531 F.

2d 132
Charles M. ALBRIGHT, Administrator of Estate of Charles
Albright, Deceased, Appellant in Nos. 75--1606,
75--1607, 75--2188 and 75--2189
v.
R. J. REYNOLDS TOBACCO COMPANY, a corporation (two cases).
Nos. 75--1606, 75--1607, 75--2188 and 75--2189.

United States Court of Appeals,

Third Circuit.
Submitted Under Third Circuit Rule 12(6) Nov. 14, 1975.
Decided Feb. 13, 1976.
Certiorari Denied June 1, 1976.
See 96 S.Ct. 2229.

Kenneth W. Behrend, Mark B. Aronson, Behrend & Aronson, Pittsburgh,

Pa., for appellant.
Harold R. Schmidt, Raymond G. Hasley, Rose, Schmidt & Dixon,
Pittsburgh, Pa., for appellee.
Before ALDISERT, HUNTER and GARTH, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.

The principal question for decision is whether a diversity case, originated in

state court and otherwise properly removed to federal court pursuant to 28
U.S.C. 14411 must be remanded because of a prior determination in a parallel
case, originated in federal court, that an identical claim did not satisfy the
$10,000 federal jurisdictional threshold of 28 U.S.C. 1332.2 The district court
denied plaintiff's motion to remand, exercised federal jurisdiction, and
dismissed the case as barred by the state statute of limitations. We affirm.

The litigation arises out of the claim of Charles Albright3 that R. J. Reynolds
Tobacco Company is liable to him for cancer and related sicknesses allegedly
caused by the company's products. The controversy has been in litigation for

more than 10 years; claims have been asserted in state and federal courts; and
the matter has been in this court before. Albright v. R. J. Reynolds Tobacco
Co., 350 F.Supp. 341 (W.D.Pa.1972), aff'd, 485 F.2d 678 (3d Cir. 1973), as
modified, 3d Cir., No. 72--2105, Nov. 23, 1973, cert. denied, 416 U.S. 951, 94
S.Ct. 1961, 40 L.Ed.2d 301 (1974). Factual details are set forth in the district
court opinion, supra, and need not be repeated here.
3

Plaintiff commenced three actions in 1965, two in the Pennsylvania state court
and one in federal court. Because Pennsylvania practice did not permit joinder
of tort and contract in one complaint, plaintiff filed two actions in the Court of
Common Pleas of Allegheny County, Pennsylvania--one in trespass and one in
assumpsit--by filing praecipes for writs of summons. Although plaintiff had the
writs reissued once, in 1967, the writs were not served and plaintiff took no
further action in the state court until 1974, seven years later. Shortly after
initiating the state court action in 1965, plaintiff filed a complaint in the United
States District Court for the Western District of Pennsylvania, alleging diversity
of citizenship and an amount in controversy in excess of $10,000. He lost in
federal court: the district court dismissed the complaint, inter alia, because the
court was 'convinced to a legal certainty that the evidentiary material submitted
will not support a claim in excess of the jurisdictional minimum of $10,000.'
350 F.Supp. at 352. We affirmed on that ground, 485 F.2d 678 (3d Cir. 1973),
as modified, 3d Cir., No. 72--2105, Nov. 23, 1973, and certiorari was denied on
April 15, 1974, 416 U.S. 951, 94 S.Ct. 1961, 40 L.Ed.2d 301. See Nelson v.
Keefer, 451 F.2d 289 (3d Cir. 1971). Thereafter plaintiff sought to rejuvenate
his action in the state court.

On May 15, 1974, plaintiff had the original writs of 1965 reissued; they were
served on defendant on May 22, Praecipes to reissue the writs alleged that the
amount in controversy exceeded $10,000. Based on this allegation, and
diversity of citizenship, defendant removed to the United States District Court
for the Western District of Pennsylvania on June 20, 1974. Four days later
plaintiff filed complaints in trespass and assumpsit in the state court, each
complaint demanding judgment in excess of $3,000 only. It is undisputed that
these complaints state the identical claim previously considered by the federal
court and adjudged insufficient as a matter of law to meet the $10,000
jurisdictional requirement. Plaintiff asserts that his evidence is also the same.
Appellant's Brief at 8.

