The opinion of the court was delivered by: Joyner, J.
On February 14, 1999, the McDonalds' filed suit against defendants Jude
Damian, M.D. ("Damian"), Damian, Olex & Pacropis, P.C., J. Brien Murphy,
M.D. ("Murphy"), Plastic & Reconstructive Surgery Associates, Ltd.,
SmithKline Beecham Clinical Laboratories, Herbert E. Auerbach, D.O.
("Auerbach"), Abington Memorial Hospital, Keystone Health Plan East
("Keystone"), Independence Blue Cross, and Pennsylvania Blue Shield. Anne
Marie is a subscriber to an employer sponsored employee benefit plan that
is serviced by Keystone. Anne Marie's primary care physician was Damian
who is a member of Damian, Olex & Pacropis, P.C.
In January 1997, Anne Marie sought treatment from Damian for a back
lesion. Damian referred Anne Marie to Murphy, a specialist in plastic and
reconstructive surgery, to have the lesion removed. The slides of the
lesion were routed to SmithKline Beecham Clinical Laboratories and
Abington Memorial Hospital for pathological review. A biopsy revealed to
Auerbach that the lesion was benign. No further follow up or treatment
In May 1998, Anne Marie noticed a lump under her arm that was later
diagnosed as malignant melanoma. Subsequently, an independent
pathological review of the January 1997 lesion slides was performed at the
University of Pennsylvania and revealed that the lesion was malignant.
Anne Marie is now receiving invasive and intensive treatment.
Upon removing the case, the defendants*fn1 assert that the McDonalds'
allegations arise under federal law because they in part seek damages
for quantity of benefits due under Anne Marie's employee benefit plan.
The McDonalds now move to remand asserting that the complaint does not
allege federal claims because it seeks damages for lack of quality in the
medical care Anne Marie received, not lack of benefits due under the
I. Motion to Remand Standard
For the purposes of determining removal jurisdiction, a district
court's assessment of whether the complaint raises a federal question is
generally governed by the well-pleaded complaint rule, which requires
that the court consider only allegations in the complaint, not matters
raised in defense by the defendant. Franchise Tax Bd. v. Construction
Laborers Vacation Trust, 463 U.S. 1, 9-12, 103 S.Ct. 2841, 2846-2847
(1983), see also Metropolitan Life Ins. v. Taylor, 481 U.S. 58, 63, 107
S.Ct. 1542, 1546 (1987).
In Metropolitan Life, the Supreme Court recognized one corollary to the
well-pleaded complaint rule, which provides that "Congress may so
completely preempt a particular area that any civil complaint raising
this select group of claims is necessarily federal in character."
Metropolitan Life, 481
U.S. at 63-64, 107 S.Ct. at 1546-1547, accord Franchise Tax Bd., 463
U.S. at 23, 103 S.Ct. at 2854. The Supreme Court has determined that
§ 502(a)(1)(B) of ERISA's civil enforcement provisions falls within
the complete preemption exception to the well-pleaded complaint rule.*fn2
Metropolitan Life, 481 U.S. at 64-65, 107 S.Ct. at 1546-1547.
Accordingly, the question at issue is whether removal to federal court is
proper because the McDonalds' claims fall within the complete preemption
ambit of § 502(a)(1)(B) ERISA.
In Joyce v. RJR Nabisco Holdings Corp., 126 F.3d 166 (3d Cir. 1997),
the U.S. Court of Appeals for the Third Circuit distinguished the
complete preemption doctrine (section 502(a)(1)(B) of ERISA) from
ordinary preemption (section 514(a) of ERISA). Joyce, 126 F.3d at 170.
The former doctrine is used for jurisdictional purposes where the latter
merely constitutes a defense to a state law claim.*fn3 Id. at 170.
Section 502(a)(1)(B) provides that a participant or beneficiary may
bring a civil action to recover benefits due him or her under the plan,
to enforce his or her rights under the plan, or to clarify his or her
rights to future benefits under the plan. 29 U.S.C. § 1132(a)(1)(B).
In Dukes v. U.S. Healthcare, 57 F.3d 350 (3d Cir. 1995), the U.S. Court
of Appeals for the Third Circuit determined that § 502(a)(1)(B)
preempts only state law claims that allege a lack of quantity in services
provided that membership in an ERISA plan entitles the participant to ...