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March 31, 1997

ALLAN MICHAEL RUSS, BEA SMITH and ANN HALL, individually and on behalf of all others similarly situated

The opinion of the court was delivered by: POLLAK

 Pollak, J.

 March 31, 1997

 Plaintiffs have moved that this class action case be remanded to the Philadelphia County Court of Common Pleas, pursuant to 28 U.S.C. § 1447. They state that, although the parties are diverse, the amount in controversy for each plaintiff is less than $ 50,000 and that therefore this court lacks subject matter jurisdiction. Defendants State Farm Mutual Automobile Insurance Company ("State Farm") and American International Insurance Company ("AIIC") oppose the plaintiffs' motion; defendant Aetna Casualty and Surety Company ("Aetna") joins in these defendants' opposition. *fn1"

 As stated in the complaint, the individual plaintiffs seek to become representatives of a class of persons

who were insured by the defendants as part of the 'Assigned Risk' auto insurance plan mandated under state law, and were thereafter assigned the "Limited Tort Option" by the defendant insurance companies and their agents, without having all the statutorily mandated information prior to signing the election forms used by the defendants. The election form used by these defendants failed to give the annual premium price for each option choice, i.e. the "full" tort option and the "limited" tort option information which is mandated in the [Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. C.S. § 1705 et. seq. ]. Without this required information, the defendants failed to afford the individual plaintiffs and members of the Class an opportunity to make a knowing and voluntary waiver of the "full tort" option, which if elected, gives an insured and the members of his/her household covered by the policy, an unrestricted right to seek financial compensation for non-economic damages resulting from an automobile accident.

 The defendant insurance companies assert that this court has jurisdiction on the basis of diversity of citizenship. Plaintiffs each reside in Pennsylvania, while State Farm is incorporated and headquartered in Illinois, Aetna is incorporated and headquartered in Connecticut, and AIIC is incorporated and headquartered in New York. The question, then, is whether the diversity jurisdiction statute's $ 50,000 amount in controversy requirement has been met. See 28 U.S.C. § 1332.

 On a motion to remand, the burden is on the defendants to establish federal court jurisdiction. See Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). The court must decide the amount in controversy from the complaint itself. See Angus v. Shiley, Inc., 989 F.2d 142, 145 (3d Cir. 1993). The task in this case is complicated by the complaint's lack of specificity. Indeed, Pennsylvania's rules of civil procedure prohibit plaintiffs from demanding a specific sum. See Penn. R. Civ. P. 1021. Nonetheless, the Third Circuit has instructed that, in a case removed to federal court, "the amount in controversy is . . . measured . . . by a reasonable reading of the value of the rights being litigated." Angus, 989 F.2d at 146. I will therefore proceed to assess the value of the rights claimed by plaintiffs in this case.

 Plaintiff's counsel asserts that even were any of the plaintiffs to recover the premiums they have paid, their full medical expenses from their accidents, and treble damages, their recovery would still not exceed $ 50,000. Defendants respond that the amount in controversy is met by the plaintiff's claims for punitive damages and attorney's fees. See Bell v. Preferred Life Assurance Society, 320 U.S. 238, 88 L. Ed. 15, 64 S. Ct. 5 (1943) (punitive damages includable in amount in controversy); Missouri State Life Insurance Company v. Jones, 290 U.S. 199, 78 L. Ed. 267, 54 S. Ct. 133 (1933) (same for attorney's fees authorized by law).

 I conclude that the amount in controversy regarding plaintiff Allan Russ's claim exceeds $ 50,000. According to the complaint, Russ was involved in a motor vehicle accident and defendant State Farm failed to recognize and honor his claim for non-economic damages; State Farm asserted that these damages were limited by Russ's election of the limited tort option. Complaint P 30. Plaintiffs' motion for remand states that as a result of his auto accident, Mr. Russ sustained personal injuries with medical bills, or "specials," totalling $ 8.040.00. See Pls.' Memo of Law at 8; Pl.'s Reply Memo of Law at 5 n.3. Plaintiffs also add, however, that "because plaintiffs' claims for personal injury are so low, the total monetary value of any claim plaintiffs would ultimately submit to defendants for compensatory damages for the loss of the right to recover in full tort is likewise minimal." Pls.' Memo of Law at 8.