In the district court, the plaintiff moved to remand to the state court, arguing in
essence that the district court was bound to be consistent: having previously
determined as a matter of law that the identical claim did not satisfy the
$10,000 jurisdictional requirement, the court could not now take jurisdiction of

the case on removal. Furthermore, plaintiff argued, the complaints

subsequently filed in the removed cases sought recovery in excess of $3,000
only. The defendant, for its part, opposed the motion to remand and moved for
summary judgment on the grounds that the claim was barred by the statute of
limitations, prior accord and satisfaction, and res judicata.
6

The district court denied plaintiff's motion to remand and dismissed the claim
as barred by the statute of limitations without considering the other grounds of
defendant's motion. Plaintiff has appealed from the final judgment pursuant to
28 U.S.C. 1291, but challenges only the denial of his motion to remand. Brief
for Appellant at 2. A denial of a motion to remand is properly reviewable on
appeal from a final judgment. American Fire & Casualty Co. v. Finn, 341 U.S.
6, 71 S.Ct. 534, 95 L.Ed. 702 (1951); C. Wright, Federal Courts 41, at 147
(2d Ed. 1970).

I.
7

We agree with the district court that St. Paul Mercury Indemnity Co. v. Red
Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938), properly controls
the calculation of jurisdictional amount, and that the $10,000 requirement was
satisfied. It may seem anomalous that a court can say a claim is not worth
$10,000 and then say it is. However, the determination in one instance was
made in a case originated in federal court; in the other instance the
determination was made in an action removed to federal court. St. Paul Mercury
Indemnity makes clear the very different standards applicable. In an action
originated in federal court, the court must strike a difficult balance where
unliquidated damages are involved: a plaintiff's frivolous claim cannot be
decisive to establish the jurisdiction of the court, yet jurisdiction cannot be
made to depend on the final outcome of the case. C. Wright, Federal Courts
33, at 111 (2d ed. 1970). St. Paul Mercury Indemnity Co. explains why the
determination of the amount in controversy in a removed case is not so
difficult:

8 a cause instituted in the federal court the plaintiff chooses his forum. He knows or
In
should know whether his claim is within the statutory requirement as to amount. His
good faith in choosing the federal forum is open to challenge not only by resort to
the face of his complaint, but by the facts disclosed at trial, and if from either source
it is clear that his claim never could have amounted to the sum necessary to give
jurisdiction there is no injustice in dismissing the suit. . . . In such original actions it
may also well be that plaintiff and defendant have colluded to confer jurisdiction by
the method of the one claiming a fictitious amount and the other failing to deny the
veracity of the averment of amount in controversy. Upon disclosure of that state of

facts the court should dismiss.

9 different situation is presented in the case of a suit instituted in a state court and
A
thence removed. There is a strong presumption that the plaintiff has not claimed a
large amount in order to confer jurisdiction on a federal court or that the parties have
colluded to that end. For if such were the purpose suit would not have been instituted
in the first instance in the state but in the federal court. It is highly unlikely that the
parties would pursue this roundabout and troublesome method to get into the federal
court by removal when by the same device the suit could be instituted in that court.
Moreover, the status of the case as disclosed by the plaintiff's complaint is
controlling in the case of a removal, since the defendant must file his petition before
the time for answer4 or forever lose his right to remove. Of course, if, upon the face
of the complaint, it is obvious that the suit cannot involve the necessary amount,
removal will be futile and remand will follow. But the fact that it appears from the
face of the complaint that the defendant has a valid defense, if asserted, to all or a
portion of the claim, or the circumstance that the rulings of the district court after
removal reduce the amount recoverable below the jurisdictional requirement, will
not justify remand. And though, as here, the plaintiff after removal, by stipulation,
by affidavit, or by amendment of his pleadings, reduces the claim below the
requisite amount, this does not deprive the district court of jurisdiction.
10

