The opinion of the court was delivered by: RAYMOND J. BRODERICK
Plaintiff John A. Denk, on his own behalf and as Administrator of the Estate of Rosemarie J. Denk, has filed a motion to remand this action to the Court of Common Pleas, Delaware County, on the ground that the Court lacks subject matter jurisdiction because his Complaint raises only state law claims. Defendants have filed responses in opposition to Plaintiffs' motion, contending that the Court has subject matter jurisdiction because Plaintiffs' state law claims are preempted by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., and were properly removed to federal court.
For the reasons set forth below, the Court will deny Plaintiffs' motion to remand this action to state court.
On June 15, 1994, Plaintiffs filed their original Complaint in the Court of Common Pleas, Delaware County. In this Complaint, Plaintiffs alleged that Decedent Rosemarie J. Denk was diagnosed with late stage breast cancer in December 1990, and that the cancer had metasticized to her bone marrow. Doctors treating Mrs. Denk recommended high-dose chemotherapy and a procedure known as autologous bone marrow rescue.
Mrs. Denk was a beneficiary under Defendant Boeing Helicopters Medical Plan ("BHMP"), a group health insurance plan provided to her husband, Plaintiff John Denk, an employee of Defendant Boeing and a participant in BHMP. Defendant Boeing Welfare Benefits Committee ("The Benefits Committee") is the Plan Administrator of BHMP, with additional administration performed by Defendants Independence Blue Cross ("IBC"), Pennsylvania Blue Shield ("PBS"), and King County Medical Blue Shield ("KCMBS").
Plaintiffs allege that when Mrs. Denk requested coverage for the chemotherapy and autologous bone marrow rescue, Defendants Boeing and BHMP denied coverage on the ground that the proposed treatment was "experimental or investigational." These decisions were allegedly appealed under various plan administrative procedures, where coverage was again denied by Defendants IBC, PBS, KCMBS, and the Benefits Committee. Plaintiffs assert that because of this lack of coverage, Mrs. Denk was unable to undergo the treatment recommended by her doctors and subsequently died on November 25, 1993. Plaintiffs also assert that Defendants now provide coverage for the treatment that was denied to Mrs. Denk.
Plaintiffs' original Complaint alleged claims based on the denial of benefits to Mrs. Denk under both federal and state law. Plaintiffs alleged claims under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., for the benefits denied to Mrs. Denk and for breach of fiduciary duty. Plaintiffs also alleged a variety of state law claims based on the denial of benefits to Mrs. Denk, including breach of contract, breach of duty of good faith and fair dealing, negligent performance of undertaking to render services, and insurer bad faith, as well as negligent and intentional infliction of emotional distress to both Mr. Denk and the decedent. Plaintiffs sought both compensatory and punitive damages.
After Defendants filed a notice of removal to this Court on June 6, 1994, the parties filed a joint stipulation providing that Plaintiffs may file an Amended Complaint and this stipulation was approved by the Court. In their Amended Complaint, Plaintiffs deleted all references to ERISA and allege that each of their sixteen counts state a cause of action under Pennsylvania law. Plaintiffs allege breach of contract, breach of duty of good faith and fair dealing, negligent performance of services, and negligent and intentional infliction of emotional distress to Mr. and Mrs. Denk. Plaintiffs also allege a conspiracy to defraud the decedent of her benefits, violations of the Pennsylvania Fair Trade and Business Act, and wrongful death and survival claims. Plaintiffs also allege claims of negligence against Defendants based on an agency theory, asserting that Defendants failed to use reasonable care in selecting the administrators and physicians involved in the Plan's denial of coverage decisions, as well as a malpractice claim based on a theory that the Plan administrators owed Plaintiffs a duty to render proper medical advice. Plaintiffs request both compensatory and punitive damages.
Plaintiffs now seek to remand this action to state court on the ground that they no longer assert any violations of federal law and do not seek to vindicate any interest protected by ERISA. Plaintiffs contend that they have brought a wrongful death and survival action in accordance with Pennsylvania law, and that the interests they seek to vindicate are based on Mrs. Denk's suffering and eventual death and Mr. Denk's suffering. It is Plaintiffs' position that their Complaint asserts only state law claims and that they do not seek to recover benefits or other relief provided in ERISA's civil enforcement provisions. It is their contention that Congress did not intend that such state law claims should be removable to federal court. Plaintiffs assert that the Court lacks subject matter jurisdiction and must remand this action to state court pursuant to 28 U.S.C. § 1447(c).
Defendants oppose Plaintiffs' motion to remand on the ground that Plaintiffs' claims are preempted by ERISA and are properly in federal court. Defendants assert that although Plaintiffs do not allege a federal question in their Amended Complaint, such an allegation is not necessary for removal pursuant to ...