The opinion of the court was delivered by: STEWART DALZELL
This action is yet another skirmish between the warring factions of the Tabas family.
On November 30, 1994, Harriette S. Tabas, widow of Charles L. Tabas, and others (collectively "Harriette") filed a "Petition . . . for a Citation to Show Cause why Daniel Tabas Should Not Be Removed as Managing Partner and a Receiver Appointed in his Stead, to Preserve and Manage Tabas Enterprises" (the "Petition") in the Pennsylvania Orphans' Court. The Petition alleges that Daniel M. Tabas ("Daniel") has engaged in, inter alia, "ongoing waste on a massive scale, dissipation of assets, [and] fraud and mismanagement of Tabas Enterprises." See Petition at 1. It asks the Orphans' Court to appoint a receiver who would take control of and manage Tabas Enterprises.
On December 22, 1994, Daniel filed a Notice of Removal to this Court. By Order dated January 10, 1995, we questioned our jurisdiction to proceed in this action, noting that the Petition does not appear to present a federal question, and that the adverse parties are not citizens of different states. We directed the parties to brief the issue of jurisdiction, and the parties have submitted excellent briefs to guide our judgment.
The sole question that this Memorandum addresses is whether Harriette may remove the Petition to federal court. We adhere to our earlier decision in Chase v. Auerbach, 115 S. Ct. 783, 130 L. Ed. 2d 676 (E.D. Pa. 1994), and conclude that no statute authorizes the Petition's removal. We will therefore remand the action to the Pennsylvania Orphans' Court pursuant to 28 U.S.C. § 1447(c).
Daniel advances four alternative arguments in support of removal. First, he argues that the language of the Petition incorporates the federal RICO action that the Third Circuit recently decided in banc, Tabas v. Tabas, 1995 U.S. App. LEXIS 2585, Nos. 92-1495 and 92-1529, slip op. at 3-13 (3d Cir. February 13, 1995) (in banc), and therefore that the Petition itself poses a federal question. Second, he contends that the supplemental jurisdiction statute, 28 U.S.C. § 1367, creates federal jurisdiction where there otherwise would be none. Third, he claims that the Petition is in fact an artfully pleaded federal claim. Daniel relies on the All Writs Act, 28 U.S.C. § 1651, as his final basis of jurisdiction. We shall consider these arguments in turn.
1. The Plain Language of the Petition
Daniel first argues that Harriette has "made a disputed question of federal law (RICO) a necessary element of the Petition." Daniel Tabas's Memorandum of Law in Support of Notice of Removal and Motion for Consolidation at 1-2. For support, Daniel points to language in the Petition that refers to the RICO action. For example, the Petition alleges "fraud, dishonesty, [and] violations of state and federal law", Daniel's Memorandum of Law at 2. The Petition also describes "the RICO case" and instructs that the conduct of Daniel as alleged in the federal action, "if true, clearly establishes Daniel Tabas' fraud against the Estate in connection with Tabas Enterprises", id.
In essence, Daniel argues that the Petition would force the Orphans' Court to decide the RICO claim (and, hence, that the Petition should be in federal court instead of state court). We reject this argument. The Supreme Court has instructed:
The presence or absence of federal-question jurisdiction is governed by the "well-pleaded complaint rule," which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987) (footnotes and citation omitted). The Petition only alleges that Daniel has engaged in fraud in the summer of 1994.
Fraud is an element, but only one element, of RICO, see Tabas, slip op. at 19, and without more cannot transform the Petition into a federal ...