303 U.S. at 290--92, 58 S.Ct. at 591 (original footnotes omitted).

11

We find this analysis clear and controlling. Here, it was the status of the case as
disclosed by plaintiff's state court praecipes that controlled; plaintiff did not file
his complaints reducing the amount claimed until after removal. It is settled
that '(g)enerally the right of removal is decided by the pleadings, viewed as of
the time when the petition for removal is filed', C. Wright, Federal Courts 38,
at 134 (2d ed. 1970) (citing cases), and that 'events occurring subsequent to
removal which reduce the amount recoverable, whether beyond the plaintiff's
control or the result of his volition, do not oust the district court's jurisdiction
once it has attached.' St. Paul Mercury Indemnity Co. v. Red Cab Co., supra,
303 U.S. at 293, 58 S.Ct. at 592. 1 W. Barron & A. Holtzoff, Federal Practice
and Procedure 101, at 464 (Wright ed. 1961) (citing cases). A fortiori, the
filing of a pleading reducing the amount claimed could not oust the district
court of jurisdiction.

12

It is precisely at this point where we and Judge Hunter part company. He does
not agree with what we consider a clear statement in St. Paul Mercury
Indemnity Co. Instead, characterizing it as ambiguous dictum (Dissenting Op.
at 139) he expresses the view: 'In sum, I believe that the law is that in a removal
case, just as in an original case, jurisdiction is to be determined as of the time

the action first reaches the district court, but that the court can and indeed must
reassess jurisdiction as the case proceeds.' (Dissenting Op. at 140.)
13

Considering the Supreme Court's stated rationale, 303 U.S. at 290--92, 58 S.Ct.
586, heretofore set forth at length, we find the rule of the controlling case
neither ambiguous5 nor dictum.6

14

The unusual aspect of this case is that the same judge 7 had previously
determined as a matter of law that the identical claim did not satisfy the
$10,000 requirement. Plaintiff argues that the district judge in considering the
removed cases was obliged to take judicial notice of his prior determination of
the companion federal case. While this argument has certain visceral appeal, it
cannot withstand legal scrutiny. In unliquidated damage cases, the
determination of the amount in controversy is necessarily an imprecise
calculation. It does not involve an objective fact, it involves a legal estimation,
drawing on available evidence and with consideration for the procedural
posture of the case. The standards for making the determination in an action
originated in federal court are imprecise and difficult, Nelson v. Keefer, supra.
But as St. Paul Mercury Indemnity Co. indicates, it is not unreasonable to apply
different, simpler standards to a removed case: there is little danger of a
frivolously high claim to invoke improperly federal jurisdiction, and there is a
need for certainty to allow the defendant to decide promptly whether to
remove. Different standards may compel different results.

15

Plaintiff asks, in effect, that we engraft onto the St. Paul Mercury Indemnity
Co. rule an exception to cover the particular facts of this case. We decline to do
so for several reasons. First, the logic of that case is compelling and, even if it
were not, we are not free to disagree with it. Second, plaintiff has suggested no
workable formulation of the exception he urges and no principle upon which
such an exception could rest. Here the prior determination of insufficient
amount in controversy was by the same judge. Would that be a necessary
element of the exception we are asked to announce? Or would a prior decision
of the same court suffice? Would the two claims have to be identical? Or would
substantial similarity suffice? '(T)he main constituent of the judicial process is
precisely that it must be genuinely principled, resting with respect to every step
that is involved in reaching judgment on analysis and reasons quite
transcending the immediate result that is achieved.' Wechsler, Toward Neutral
Principles of Constitutional Law, 73 Harv.L.Rev. 1, 15 (1959). Plaintiff has
exposed no principle lurking here upon which to rest the exception he urges,
and we decline to announce a rule of law that would be sui generis in
application.

