The opinion of the court was delivered by: Judge Caputo
Presently before the Court is Magistrate Judge Malachy E. Mannion's Report and Recommendation ("R&R") of June 3, 2009 (Doc. 14) and Defendants' Objections to the Magistrate Judge's R&R (Doc. 15). Magistrate Judge Mannion recommended that Respondents' motion to remand this case to the Lackawanna County Court of Common Pleas (Doc. 4) be granted. Defendants enumerated two (2) objections in response to the Report and Recommendation (Objections, Doc. 15). Plaintiffs filed a Memorandum of Law in opposition to Petitioners' objections on June 26, 2009. (Doc. 18). Accordingly, the matter has been fully briefed by all parties and is ripe for disposition. As the Court finds that the plaintiffs complaint alleges a reasonable basis in fact or colorable ground supporting the claim against Defendant Pump Integration, and the possibility exists that the state court will find that the complaint states a cause of action against Defendant Pump Integration, the Court will deny Defendants' objections, and adopt Magistrate Judge Mannion's Report and Recommendation remanding the case to the Lackawanna County Court of Common Pleas.
On September 9, 2008, the plaintiffs filed a complaint in the Court of Common Pleas of Lackawanna County arising out of the actions of the defendants involving a July 2, 2005, work injury suffered by the plaintiff, Christopher Kane, ("Mr. Kane"). (Doc. No. 1, Ex. A, ¶ 40 ). The complaint advances the following causes of action against all defendants: (1) fraudulent misrepresentation/concealment; (2) intentional misrepresentation; (3) negligent misrepresentation; (4) breach of fiduciary duty; (5) breach of contract; (6) good faith and fair dealing; (7) intentional infliction of emotional distress; (8) negligent infliction of emotional distress; (9) violations of the Unfair Trade Practices and Consumer Protection Laws; (10) bad faith; (11) negligence in handling and direction of medical care and treatment of a person; and (12) loss of consortium. (Doc. No. 1, Ex. A).
In their complaint, the plaintiffs allege that Mr. Kane suffered an injury primarily to his left middle finger and left hand while acting within the scope of his employment on July 2, 2005. (Doc. No. 1, Ex. A, ¶ 40.) Later, Mr. Kane developed a left middle finger/hand wound infection, which required multiple surgeries. (Id. at ¶¶ 41-42).
In May 2006, Mr. Kane underwent a biopsy operation to examine sample tissue from his left middle finger and was diagnosed with squamous cell carcinoma impacting his left middle finger/hand requiring partial amputation. (Id. at ¶¶ 46-47). As a result, he was referred Dr. Greenwald, an oncologist, who advised that it was necessary to treat the squamous cell carcinoma condition aggressively. (Id. at ¶¶ 49-52). At this time, the plaintiffs allege that defendants were aware that Mr. Kane needed of oncologic treatment and did not have alternative private medical insurance coverage to pay for the treatment if Workers' Compensation refused payment. (Id. at ¶ 54).
On September 15, 2006, Dr. Greenwald authored a report which confirmed that the squamous cell carcinoma condition was related to the July 2, 2005, work injury and required immediate medical care and treatment and gave the report to the defendants. (Id. at ¶¶ 55-56). The defendants refused to acknowledge that Mr. Kane had suffered any work related injuries, including the squamous cell carcinoma condition, and refused to pay for medical care and treatment to be received by Mr. Kane. (Id. at ¶ 57). From July 20, 2006, through November 15, 2007, the defendants refused to recognize Mr. Kane's work injury and need for treatment and received repeated notice that, if left untreated, the plaintiff's condition would be aggravated and spread beyond the left middle finger and hand. (Id. at ¶¶ 59-71).
On November 15, 2007, the defendants received a Decision and Order from Workers' Compensation Judge Doneker that accepted Mr. Kane's work-related claim in its entirety and ordered imposition of penalties for an unreasonable contest. (Id. at ¶ 71 ). However, by the time the defendants were ordered to accept these facts, Mr. Kane's squamous cell carcinoma condition had become aggravated, spread and metastasized to his left elbow, left upper extremity, torso and internal organs. (Id. at ¶¶ 72-80). As a result of the aggravation of his condition, Mr. Kane was required to undergo an amputation of his left arm. (Id. at ¶ 79).
