MEMORANDUM RE: PLAINTIFF’S MOTION TO REMAND
Michael M. Baylson, U.S.D.J.
For the second time in this case, Defendant Nationwide Insurance Company has filed a notice of removal, (ECF No. 1), and Plaintiff Inez Coates has filed a Motion to Remand (ECF No. 4). As discussed below, Defendant bases its second removal attempt on grounds that were considered and rejected in the Court’s previous remand order. Since Defendant fails to identify developments that would alter the Court’s prior conclusion, the Court will GRANT Plaintiff’s Motion to Remand.
I.Factual & Procedural Background
A. The Complaint
On June 15, 2012, Plaintiff initiated this action in the Court of Common Pleas of Philadelphia County. In her Complaint, Plaintiff alleges that she was involved in a car accident on March 9, 2009, in which David Tomarchio, a non-party to this action, hit her car, causing it to turn over and skid upside down for twenty-feet. Compl. ¶¶ 4–10. Plaintiff, who avers she was in no way responsible for the collision, had to be removed from her vehicle with the “jaws of life.” Id. ¶¶ 10–11. Plaintiff suffered severe and permanent injuries and disabilities, which she details at length in her Complaint, and underwent five surgical procedures. Id. ¶¶ 12–17. Mr. Tomarchio's insurance policy provided only $100, 000 in coverage, which Plaintiff’s expenses exceeded. Id. ¶¶ 20–21. Plaintiff has motor vehicle insurance provided by Nationwide, which included underinsured motorist (“UIM”) benefits in an amount unspecified in the Complaint. Id. ¶¶ 18–19. Plaintiff accordingly submitted her bills to Nationwide. Id. ¶ 21. Nationwide, however, failed or refused to provide Plaintiff any benefits. Id.
The Complaint alleges four causes of action: (1) breach of fiduciary duty to pay UIM benefits in accordance with the Pennsylvania Motor Vehicle Responsibility Law, 75 Pa. C.S. § 1731(c); (2) breach of contract/breach of good faith and fair dealing; (3) bad faith insurance practices in violation of 42 Pa. Cons.Stat. § 8371, and (4) breach of statutory and contractual duty to supply UIM benefits. The Complaint includes ad damnum clauses for each of the four counts. For three of the counts,  the ad damnum clause demands judgment “in an amount not in excess of Fifty Thousand ($50, 000) Dollars, in addition to interest and damages for delay, as well as all costs, expenses and incidental fees incurred during the course of this litigation, including attorney's fees, and punitive or exemplary damages.” Compl. ¶¶ 34, 38, 42.
In addition to including the ad damnum clauses, Plaintiff checked a box on a cover sheet accompanying the Complaint that affirms the amount in controversy is “$50, 000 or less.” Plaintiff’s case was thus designated for compulsory arbitration pursuant to a Pennsylvania law that compels arbitration in certain civil cases where the amount in controversy, exclusive of interest and costs, does not exceed $50, 000. 42 Pa. C.S. § 7361(b).
B. First Notice of Removal
On July 16, 2012, Defendant filed a notice of removal on the grounds that the amount in controversy exceeded the jurisdictional requisite of $75, 000. Defendant argued that the amount in controversy exceeded $75, 000 because three of the ad damnum clauses sought attorney’s fees and punitive damages in addition to the $50, 000 in compensatory damages.
Shortly after Defendant filed its notice of removal, Plaintiff moved to remand. In consideration of Plaintiff’s motion, the Court held an unrecorded teleconference on September 13, 2012, in which the Court noted the “somewhat confusing” wording of the ad damnum clauses. The Court gave Plaintiff leave to amend these clauses, which Plaintiff did later that day.
(ECF No. 10). Plaintiff’s amendment reworded each ad damnum clause to read as follows:
WHEREFORE, Plaintiff, Inez Coates, demands judgment against Defendant, Nationwide, of compensatory damages, punitive or exemplary damages, in addition to interest and damages for delay, as well as all costs, expenses, and incidental fees incurred during the course of this litigation, all of which are in an amount NOT in excess of Fifty Thousand ($50, 000) Dollars.
While this amendment removed the prior ambiguity, the amendment did not address all of Defendant’s concerns. As the Court explained in its September 14, 2012 memorandum, “Nationwide’s attorney also argued that even if Plaintiff did expressly limit her damages and the case proceeded to arbitration, it was unlikely the case would be resolved at that stage because of choice of law questions,  and Plaintiff would be entitled to recover more than $50, 000 on appeal.” Coates v. Nationwide Ins. Co., No. 12-4031, 2012 WL 4068437, at *3 (E.D. Pa. Sept. 14, 2012) (emphases added).
In granting Plaintiff’s motion to remand, the Court gave effect to the amended ad damnum clause. Id. at *4. While an ad damnum clause is “not dispositive of the amount in controversy, ” the Court noted that it placed the burden on Defendant to prove that the amount in controversy exceeds $75, 000 with “legal certainty.” Id. (citing Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007); Morgan v. Gray, 471 F.3d 469 (3d Cir. 2006)). The Court held that Defendant failed to meet this burden. In so holding, the Court stated that it was “unpersuaded by Nationwide’s argument that Plaintiff could recover more than $75, 000 if the arbitration award is appealed.” Id. (emphasis added). The “legal certainty” test “would ring hollow, ” the Court explained, “if the mere possibility that a plaintiff could recover ...