II.
16

A third reason we decline to announce the exception urged is that we are not
moved by the equities of plaintiff's case: the claim was time-barred under
Pennsylvania law prior to removal. Plaintiff concedes as much and, in fact, has
not appealed the district court's judgment that the claim is barred by the statute
of limitations. The only real question is whether the claim will be dismissed as
time-barred by the federal court or the state court. Not only are we reluctant to
generate the expenditure of additional state judicial resources by a remand
under such circumstances, but we see no purpose in it. In a diversity case, a
federal court is bound to apply the same statute of limitations that the
coordinate state court would apply. Guaranty Trust Co. v. York, 326 U.S. 99,
65 S.Ct. 1464, 89 L.Ed. 2079 (1945); see Day and Zimmerman, Inc. v.
Challoner, 423 U.S. 3, 96 S.Ct. 167, 46 L.Ed.2d 3, 44 U.S.L.W. 3262 (1975)
(per curiam).

17

Plaintiff's original praecipes were filed on August 24, 1965. Under

Pennsylvania law, plaintiff was obliged to serve the writs of summons within
30 days, Pa.R.Civ.P. 1009(a), or seek reissuance of the writs within the period
of the applicable statute of limitations. Yefko v. Ochs, 437 Pa. 233, 263 A.2d
416 (1970); Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961). Two
years is the applicable limitations period in trespass, 12 P.S. 34; four years is
the applicable period in assumpsit, 12A P.S. 2--725. Plaintiff was obviously
aware of the necessity for seeking reissuance of the writs because he did so on
May 22, 1967. This kept his claim alive for a further period measured by the
applicable statute of limitations. Hence, he had until May 22, 1969, to reissue
the writ in trespass, and until May 22, 1971, to reissue the writ in assumpsit. He
did not reissue either writ until May 15, 1974. Therefore, the claims were timebarred under Pennsylvania law, and would have been dismissed by a
Pennsylvania court. A federal court in a removed diversity case is bound to do
the same. Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160 (3d Cir., No.
75--1514, filed Jan. 26, 1976).

18

We conclude: (1) that the $10,000 requirement of 28 U.S.C. 1332 was

satisfied as of the date the petition for removal was filed--the district court,
therefore, properly entertained jurisdiction and properly denied plaintiff's
motion to remand; and (2) that, having thus taken cognizance of the case, the
district court properly granted defendant's motion to dismiss the claim as barred
by Pennsylvania's statute of limitations.

III.

19

It remains to consider plaintiff's argument, apparently premised on due process,

that the district court's decision deprives him of his right to trial in the state
court. This argument is without merit. Characterizing the writs of summons as
'protective' writs (Appellant's Brief at 7) hardly suffices to convince us that
plaintiff's action was not time-barred. The Pennsylvania statute of limitations
was not tolled by the filing or during the pendency of the claim in federal court.
McSparren v. Weist, 402 F.2d 867, 876 (3d Cir. 1968), cert. denied, 395 U.S.
903, 89 S.Ct. 1739, 23 L.Ed.2d 217 (1969); Overfield v. Pennroad Corp., 146
F.2d 889, 898 (3d Cir. 1944). Pennsylvania has a very simple procedure
whereby a litigant in these circumstances can protect his state court action
indefinitely: timely reissuance of timely issued writs. Plaintiff was obviously
aware of this procedure when he procured reissuance in 1967, but, thereafter, he
neglected the procedure and his claim lapsed. A statute of limitations inherently
deprives a tardy litigant of any right to trial he might have had. On this point,
we wholly agree with the district court's observation:

20 requirements of reasonable procedural rules and the substantive law of statutes

The
of limitations which bar commencement of an action after a stated period of time do
not infringe upon the requirement of due process. It would appear that the defendant
has also certain rights, including the right, at some stage, to be free from further
litigation.
21

The judgment of the district court denying the motion to remand and dismissing
the claim as barred by the statute of limitations will be affirmed.
JAMES HUNTER, III, Circuit Judge (dissenting):

22

I respectfully dissent from the majority's conclusion (part 'I') that the district
judge acted properly in refusing to remand plaintiff's action(s)1 to the state
court. In my view, the majority's result is not required by either the holding or
the language of St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283,
58 S.Ct. 586, 82 L.Ed. 845 (1938), the case relied on.2 The contrary result is
supported by related principles governing our original diversity jurisdiction as
well as by commonsense ideas of fairness and orderly process.