The plaintiffs allege that the aggravation of Mr. Kane's squamous cell carcinoma condition beyond his left middle finger and hand were directly attributable to the defendants' actions. (Id. at ¶ 82). Further, the plaintiffs allege that the defendants engaged in intentional actions before the work-related injury had been accepted that caused the aggravation of the condition which produced a more serious and dire medical condition that has spread throughout Mr. Kane's body. (Id. at ¶ 81). The plaintiffs allege that the defendants engaged in fraudulent misrepresentation and/or non-disclosures of material facts that were calculated to delay the receipt of medical care and treatment by Mr. Kane causing him to suffer an aggravation of his condition. (Id. at ¶ 82). The plaintiffs further allege that the defendants acted to concealed, altered or intentionally misrepresented information that served to aggravate Mr. Kane's condition prior to any Workers' Compensation adjudication when the defendants knew that such actions would produce an aggravation of the condition. (Id. at ¶¶ 84-89).
Plaintiffs' complaint alleges that all of the defendants had evidence from both treating providers and medical evaluators retained by the defendants that confirmed the work-related nature of the squamous cell carcinoma no later than May 22, 2007, yet they continued to refuse to acknowledge the work injury or pay for medical treatment. (Id. at ¶¶ 90-97).
On October 10, 2008, the defendants filed a notice of removal, arguing that this court has diversity jurisdiction over the complaint pursuant to 28 U.S.C. §1332, because the only non-diverse defendant, Pump Integration, Inc. ("Pump Integration"), was fraudulently joined to destroy diversity jurisdiction or, in the alternative, is a nominal party. (Doc. 1). The defendants argue that the Pennsylvania Workmen's Compensation Act, ("WCA"), is the sole and exclusive means of recovery against employers for all injuries arising out of accidents occurring within the course of employment. The defendants claim that the "[p]laintiffs have engaged in artful pleading and have brought a cause of action against a party with no reasonable prospect of liability in an attempt to avoid well-settled Pennsylvania law which provides employers with immunity from claims arising out of the alleged improper handling of its employee's workers' compensation claim." (Doc. 1). The defendants argue that the plaintiffs have no reasonable basis in fact or colorable ground under Pennsylvania law that support the claims against the Defendant Pump Integration, and that the citizenship of defendant Pump Integration should not be considered for diversity or removal purposes. (Doc. 1).
On November 4, 2008, the plaintiffs filed a motion to remand, (Doc. No. 4), a memorandum of law in support, (Doc. No. 5), and exhibits, (Doc. No. 6). A brief in opposition to the plaintiffs' motion was filed on behalf of the Hartford defendants on November 19, 2008, (Doc. No. 8), and the plaintiff filed a reply on November 26, 2008, (Doc. No. 15). On December 1, 2008, Defendant Pump Integration also filed a brief in opposition to the plaintiff's motion for remand, thereby joining the brief previously filed on behalf of the Hartford defendants. (Doc. No. 12). On December 2, 2008, the plaintiffs filed a reply brief in response to defendant Pump Integration's brief in opposition. (Doc. No. 13).
On June 3, 2009, Magistrate Judge Malachy E. Mannion issued a Report and Recommendation that Plaintiff's motion to remand the case to the Lackawanna County Court of Common Please be granted. (Doc. 14). Defendants filed their Objections to the Magistrate Judge's Report and Recommendation, (Doc. 15), with an accompanying Memorandum of Law, (Doc. 16), on June 22, 2009. In their objections, Defendants first argue that the Magistrate Judge failed to apply well-settled Pennsylvania Law which states with certainty that the WCA bars Plaintiffs' claims against Defendant Pump Integration. (Doc. No. 15 at ¶¶ 1-4.) Second, the Defendants argue that the Magistrate Judge erred in finding that the Plaintiff's claims fall within the exception to the WCA's exclusivity ...