The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Presently before the Court is the "Reply to Defendants' Notice of Removal and Request to Remand this Action to the Court of Common Pleas of Philadelphia County Pursuant to 28 U.S.C. §1447(c)" ("Motion to Remand") filed by Plaintiffs Daniel and Jeane McCarrie ("Plaintiffs"). For the reasons set forth below, Plaintiffs' Motion will be granted.
On October 5, 2009, Plaintiffs initiated the instant matter by filing a Writ of Summons in the Court of Common Pleas of Philadelphia County, Pennsylvania. On January 6, 2010, Plaintiffs filed their Complaint, alleging, inter alia, that Daniel McCarrie sustained serious and permanent personal injuries as a result of contracting Legionnaires' disease in September or October of 2006 while working at the Peach Bottom Nuclear/Atomic Plant in York, Pennsylvania. (Notice of Removal, Ex. C ¶¶ 47, 84.)
Plaintiffs are citizens of Pennsylvania. (Id. ¶ 1.) The named Defendants and their respective states of citizenship, as alleged in the Complaint, are as follows: (1) GCA Services Group, Inc. ("GCA") -- Ohio (id. ¶ 2); (2) Sunstates Maintenance Corporation (a subsidiary of GCA) ("Sunstates") -- Ohio (id. ¶ 3-4); (3) Exelon Corporation a/k/a and/or d/b/a Exelon Generation a/k/a and/or d/b/a Exelon Nuclear ("Exelon Corporation") -- Pennsylvania (id. ¶ 5); (4) Exelon Generation a/k/a and/or d/b/a Exelon Generation Company, LLC (a subsidiary of Exelon Corporation) ("Exelon Generation") -- Pennsylvania (id. ¶ 6-7); (5) Public Service Enterprise Group Incorporated ("PSEG Inc.") -- New Jersey (id. ¶ 8); (6) Public Service Electric and Gas Co. a/k/a and/or d/b/a Public Service Electric and Gas of New Jersey a/k/a and/or d/b/a Public Service Electric and Gas of New Jersey Nuclear a/k/a and/or d/b/a Public Service Electric and Gas of New Jersey Nuclear, LLC (a subsidiary of PSEG Inc.) ("PSE&G Co.") -- New Jersey (id. ¶ 9, 11); and (7) PSEG Power, LLC a/k/a and/or d/b/a Public Service Electric and Gas of New Jersey a/k/a and/or d/b/a Public Service Electric and Gas of New Jersey Nuclear a/k/a and/or d/b/a Public Service Electric and Gas of New Jersey Nuclear, LLC (a subsidiary of PSEG Inc.) ("PSEG Power, LLC") -- New Jersey (id. ¶ 10, 12).*fn1 Thus, according to Plaintiffs' Complaint, Plaintiffs, Exelon Corporation and Exelon Generation (collectively, the "Exelon Defendants") are all citizens of Pennsylvania.
In the Certificate of Service attached to Plaintiffs' Complaint, counsel for Plaintiffs states that a copy of the Complaint was "delivered via email and/or first class and/or certified mail receipt requested on January 6, 2010" to PSEG Inc., PSE&G Co., PSEG Power, LLC, Sunstates, counsel for GCA and counsel for Exelon Defendants.*fn2 (Id. at 28-29.)
On February 5, 2010, Defendants GCA and Sunstates filed their Notice of Removal, alleging that "at the time of Plaintiff, Daniel McCarrie's alleged contraction of Legionnaires' disease, he was employed by Exelon, and, accordingly, Plaintiffs' claims against Exelon are barred by the Pennsylvania Workers' Compensation Act, 77 P.S. §§ 1, et seq." (Notice of Removal ¶ 10 (emphasis omitted).) GCA and Sunstates further assert that "[a]t the January 6, 2010 Case Management Conference for the instant matter, Plaintiffs' demand for settlement was $400,000.00." (Id. ¶ 14.) Therefore, GCA and Sunstates argue that "[t]he instant action satisfies diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332 insofar as all of the non-employer (i.e. Excelon [sic]) parties to this matter were of diverse citizenship at all times material hereto and the amount in controversy is in excess of $75,000.00." (Id. ¶ 15.)
On March 4, 2010, Plaintiffs filed their Motion to Remand. In their Motion, Plaintiffs allege that their "claims against Exelon are not barred by the Pennsylvania Workers' Compensation Act, 77 P.S. §§ 1, et seq., as no proof has been submitted to show that Mr. McCarrie was an employee of any of the named Exelon Defendants at the time of the alleged incident." (Motion to Remand at unnumbered page 3 (emphasis omitted).) However, neither Plaintiffs' Complaint nor their Motion to Remand contains an allegation either that Daniel McCarrie was not an employee of the Exelon Defendants or that he does not know who his employer was at the time of his alleged injury.