23

In St. Paul Mercury, the Court was asked to review3 a decision that

24
although,
at the time of removal of a cause from a state court, the complaint
disclosed an amount in controversy requisite to the federal court's jurisdiction, a
subsequent amendment, reducing the sum claimed to substantially less than that
amount, necessitates remand to the state court.

25

Id., 303 U.S. at 284, 58 S.Ct. at 588. The Court's unanimous decision that such
an amendment after removal could not oust the district court's jurisdiction
establishes that the action of the appellant here in filing state court complaints
alleging 'in excess of $3000' could not affect jurisdiction if the district court had
previously acquired jurisdiction on the basis of the praecipes alleging in excess
of $10,000. The correctness of the district court's treatment of that issue is
therefore beyond question, and in fact appellant has not claimed otherwise in
this court.

26

At the same time, it should be clear from the quotation above that the St. Paul
Mercury holding did not cover the situation in which it is alleged that a remand
is required on the ground that the original complaint (or, in this case, praecipe)
failed to place in controversy an amount in excess of $10,000. Nevertheless, the
majority interprets language in that opinion as establishing a rule that, in
removal cases, the question of whether or not the amount actually in
controversy meets the jurisdictional requirement is forever foreclosed if the
original documents are not insufficient on their face. The ground stated is that
'generally the right of removal is decided by the pleadings, viewed as of the
time when the petition for removal is filed' (Majority opinion at p. 7, quoting
from C. Wright, Federal Courts 134 (2d ed. 1970), and 'events occurring
subsequent to removal which reduce the amount recoverable. . . do not oust the
district court's jurisdiction once it has attached.' (Majority opinion at p. 135,
quoting from St. Paul Mercury, 303 U.S. at 293, 58 S.Ct. at 586.) Once again, I
do not believe that the quoted language necessarily precludes a later conclusion
by the district court, based on matters not appearing in the original documents,
that jurisdiction did not in fact attach.

27

The right of removal may indeed, as a practical matter, be decided initially by

the pleadings, since in many cases the only 'record' at the time of the 'decision'
will be the plaintiff's complaint (or praecipe) and the defendant's petition for
removal. This should not lead to the conclusion that the court cannot consider,
sua sponte or on plaintiff's motion to remand, subsequent developments in the
record. If it were so, 28 U.S.C. 1447(c), providing that

28 at any time before final judgment it appears that the case was removed
(i)f
improvidently and without jurisdiction, the district court shall remand the case . . .,
29

would be rendered almost meaningless; it would provide only for those cases in
which the district judge, reviewing his removal decision on the same record,
i.e., the pleadings and the petition for removal, concluded that he had erred. It
is much more reasonable to conclude that the district judge is not only
permitted but required to carry out the directive of 1447(c) in the light of the

developing record after removal.4

30

Appellant did not seek to rely (solely) on 'events occurring subsequent to

removal which reduce the amount recoverable.' He sought only to have
considered by the trial court matters which would shed light on the question of
whether the action, as of the time of removal, actually comprised matters in
controversy in excess of $10,000. In other words, appellant did not attempt to
defeat or oust jurisdiction, but rather attempted to prove that jurisdiction had
never existed.

31

There are strong policy considerations why any ambiguity in the dictum of St.
Paul Mercury and the language of 1447(c) should be resolved in favor of an
interpretation which mandates a continuing review of the current record to
determine whether the action was properly removed. It is well established that
in original diversity suits the district court is not bound as to the jurisdictional
amount by the allegations of the complaint, but rather must dismiss at any point
in the proceedings where it appears 'to a legal certainty' that the claims were
really for less than the jurisdictional amount. Nelson v. Keefer, 451 F.2d 289
(3d Cir. 1971) (affirming dismissal based on information adduced during
pretrial proceedings).5 The majority's analysis would thus create a significant
and, in my view, unwarranted common law exception to the general rule that
the removal jurisdiction of the district court is co-extensive with its original
jurisdiction. E.g., Boston & Montana Consolidated Copper and Silver Mining
Co. v. Montana Ore Purchasing Co., 188 U.S. 632, 640, 23 S.Ct. 434, 47 L.Ed.
626 (1903); 28 U.S.C. 1441(a);6 C. Wright, Federal Courts 130--31 (2d ed.
1970).