 The same is not true of the other plaintiffs, both named and unnamed. Plaintiffs Bea Smith and Ann Hall were involved in motor vehicle accidents, but "did not pursue [their] rightful remedies" under their insurance policies. Complaint PP 31, 32. This assertion is too vague to allow me to conclude that these plaintiffs have lost a valuable claim for pain and suffering stemming from their accidents. These plaintiffs -- as well as the purported class members who were never involved in any accident -- appear to have sustained damages involving no more than the denial of their opportunity to make an informed choice; such damages would likely be small in the absence of evidence of lost claims. Moreover, some class members presumably would have chosen the limited tort option even had they been given the full information the plaintiffs allege was not provided them; these plaintiffs' damages would indeed be minimal. Even adding punitive damages and attorney's fees to these various claims, I find that, for these plaintiffs, a "reasonable reading of the value of the rights being litigated" does not exceed $ 50,000.

 The foregoing establishes (1) that the complaint alleges, with respect to named plaintiff Russ, a claim pursuant to which recovery might be had for a sum in excess of $ 50,000, thereby satisfying the jurisdictional amount called for by 28 U.S.C. § 1332, but (2) that neither of the claims alleged on behalf of the two other named plaintiffs, nor any of the claims alleged on behalf of the unnamed putative class members, reaches the jurisdictional amount. The question then arises whether, in the exercise of the "supplemental jurisdiction" described in subsections (a), (b) and (c) of section 1367 of the Judicial Code, 28 U.S.C. § 1367(a), (b) and (c), *fn2" this court has subject matter jurisdiction of this proposed class action. If section 1367 is parsed literally, the answer would appear to be in the affirmative. But whether such a literal reading of section 1367 is appropriate is a question of some intricacy. In order to address that question fully, it will be useful first to canvass the principal cases antedating section 1367, and second to examine the text and legislative history of section 1367 itself.


 In 1939, in Clark v. Paul Gray Inc., 306 U.S. 583, 83 L. Ed. 1001, 59 S. Ct. 744 (1939), the Supreme Court had before it an appeal from a decree of a three-judge district court permanently enjoining enforcement of a California statute which imposed fees in the amount of $ 15 per automobile driven into California with a view to being sold in that state; the California regulatory scheme was found by the district court to be unconstitutional, offending both the commerce clause and the Fourteenth Amendment. The Supreme Court reversed. But, before reaching the merits, the Court sua sponte addressed the issue of the district court's subject matter jurisdiction: specifically, the Court pursued the question whether the claims of the plaintiffs -- "numerous individuals, copartnerships and corporations," id. at 587 -- exceeded $ 3,000 and thereby satisfied the then prevailing standard of jurisdictional amount. On the basis of the record before it, the Court, speaking through Justice Stone, concluded that the captioned lead plaintiff, Paul Gray, Inc., was the only plaintiff presenting a claim which by itself reached the jurisdictional threshold. With matters in this posture, the Court concluded that the scope of the district court's jurisdiction was controlled by the "familiar rule that when several plaintiffs assert separate and distinct demands in a single suit, the amount involved in each separate controversy must be of the requisite amount to be within the jurisdiction of the district court, and that those amounts cannot be added together to satisfy jurisdictional requirements." Id. at 589. This meant that the district court only had jurisdiction with respect to the claim of Paul Gray, Inc.

 Not long after the decision in Clark v. Paul Gray, Inc., the Second Circuit had occasion to consider whether, in the context of a diversity class action brought pursuant to Rule 23 of the Federal Rules of Civil Procedure (the original Rule 23 of the then new Rules), it was permissible to aggregate the class members' claims in order to reach the jurisdictional amount. The Second Circuit's answer, delivered by Judge Clark, joined by Judges Swan and Augustus Hand, was in the negative. Where a "class [can] be found only in the 'spurious' sense that a common question of law and fact [is] involved . . . aggregation is improper regardless of whether other members of the class purport to join in the original complaint or intervene to submit to the adjudication." Hackner v. Guaranty Trust Co. of New York, 117 F.2d 95, 98 (2d Cir. 1941). Six years later -- in 1947 -- the Second Circuit reaffirmed the conception of diversity class actions adopted in Hackner ; that decision -- said Judge Frank, joined by Judges Learned Hand and Augustus Hand -- "held that a proceeding under 23(a) (3) is, in effect, but a congeries of separate suits so that each claimant must, as to his own claim, meet the jurisdictional requirements." Steele v. Guaranty Trust Co. of New York, 164 F.2d 387, 388 (2d Cir. 1947).