On March 18, 2010, GCA and Sunstates filed their Response in Opposition to Plaintiffs' Motion to Remand, asserting that "Plaintiffs do not argue that Mr. McCarrie was not employed by any of the Exelon Defendants, despite th[e] fact that Plaintiffs undoubtedly possess knowledge of whether Mr. McCarrie was employed by the Exelon Defendants at the time of the accident." (Resp. Opp. Motion to Remand at 2 (emphasis omitted).) GCA and Sunstates point out that Exhibit A to Plaintiffs' Motion to Remand is a letter from Plaintiffs' counsel dated June 25, 2009 which states: "I represent Exelon employee Daniel J. McCarrie . . . ." (Motion to Remand, Ex. A at 1.) GCA and Sunstates also note that Exhibit B to Plaintiffs' Motion to Remand is an email dated November 12, 2009 in which counsel for the Exelon Defendants states: "Based on a review of the file materials, it appears to me that [Daniel] McCarrie is [the Exelon Defendants'] employee." (Id., Ex. B at 1.)
On March 19, 2010, Plaintiffs filed a Reply to the Response filed by GCA and Sunstates. In their Reply, Plaintiffs argue for the first time that "[p]ursuant to the rule of unanimity, this matter should be remanded . . . . Particularly, the failure of all defendants to join in and/or consent to the Notice of Removal filed by defendants, GCA Services Group, Inc. and Sunstates Maintenance Corporation, creates a procedural defect and automatic remand." (Reply to Resp. at 1-2.) Plaintiffs also assert that while the answer to the question of whether the Exelon Defendants have been fraudulently joined "will not defeat the absence of unanimity required for removal," joinder of the Exelon Defendants in the instant action is not fraudulent. (Id. at 4.) To support their argument, Plaintiffs claim that "there are fifty-four (54) Exelon entities registered as corporations within the State of Pennsylvania" and that as a result, "it is impossible to determine [Daniel McCarrie's] employer." Plaintiffs further argue:
Without receipt of any type of verified answers to Plaintiffs' pleadings from the Exelon defendants, . . . counsel for Plaintiffs cannot truly understand who Mr. McCarrie's employer was at the time of his injury. . . . Based on the fact that this proof has not been produced, one can only assume that the Exelon defendants have not done so (or joined into the subject Notice of Removal) because they are, in fact, not Mr. McCarrie's employer. Moreover, even if Exelon Generation Company was Mr. McCarrie's employer on the date [of] the subject incident, Plaintiffs have filed suit against "Exelon Corporation a/k/a and/or d/b/a Exelon Generation a/k/a and/or d/b/a Exelon Nuclear," whose place of business is also located in Philadelphia, Pennsylvania. Finally, the legal analysis for who is deemed an employee. . . is rather complex. . . . In addition, Pennsylvania case law does not agree that the mere payment of worker's compensation benefits guarantees the payor of same immunity under Pennsylvania's the [sic] Worker's Compensation Act. (Id. at 4-5 (emphasis omitted).)
On March 30, 2010, GCA and Sunstates filed a Sur-Reply to Plaintiffs' Reply. In their Sur-Reply, GCA and Sunstates argue that all Defendants have in fact consented to their Notice of Removal. (Sur-Reply at 2.) GCA and Sunstates further state that counsel for the Exelon Defendants advised them that he intended to file a Motion for Summary Judgment and accompanying affidavits stating: (1) that Daniel McCarrie was employed by Exelon Generation at the time of his alleged injury, and thus, his claims against Exelon Generation are barred by Pennsylvania's Workers' Compensation Act; and (2) that Exelon Corporation "is merely a holding company, and, accordingly, could not have acted so as to cause Plaintiffs' alleged injuries and damages." (Id. at 2-3.)
Also on March 30, 2010, we entered an Order affording the parties ten days to "provide the Court with affidavits or deposition testimony that address the issues contained in the Notice of Removal (Doc. No. 1), and the Response and Replies thereto." (March 30, 2010 Order at 1.)
On April 1, 2010, the Exelon Defendants filed their Motion for Summary Judgment. In their Motion, the Exelon Defendants allege: (1) that Daniel McCarrie was an hourly employee of Exelon, and thus, his claims are barred by Pennsylvania's Workers' Compensation Act; and (2) that the loss of ...