32

In addition, the majority's conclusion offers a plaintiff and a defendant (of

diverse citizenship) who both wish to litigate in federal court a method for
circumventing the restrictions which Congress and the courts have placed on
the original diversity jurisdiction of the district courts. Where such litigants
recognize that a complaint can be drawn which, on its face, appears to place in
controversy the jurisdictional amount, but which, after further proceedings, will
be exposed as inadequate to invoke federal court jurisdiction, they will be
permitted, under the majority's analysis, to secure by the 'back door' of removal
what they could not secure by the 'front door' of original jurisdiction. I cannot
believe that this is what either Congress or the St. Paul Mercury Court intended.

33

The majority admits that the application of its rule to the present facts 'seem(s)
anomalous' (Majority opinion at p. 134), and that the appellant's position 'has
certain visceral appeal.' (Id. at 136). A brief re-statement of the prior
proceedings will demonstrate that both statements are fully justified. Plaintiff

first sought a federal forum, filing an original diversity action. On motion of the
defendant, the district judge, after taking evidence, granted summary judgment
for defendant on the ground that plaintiff had secured prior satisfaction of his
claim. Albright v. R. J. Reynolds Tobacco Co., 350 F.Supp. 341, 344--49
(W.D.Pa.1972). However, the opinion went on to hold, also on the motion of
defendant (Brief of Appellee at p. 18), that it was clear 'to a legal certainty' that
the claim did not place in controversy the jurisdictionally required amount. Id.
at 349--52. This court affirmed, specifying that the affirmance was based on the
jurisdictional ground. Albright v. R. J. Reynolds Tobacco Co., 485 F.2d 678 (3d
Cir. 1973), as modified, 3d Cir. No. 72--2105, Nov. 23, 1973, cert. denied, 416
U.S. 951, 94 S.Ct. 1961, 40 L.Ed.2d 301 (1974). Appellant, bowing to the
inevitable, then sought to pursue his claim in state court--a claim which
appellee conceded was identical to that proffered in federal court. Opinion of
August 6, 1974, p. 119a; Brief of Appellee at pp. 3, 19. Nevertheless, appellee
removed, seeking to invoke the federal court jurisdiction it had once shunned.
The reason(s)7 for appellant's resistance to this move are understandable; in
federal court he would be before the same district judge who had already
expressed the (unnecessary) opinion that appellant's cause was not meritorious.
Nevertheless, the district court exercised jurisdiction over the case and disposed
of it once and for all, albeit on a ground other than that stated in its earlier
opinion. It would be difficult to explain to appellant why he should not feel that
he has been subjected to a 'catch 22.' (See appellant's Brief at p. 8).
34

In sum, I believe that the law is that in a removal case, just as in an original
case, jurisdiction is to be determined as of the time the action first reaches the
district court, but that the court can and indeed must reassess jurisdiction as the
case proceeds. While the court is not to consider events (e.g., change in parties'
citizenship, Morgan's Heirs v. Morgan, 15 U.S. (2 Wheat) 290, 4 L.Ed. 242
(1817) (original jurisdiction)) occurring after filing or removal, it must consider
any light that material subsequently submitted sheds on the jurisdictional 'facts'
that existed at the time of filing or removal, e.g., the 'facts' establishing that the
requisite amount was in controversy.

