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Adelphia Fire Protection, Inc. v. Egner

June 22, 2006

ADELPHIA FIRE PROTECTION, INC., PLAINTIFF
v.
NORMAN EGNER; AND LOCAL 669 - ROAD SPRINKLER FITTERS UNION, DEFENDANTS



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the Court for disposition is plaintiff Adelphia Fire Protection, Inc.'s (hereinafter "Adelphia") motion to remand the plaintiff's amended complaint. The motion is opposed by the defendant Norman Egner (hereinafter "Egner") and Local 669 - Road Sprinkler Fitters Union's (hereinafter "Local 669"). The matter has been fully briefed and is ripe for disposition.

Background*fn1

Adelphia is in the business of installating sprinkler systems in residential and commercial buildings in Lackawanna County, Pennsylvania. The President of Adelphia is Edward Zimmermann, Esq. Egner was formerly employed by Adelphia.

On or about February 16, 2005, Egner removed tools and equipment from various Adelphia job sites without the permission of Zimmermann. On February 16, 2005, Zimmermann terminated Egner for theft. On August 8, 2005, counsel for Adelphia sent a demand letter to counsel for Egner requesting return of the allegedly stolen property along with an inventory of the missing equipment. Following repeated demands, Egner returned the allegedly stolen property to Adelphia on October 15, 2005. Adelphia assesses the value of the allegedly stolen equipment at $87,110.00. Adelphia incurred additional expenses of $34,320.08 in replacement tools and overtime wages to keep the business on schedule.

In March 2005, between the time of the alleged thefts and the time of the demand letter, John Kantner, the business agent for Local 669, advised Zimmermann that he would arrange for the return of the missing tools and equipment in exchange for Adelphia's agreement to sign a new collective bargaining agreement. This alleged attempt to coerce and extort Zimmermann took place in Adelphia's office.

Adelphia charges Egner with the tort of conversion for the nearly eight months Egner was in unlawful possession of Adelphia's property. Plaintiff also charges Egner with trespass to chattel for Egner's substantial and intentional interference with chattel belonging to Adelphia. Plaintiff charges Local 669 with civil conspiracy for conspiring with Egner to deprive Adelphia of its property, and using Egner's theft for leverage in its labor negotiations with Adelphia.

Procedural History

Adelphia initiated the instant action against Egner on September 7, 2005, in the Court of Common Pleas of Lackawanna County. Adelphia filed an amended complaint on December 16, 2005, adding a charge of civil conspiracy against Local 669 for Kantner's alleged conspiracy to coerce and extort Adelphia regarding labor negotiations, in addition to the conversion and trespass to chattels counts against Egner. "C. Young" of Local 669 received the amended complaint against Local 669 on December 22, 2005.

On January 24, 2006, Local 669 filed a notice of removal to this Court, by claiming that this conflict is a dispute between an employer and a union regarding collective bargaining, and therefore, is governed by federal law, specifically the National Labor Relations Act.

On February 23, 2006, Adelphia filed a motion to remand the complaint back to the Court of Common Pleas of Lackawanna County, Pennsylvania. Adelphia requested remand because Local 669's notice of removal was filed thirty-one (31) days after the service of the complaint, admittedly outside of the thirty (30) day time limit for removal. Adelphia also points to the fact that its amended complaint does not contain any count or cause of action under the National Labor Relations Act, or any other federal statute, and therefore, does not raise a federal question. For the following reasons, the motion to remand will be granted.

Standard of Review

The law provides that a defendant desiring to remove a civil action from a state court to a United States District Court may file a "notice of removal." 28 U.S.C. § 1446. The notice of removal must be filed within thirty (30) days after receipt by the defendant of a copy of the initial pleading setting forth the claim for relief upon which the action is based. Id.

The burden of establishing jurisdiction in the removal situation rests with the defendant. Meritcare Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 222 (3d Cir. 1999). Removal statutes are to be strictly construed against removal, and all doubts should be resolved in favor of ...


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