pleas for Philadelphia County on July 11, 1994, naming both Prudential and Mr. DeVogel as defendants. On August 30, 1994, the defendants responded by filing, pursuant to Pennsylvania Rule of Civil Procedure 1037(a), a praecipe to file a complaint. *fn1" On September 16, 1994, before the conclusion of the twenty day period, the defendants filed a petition for removal of the case to this Court. Finally, the defendants filed a praecipe for judgment of non pros on September 21, 1994. With this background in mind, we turn first to Mr. Selvaggi's motion to remand.

 II. DISCUSSION

 A. Motion to Remand

 In support of his motion, Mr. Selvaggi argues that the case should be remanded because the defendants failed to comply with the procedures for removal set forth at 28 U.S.C. § 1446. Although the substance of the argument is not entirely clear from Mr. Selvaggi's memorandum, it appears that the argument is two-pronged. First, Mr. Selvaggi contends that the petition for removal was filed after the expiration of the statutory period for such actions. Section 1446(b) provides as follows:

 
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based . . . .

 28 U.S.C.A. § 1446(b). Mr. Selvaggi contends that the thirty day period was triggered on July 11, 1994, when he filed a praecipe for a writ of summons in the Court of Common Pleas. Since the defendants did not file their petition for removal until September 16, 1994, the argument goes, the matter should be remanded because of the defendants' failure to comply with the removal procedures.

 Even if the filing of a praecipe for a writ of summons could be construed as "the initial pleading setting forth the claim of relief," triggering the thirty day period in which the defendants could have removed the case to this Court, it appears that Mr. Selvaggi's own inattention to proper procedure precludes him from raising this objection now. Pursuant to 28 U.S.C. § 1447(c), "[a] motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the notice of removal." Since the notice of removal was filed on September 16, Mr. Selvaggi's failure to file the motion to remand until December 1, 1994 ...


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