Blizman v. The Travelers Home and Marine Insurance Company

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EDITH M. BLIZMAN, as Executrix of :

the Estate of Joseph Blizman, :

Plaintiff, :

v. : 3:21-CV-1546

: (JUDGE MARIANI)

TRAVELERS HOME AND MARINE,

INSURANCE COMPANY,

Defendant.

MEMORANDUM OPINION

1. INTRODUCTION

Presently before the Court is Plaintiff's Motion for Remand (Doc. 5), requesting that

the Court remand the above-captioned action which Defendant removed from the Court of

Common Pleas of Luzerne County on September 9, 2021 (Doc. 1). For the reasons that

follow, the Court will grant Plaintiffs Motion.

Il. PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS

On June 23, 2021, Plaintiff Edith Blizman, as executrix of the Estate of Joseph

Blizman, commenced this action against Defendant Travelers Home and Marine Insurance

Company (“Travelers”), through a Writ of Summons in the Court of Common Pleas of

Luzerne County. (Doc. 1-2, Ex. A). Service of the Writ of Summons was perfected on June

28, 2021. (Doc. 1-2, Ex. B). Attorneys Brooks R. Foland, Allison Krupp, and Christopher

Woodward, and the law firm of Marshall Dennehey Warner Coleman & Goggin entered their

appearance as counsel for Defendant Travelers on July 20, 2021. (See Doc. 5-4; Doc. 5, f

3; Doc. 13, □ 3). On August 5, 2021, Plaintiff filed a two-count Complaint in the state court

against Defendant, alleging statutory bad faith under 42 Pa. C.S. § 8371 (Count I) and

breach of contract, duty of good faith and fair dealing (Count Il). (Doc. 1, 3; Doc. 1-2, Ex.

D). Plaintiffs counsel thereafter, on August 6, 2021, emailed Attorney Foland stating:

We filed the bad faith complaint yesterday and it is being served on Travelers

by mail. | know you are not counsel of record at this point, and | am not sure if

you eventually will be, but | wanted to get a courtesy copy of the complaint to

you. It is attached.

(Doc. 5-6).! Attorney Foland responded “Thank you” by email that same day. (/d.). The

Complaint was mailed by U.S. Mail, First Class, Postage Prepaid, to Travelers’ corporate

office on August 6, 2021. (See Doc. 5-5). Travelers asserts that it received, and therefore

was served with, a copy of the Complaint by mail on August 11, 2021. (Doc. 12, at 2).

On September 9, 2021, Defendant Travelers removed the action to federal court

pursuant to 28 U.S.C. §§ 1441 and 1446 on the basis of diversity jurisdiction. (Doc. 1).

Plaintiff thereafter timely filed a Motion for Remand (Doc. 5) and supporting brief (Doc. 8) to

which Defendant filed a brief in opposition (Doc. 12) and Plaintiff filed a Reply (Doc. 14).

1 Counsel for Plaintiff admits that he was incorrect in his belief that Attorney Brooks Foland had not

yet entered his appearance on behalf of Travelers at this time, a fact he attributes to Defendant's counsel

improper service of their Entry of Appearance on Plaintiffs counsel. (Doc. 14, at 4-7).

Ill. ANALYSIS

Section 1441 permits the removal of certain civil actions originally filed in state court

from the state to federal court. The removal procedure, forth in 28 U.S.C. § 1446, provides

in relevant part as follows:

The notice of removal of a civil action or proceeding shall be filed within 30 days

after the receipt by the defendant, through service or otherwise, of a copy of

the initial pleading setting forth the claim for relief upon which such action or

proceeding is based, or within 30 days after the service of summons upon the

defendant if such initial pleading has then been filed in court and is not required

to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446(b)(1).

Here, Travelers removed this action on the basis of diversity of jurisdiction in

accordance with 28 U.S.C. § 1332, which Plaintiff does not dispute constitutes a proper

basis for removal in this case. Rather, Plaintiff argues that Defendant’s removal of the case

was untimely under §1446 and therefore this Court lacks jurisdiction over the action and

must remand the action to the Court of Common Pleas. (Doc. 5, ff] 11, 12).

“Removal statutes are to be strictly construed, with all doubts to be resolved in favor

of remand.” Brown v. Jevic, 575 F.3d 322, 326 (3d Cir. 2009) (citing Batoff v. State Farm

Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992)). See also, Sikirica v. Nationwide Ins. Co., 416

F.3d 214, 219 (3d Cir. 2005) (“The statute governing removal, 28 U.S.C. § 1441, must be

strictly construed against removal.”). “It is now settled in this Court that the party asserting

federal jurisdiction in a removal case bears the burden of showing, at all stages of the

litigation, that the case is properly before the federal court.” Frederico v. Home Depot, 507

F.3d 188, 193 (3d Cir. 2007) (citing Samue/-Basseit v. KIA Motors Am., Inc., 357 F.3d 392

(3d Cir. 2004)). See also, Costa v. Verizon New Jersey, Inc., 936 F. Supp. 2d 455, 458

(D.N.J. 2013) (defendant removing the case “bears the burden of establishing jurisdiction

and compliance with all pertinent procedural requirements.”); Groh v. Groh, 889 F.Supp.