35

There is then no need to 'engraft . . . an exception to cover the particular facts of

this case.' (Majority opinion at p. 136). The prior court determination to which
appellant called attention in support of its motion to remand is just one of
various types of 'evidence' which might be submitted to prove whether or not
the jurisdictional amount was actually in controversy.8 On the facts of this case,
a reversal is required. Although the district judge held that he was not bound by
his earlier opinion (or this court's affirmance thereof) (opinion of August 6,
1974, p. 120a), the cases he cites hold only that a jurisdictional dismissal does
not bar a subsequent adjudication if the jurisdictional defect is cured. E.g.,

Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870 (3d Cir. 1972). Since
the parties have stipulated that the removed cause raised the identical claim
previously held jurisdictionally insufficient, the appellant cannot be found to
have cured the defect which caused the earlier dismissal. Luker v. Nelson, 341
F.Supp. 111, 114 (N.D.Ill.1972), also cited by the district court, states '(t)he
general rule' that 'a determination of lack of jurisdiction will be deemed
judicially conclusive in a subsequent suit on the same cause of action as to the
precise issue of jurisdiction previously ruled upon. See American Surety Co. v.
Baldwin, 287 U.S. 156, 166, 53 S.Ct. 98, 77 L.Ed. 231 . . . (1932).'
36

Without expressing any opinion as to whether the district court and the majority
have properly decided the state-law statute of limitations question, I
respectfully submit that the merits (or lack thereof) of appellant's claim cannot
be used to support the district court's refusal to remand. If, as I would hold, the
district court was required to remand for lack of jurisdiction, neither that court
nor this court has any power to decide on any aspect of the underlying cause of
action. Metcalf v. Watertown, 128 U.S. 586, 587, 9 S.Ct. 173, 32 L.Ed. 543
(1888) (statute of limitations). While it may be that '(t)he only real question is
whether this claim will be dismissed as time-barred by the federal court or the
state courts' (majority opinion at p. 136), that evaluation would not make the
question any less 'real' or any less important. '(I)t is federal policy to strictly
construe removal statutes and to limit the removal jurisdiction of the federal
courts. The cases are legion.' Witherow v. Firestone Tire and Rubber Co., 530
F.2d 160, 168--169, 3d Cir., No. 75--1514, filed Jan. 26, 1976.

37

The judgment appealed from should be vacated and the case remanded to the
district court with directions to remand to the Court of Common Pleas of
Allegheny County, Pennsylvania.

1441. Actions removable generally

(a) Except as otherwise expressly provided by Act of Congress, any civil action
brought in a State court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the defendants, to the
district court of the United States for the district and division embracing the
place where such action is pending.
(b) Any civil action of which the district courts have original jurisdiction
founded on a claim or right arising under the Constitution, treaties or laws of
the United States shall be removable without regard to the citizenship or
residence of the parties. Any other such action shall be removable only if none

of the parties in interest properly joined and served as defendants is a citizen of

the State in which such action is brought. . . .
2

1332. Diversity of citizenship; amount in controversy;

(a) The district courts shall have original jurisdiction of all civil actions where
the matter in controversy exceeds the sum or value of $10,000, exclusive of
interest and costs, and is between-(1) citizens of different States;
(2) citizens of a State, and foreign states or citizens or subjects thereof; and
(3) citizens of different States and in which foreign states or citizens or subjects
thereof are additional parties. . . .

Charles Albright died in 1965 and his widow was substituted as plaintiff. Mrs.
Albright died in 1973 and Mr. Albright's son, Charles M. Albright, was
substituted as plaintiff. We shall refer simply to the plaintiff

The time for filing the removal petition has been changed. Defendant now has
30 days from receipt of the initial pleading, or from service of the summons if
the initial pleading is filed and not served. Alternatively, if 'the case stated by
the initial pleading is not removable', defendant has 30 days from receipt of the
legal paper 'from which it may first be ascertained that the case is one which is
or has become removable.' 28 U.S.C. 1446(b). See generally P. Bator, P.
Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler's The Federal Courts and
the Federal System 1203--04 (2d ed. 1973)