 Following the 1966 reconstruction of Rule 23, the Supreme Court, in Snyder v. Harris, 394 U.S. 332, 22 L. Ed. 2d 319, 89 S. Ct. 1053 (1969), considered -- in the context of diversity class actions in which no named plaintiff's claim reached the jurisdictional amount -- whether the established non-aggregation rule still held. Speaking through Justice Black (over a dissent by Justice Fortas, joined by Justice Douglas), the Court ruled that abandonment of the non-aggregation rule in class actions would undercut the congressional "purpose . . . to check, to some degree, the rising caseload of the federal courts." Id. 394 U.S. 332 at 339-40. The Court went on to say:

The expansion of the federal caseload could be most noticeable in class actions brought on the basis of diversity of citizenship. Under current doctrine, if one member of a class is of diverse citizenship from the class opponent, and no nondiverse members are named parties, the suit may be brought in federal court even though all other members of the class are citizens of the same State as the defendant and have nothing to fear from trying the lawsuit in the courts of their own State. See Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 65 L. Ed. 673, 41 S. Ct. 338 (1921). To allow aggregation of claims where only one member of the entire class is of diverse citizenship could transfer into the federal courts numerous local controversies involving exclusively questions of state law. In Healy v. Ratta, 292 U.S. 263, 78 L. Ed. 1248, 54 S. Ct. 700 (1934), this Court noted that by successively raising the jurisdictional amount, Congress had determined that cases involving lesser amounts should be left to be dealt with by the state courts and said:
"The policy of the statute calls for its strict construction. . . . Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined." 292 U.S. 263, 270, 54 S. Ct. 700, 78 L. Ed. 1248

 394 U.S. at 340.

 In 1973, in Zahn v. International Paper Co., 414 U.S. 291, 38 L. Ed. 2d 511, 94 S. Ct. 505 (1973), the Court again addressed the issue of establishing the requisite jurisdictional amount in a class action diversity case. In Zahn -- as was not true in Snyder v. Harris, but as is true in the case at bar -- one of the named plaintiffs had a claim which satisfied the jurisdictional amount. But this distinction was held by the Zahn Court to be non-dispositive. Speaking through Justice White (over a dissent by Justice Brennan, joined by Justices Douglas and Marshall), the Court held that the rule of Snyder v. Harris was controlling:

Snyder invoked the well-established rule that each of several plaintiffs asserting separate and distinct claims must satisfy the jurisdictional-amount requirement if his claim is to survive a motion to dismiss. This rule plainly mandates not only that there may be no aggregation and that the entire case must be dismissed where none of the plaintiffs claims more than $ 10,000 but also requires that any plaintiff without the jurisdictional amount must be dismissed from the case, even though others allege jurisdictionally sufficient claims.
This follows inescapably from the Court's heavy reliance on Clark v. Paul Gray, Inc., supra, where only one of several plaintiffs had a sufficiently large claim and all other plaintiffs were dismissed from the suit.

 Id. at 300.

 And the Court concluded:

It also seems to us that the application of the jurisdictional-amount requirement to class actions was so plainly etched in the federal courts prior to 1966 that had there been any thought of departing from these decisions and, in so doing, of calling into question the accepted approach to cases involving ordinary joinder of plaintiffs with separate and distinct claims, some express statement of that intention would surely have appeared, either in the amendments themselves or in the official commentaries. But we find not a trace to this effect. As the Court thought in Snyder v. Harris, the matter must rest there, absent further congressional action.

 Id. at 302.

 Without "further congressional action" overruling Zahn, a diversity class action complaint of the sort presented to this court by plaintiff Russ and co-plaintiffs Smith and Hall -- i.e., a complaint describing a class action in which one of the named plaintiffs is the only class member whose claim satisfies the jurisdictional amount -- would not present a case within the subject matter jurisdiction of a federal district court. The question presented to this court by the Russ/Smith/Hall complaint is whether section 1367 of the Judicial Code, enacted in 1990, is "further congressional action" that has effectively overruled Zahn. As will be shown below, section 1367, on its face, appears to have accomplished that result. But before I directly ...

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