166, 169-170 (D.N.J. 1995) (“The burden of proof is on the removing party to show removal

was timely.”)(citing Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990); Stee/

Valley Auth. v. Union Switch and Signal, Div. Am. Standard, Inc., 809 F.2d 1006, 1011 (3d

Cir.1987)).

Here, Defendant Travelers filed its notice of removal on September 9, 2021. (Doc.

1). Atissue is whether Plaintiffs August 6, 2021 email to Defendant’s counsel constituted

proper service, such that Defendant must have filed its notice of removal on or before

September 7, 2021, or whether service was not effectuated until August 11, 2021, when

Travelers first received the Complaint by mail, such that the September 9, 2021 notice of

removal was timely.

The Court begins its analysis by noting Plaintiff's counsel's email stating that he was

sending a “courtesy copy” of the Complaint and would serve the Complaint on Travelers by

mail (Doc. 5-6), language upon which Defendant heavily relies upon in arguing that the

email did not constitute proper service. In Murphy Brothers v. Michetti Pipe Stringing, Inc.,

the Supreme Court held that “a named defendant's time to remove is triggered by

simultaneous service of the summons and complaint, or receipt of the complaint, ‘through

service or otherwise,’ after and apart from service of the summons, but not by mere receipt

of the complaint unattended by any formal service.” 526 U.S. 344, 347-348 (1999)

(‘courtesy copy” of a file-stamped copy of the complaint, faxed to the defendant two weeks

prior to plaintiff's service of the complaint by mail, was insufficient to trigger the Defendant's

30-day time limit to remove the case to federal court.). Nonetheless, Plaintiffs counsel

argues that, despite his use of the words “courtesy copy’, the email was not a courtesy copy

where Defendant's counsel had already entered his appearance (although unbeknownst to

Plaintiff's counsel), and therefore “certain mechanisms relevant to Pennsylvania’s rules

governing proper service” were triggered. (Doc. 8, at 7).

Rule 440 of the Pennsylvania Rules of Civil Procedure states that with respect to

service of legal papers other than original process:2

(1) Copies of all legal papers other than original process filed in an action or

served upon any party to an action shall be served upon every other party to

the action. Service shall be made

(i) by handing or mailing a copy to or leaving a copy for each party at the

address of the party's attorney of record endorsed on an appearance or

prior pleading of the party, or at such other address as a party may agree,

Or...

2 Pennsylvania Rules of Civil Procedure provide that “[a]n action may be commenced by filing with

the prothonotary: (1) a praecipe for a writ of summons, or (2) a complaint’, Pa. R. Civ. P. 1007, and that

‘[o]riginal process shall be served within the Commonwealth within 30 days after the issuance of the writ or

the filing of the complaint”, Pa. R. Civ. P. 401, or “shall be served outside the Commonwealth within ninety

days of the issuance of the writ or the filing of the complaint. . .”, Pa. R. Civ. P. 404. Pennsylvania courts

have therefore explained that the service of a writ of summons constitutes original process. See e.g., Am.

Interior Constr. & Blinds Inc. v. Benjamin’s Desk, LLC, 206 A.3d 509, 513 (Pa. Super. Ct., 2019).

Here, in Junie of 2021, Plaintiff commenced this action against Travelers through a Writ of

Summons in the Court of Common Pleas of Luzerne County, and served the Writ of Summons on

Defendant. (Doc. 1-2, Ex. A, B). Therefore, because original process had been completed at this time, the

Court looks to Rule 440, addressing service of legal papers other than original process, in determining the

point at which Defendant was properly served with the Complaint.

(ii) by transmitting a copy by facsimile to the party's attorney of record as

provided by subsection (qd).

(2)(i) If there is no attorney of record, service shall be made by handing a copy

to the party or by mailing a copy to or leaving a copy for the party at the address

endorsed on an appearance or prior pleading or the residence or place of

business of the party... .

Pa. R. Civ. P. 440(a). A Note following Rule 440(a)(1)(i) refers the reader to Rule 205.4(g)

“[flor electronic service by means other than facsimile transmission.” Id.

Pursuant to Rule 205.4 (“Electronic Filing and Service of Legal Papers’):

(1) Copies of all legal papers other than original process filed in an action or

served upon any party to an action may be served

(i) as provided by Rule 440 or

(ii) by electronic transmission, other than facsimile transmission, if the

parties agree thereto or an electronic mail address is included on an

appearance or prior legal paper filed with the court in the action. A paper

served electronically is subject to the certifications set forth in subdivision

(b)(3).