'If the language be clear it is conclusive. There can be no construction if there is

nothing to construe.' United States v. Hartwell, 73 U.S. (6 Wall.) 385, 396, 18
L.Ed. 830 (1868)

Although what is or is not dictum may, like beauty, be in the eye of the
beholder, see Comment, Dictum Revisited, 4 Stan.L.Rev. 509 (1952), Rupert
Cross offers a formulation that should not be too controversial: '(A)n obiter
dictum is a 'statement of law in the opinion which could not logically be a
major premise of the selected facts of the decision." R. Cross, Precedent in
English Law 80 (2d ed. 1968)

Judge Weber heard the original federal court case. 350 F.Supp. 341
(W.D.Pa.1972). Rule 35(E) of the Rules of Court for the Western District of
Pennsylvania provides that related cases shall be assigned to the same judge.
Accordingly, Judge Weber also heard the instant case

Two state court actions were initially involved. See majority opinion at pp. 133-134, supra
These were consolidated after removal to district court. Opinion and Order of
Aug. 6, 1974, p. 122a.

The second opinion of the district court dealing with the remand issue, dated
March 6, 1975, relies also on Hatridge v. Aetna Casualty & Surety Co., 415
F.2d 809 (8th Cir. 1969), and American Universal Insurance Co. v. Kruse, 306
F.2d 661 (9th Cir. 1962). See p. 131a. Neither case is directly on point,
although each opinion quotes the language from St. Paul Mercury which is
discussed below. To the extent that it is relevant, I believe that Hatridge, in
which the court affirmed a refusal to remand even though the complaint
claimed less than $10,000 supports reversal here

It may be noted that the respondent conceded that the decision below was in
error

It may be that this is the view of 1447(c) that the district judge took. At the
close of his first opinion (August 6, 1974) denying the motion to remand, he
noted that 'this disposition is not a final determination of the question of
jurisdiction,' quoting 1447(c) (p. 121a). The district judge reaffirmed his
refusal to remand in his opinion of March 6, 1975, in which he also granted
summary judgment for defendant (pp. 125--32a). It may therefore be that my
disagreement with the district judge is much narrower than my diagreement
with the majority opinion, in that the former goes only to the question of the
weight to be given to the prior jurisdictional dismissal. See the transcripts of
oral arguments on motions to remand, pp. 34--82a

This, of course, is exactly the procedure we approved in our first hearing of this
case, Albright v. R. J. Reynolds Tobacco Co., 485 F.2d 678 (3d Cir. 1973), as
modified, 3d Cir., No. 72--2105, Nov. 23, 1973, cert. denied, 416 U.S. 951, 94
S.Ct. 1961, 40 L.Ed.2d 301 (1974). The district judge based his dismissal on
'extensive discovery, production of evidence, pre-trial narratives and argument
of counsel.' Opinion of March 6, 1975, p. 131a

28 U.S.C. 1441: Actions Removable Generally

(a) Except as otherwise expressly provided by Act of Congress, any civil action
brought in a state court of which the district courts of the United States have
original jurisdiction, may be removed. . . .
The aspects in which removal jurisdiction is, by statute, made broader than
original jurisdiction are collected in 1 J. Moore, Federal Practice 662 (2d ed.).

None is applicable here.

7

Appellant also claimed that the district judge was biased against his claim, and
sought his disqualification. When the district judge declined to step aside,
appellant sought a writ of mandamus, which was denied by this court on
October 31, 1974 (No. 74--2088), and by the Supreme Court on January 27,
1975 (No. 74--723)

If it were necessary to find an 'exception' to cover the peculiar facts of this case,
it would be unnecessary to look further than St. Paul Mercury. In footnote 23,
immediately following the text cited by the majority, the Court cited two cases
in which the federal courts remanded after it appeared at trial that the
jurisdictional amount had not actually been in controversy, and concluded that
the remands 'may have been justified by the conviction that the defendant when
it removed knew that the amount involved was too little to give jurisdiction.'
303 U.S. at 292--93, 58 S.Ct. at 592. Certainly the facts here are within that
type of 'bad faith' rationale