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Schuylkill Township v. CitySwitch

July 13, 2009


The opinion of the court was delivered by: Schiller, J.


Cost of erecting a tower in Schuylkill Township? More than $150,000. Fair market value of that tower? Over $700,000. Value to Schuylkill Township of having its zoning ordinances enforced? Priceless. Or so it may seem. Valuing that interest is the issue currently before this Court.

Schuylkill Township ("the Township") and CitySwitch disagree over the proposed construction of a 195-foot wireless communications tower that CitySwitch wants to erect in the Township. The Township filed a complaint in the Chester County Court of Common Pleas against CitySwitch, LLC and Pennsylvania Lines, LLC seeking to enjoin further work on the tower. CitySwitch removed the case to this Court. Now before the Court is the Township's motion to remand. For the reasons that follow, the motion is granted.


Pennsylvania Lines owns approximately 2.5 acres of land located in the LI-Limited Industrial Zoning District in Schuylkill Township.*fn1 (Compl. ¶¶ 9, 11.) CitySwitch constructs and manages wireless communication towers for general commercial usage. (Id. ¶ 12.) More specifically, CitySwitch leases spaces to wireless carriers on existing or newly built railroad towers and promotes itself as a company which is able to locate towers for commercial non-railroad users in areas where private towers cannot be built. (Id. ¶¶ 13, 15.)

Plaintiff contends that KGI Wireless entered into a contract with CitySwitch to serve as its agent for location of non-railroad commercial users of tower space for 400 CitySwitch towers, including the tower that is the subject of this litigation. (Id. ¶ 17.) The Township alleges that CitySwitch "bases its business plan upon deception, coercion and a manipulation of the federal preemption granted to railroads through [federal law] which provides federal preemption and certain exemptions for railroads from local regulation." (Id. ¶ 19.) The Township thus believes that CitySwitch appears to work with and for established railroads but in reality circumvents local regulations for the benefit of its commercial wireless tower business. (Id. ¶¶ 18-19.)

In May of 2008, CitySwitch contacted the Township about a proposed installation of a 195-foot wireless communciations tower adjacent to a residential subdivision in Perkiomen Junction, which is located in Schuylkill Township. (Id. ¶¶ 24-26.) CitySwitch applied for a permit to erect the tower, but a letter from the Township's Code Enforcement Officer denied the application as incomplete; the letter also raised zoning and public safety issues. (Id. ¶¶ 25, 27-28.)

CitySwitch and Township representatives met on July 22, 2008, but the parties were unable to resolve their differences. (Id. ¶ 30.) Additionally, the Township claims that CitySwitch has refused to provide relevant information throughout the course of the process, including information regarding whether CitySwitch operates in the railroad industry. (Id. ¶¶ 30, 33, 38.) Nonetheless, CitySwitch reiterated its intention to lease unused space on both new and existing towers "to help subsidize the cost of construction of the Railroad's communication network." (Id. ¶ 34.) On or about August 27, 2008, CitySwitch filed a supplemental request for a building permit, which the Township denied. (Id. ¶ 35.) Despite the Township's contentions that the proposed tower will endanger local citizens as well as future land development in the area, CitySwitch expressed its intent to press forward with its plan to install the tower even in the absence of the necessary building permits. (Id. ¶¶ 36-37, 41, 43, 45.)

On October 22, 2008, Plaintiff filed its Complaint seeking equitable relief as well as court costs, counsel fees, expenses and disbursements. Count I is framed as a "Request for Enforcement of Zoning Ordinance Pursuant to MPC § 515.1" and seeks "an injunction or other equitable relief in the nature of an Order directing Defendants to cease and desist from installation or maintenance of a monopole of 195 feet as proposed by CitySwitch or directing removal of said tower." In addition, the Township "requests court costs, counsel fees, expenses and disbursements to the extent provided by law or rule of Court." Count II is titled: "Violation of Township Ordinances Concerning Building And Use And Occupancy." It seeks relief similar to that requested in Count I.

CitySwitch removed the case to this Court on December 5, 2008. On December 19, 2008, the Township filed a Motion to Remand. After CitySwitch responded, the Court denied the motion without prejudice while the parties attempted to mediate their dispute. In the meantime, despite this litigation, CitySwitch installed the tower on May 16, 2009. (Pl.'s Mem. of Law at 1.) Their settlement efforts failed and on May 21, 2009, Plaintiff filed a second motion to remand, asserting that this Court lacks diversity jurisdiction because the $75,000 amount in controversy is not met.


Under 28 U.S.C. § 1441(a), defendants in state court may remove "any civil action . . . of which the district courts of the United States have original jurisdiction . . . to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a) (2005). Federal courts possess diversity jurisdiction over all civil actions between citizens of different states if the amount in controversy exceeds $75,000, exclusive of interests and costs. 28 U.S.C. § 1332(a)(1). To determine whether the amount in controversy has been met, a court may consider the complaint, the notice of removal, and the submissions related to the plaintiff's motion to remand. Clark v. J.C. Penney Corp., Civ. A. No. 08-4083, 2009 WL 1564175, at *3 (D.N.J. June 1, 2009); Hayes v. Ohio Nat'l Fin. Servs. Inc., Civ. A. No. 08-3743, 2008 WL 3852241, at *3 (E.D. Pa. Aug. 19, 2008).

The burden of demonstrating the existence of federal jurisdiction rests with the party asserting jurisdiction, Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), and the defendant's right to remove is determined according to the plaintiff's pleading at the time of the petition for removal. Angus v. Shiley, 989 F.2d 142, 145 (3d Cir. 1993); see also Meritcare Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 217 (3d Cir. 1999) ("Even though actual damages may not be established until later in the litigation, the amount in controversy is measured as of the date of removal.").

In considering a motion to remand, "28 U.S.C. § 1441 is to be strictly construed against removal so that the Congressional intent to restrict federal diversity jurisdiction is honored." Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004) (internal citation omitted); see also Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985) ("Because lack of jurisdiction would make any decree in the case void and the continuation of the litigation in federal court futile, the removal statute should be strictly construed and all doubts should be resolved in favor of remand."). "This policy 'has always been rigorously enforced by the courts.'" Samuel-Bassett, 357 F.3d at 396 (quoting St. Paul Mercury Indem. Co. ...

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