(2) Service by electronic transmission is complete when a legal paper is sent

(i) to the recipient's electronic mail address, or

(ii) to an electronic filing system website and an e-mail message is sent to

the recipient by the electronic filing system that the legal paper has been

filed and is available for review on the system's website.

Pa. R. Civ. P. 205.4(g).

Plaintiff argues that the email of August 6, 2021, sent to Attorney Foland, constituted

proper service of the Complaint “in compliance with Pennsylvania’s procedural rules” where

Attorney Foland was counsel of record and the email was sent to the “electronic address

noted on Defendant’s counsel's entry of appearance.” (Doc. 8, at 8). This Court agrees.

Attorney Foland’s contact information, as well as the contact information of two other

attorneys at his law firm, was set forth on the Entry of Appearance, electronically filed on the

docket in the Court of Common Pleas on July 20, 2021. The contact information set forth

included Defendant's counsel's address, telephone and fax numbers, and the respective

email addresses of the three defense attorneys. (See Doc. 5-4, at 1). Pursuant to Rule

205.4(g)(ii), although it is clear that the parties did not enter into an agreement that service

could be made through electronic transmission, by including the electronic mail addresses

of the three attorneys for Defendant on the Entry of Appearance, which was filed with the

court in this action, service via email was proper. Further, service of the Complaint was

complete when it was sent to Attorney Foland’s email address on August 6, 2021, see Pa.

R. Civ. P. 205.4(g)(2).3

Travelers, through its counsel, seeks to profit from its counsel’s failure to truthfully

respond to Plaintiff's counsel and notify him that he was of record in this case. While the

Supreme Court cautioned in Murphy that “a named defendant's time to remove is triggered

by simultaneous service of the summons and complaint, or receipt of the complaint,

‘through service or otherwise,’ after and apart from service of the summons, but not by mere

receipt of the complaint unattended by any formal service”, 526 U.S. at 347-348, in the

3 The Court recognizes that although Rule 205.4(g) allows a legal paper to be served if “an

electronic mail address is included on an appearance or prior legal paper filed with the court in the action’,

the Note thereto provides that “[a]n electronic mail address set forth on letterhead is not a sufficient basis

under this rule to permit electronic service of legal papers.” See also, Pa. R. Civ. P. 205(g), Explanatory

Comment - 1999 (“A note to the proposed rule is explicit in stating that such an electronic mail address on

an attorney's letterhead is an insufficient basis for electronic service.”). Upon review of the Entry of

Appearance in this matter, the contact information of Attorneys Foland, Krupp, and Woodward, set forth on

the first page of the Entry of Appearance immediately above the caption of the case, cannot be said to be

contained within “letterhead.”

present case, despite Plaintiffs counsel's use of the words “courtesy copy”, the

Pennsylvania Rules of Civil Procedure provide that his email, which included the Complaint

as an attachment, constituted proper service of the Complaint. Defendant's focus on the

semantics of Plaintiff's counsel’s email is unavailing. The Court acknowledges that

Plaintiffs counsel’s email seemingly displays a failure to check the docket in this case prior

to emailing the Complaint on August 6, 2021, and offers a questionable assertion that

counsel never received the Entry of Appearance of Defendant's counsel. Nonetheless,

three attorneys, including Attorney Foland, did in fact enter their appearance in this case on

July 20, 2021 on the state court docket and via service to Plaintiffs counsel by email or U.S.

mail, so that when Mr. Foland received Plaintiff's counsel's email containing counsel's

incorrect understanding of the procedural posture of this case at that time, Plaintiff's

counsel’s email and delivery of the Complaint to Mr. Foland effectuated service on Mr.

Foland as counsel of record in this case. Further, Attorney Foland’s two-word response to

Plaintiffs counsel (“Thank you”), without acknowledging that he had, in fact, entered his

appearance in this case and therefore could be served with the Complaint of behalf of

Travelers is the kind of sharp practice that this Court will not accept and which will not

support Defendant's argument that the Complaint was not served until August 11, 2021, the

date on which Travelers received the Complaint at their corporate office in Connecticut.

4 Rule 205.4(g)(1)(i) further directs that “[a] paper served electronically is subject to the

certifications set forth in [Rule 205.4(b)(3)].” Defendant has not argued, or presented any evidence, that

Plaintiff's email and the attached Complaint do not contain the signatures, certifications, and, where

applicable, verifications, mandated by subsection (b)(3).

Here, for the reasons set forth herein, Travelers has failed to establish that removal

of this action from the Court of Common Pleas of Luzerne County was timely. Defendant

having failed to meet its burden, and because the Court must strictly construe removal

statutes, with all doubts to be resolved in favor of remand, this action will be remanded to

the Court of Common Pleas of Luzerne County.

IV. CONCLUSION

For the aforementioned reasons, Plaintiffs Motion for Remand (Doc. 5) will be

granted. A separate Order follows. wee

YH Yh

Robert D. Mariani

United States District Judge