Opposition Brief — U. S. Healthcare, Inc. v. Dukes

No. 95-442 OCT 13 1999

In The beeen mee

Supreme Court of the United States

October Term, 1995

.

U.S. HEALTHCARE, INC.,

Petitioner,

CECILIA DUKES, Trustee Ad Litem of the

Estate of Darryl Dukes, Deceased,

Respondent.

¢

U.S. HEALTHCARE, a/k/a THE HEALTH MAINTENANCE

ORGANIZATION OF PENNSYLVANIA/NJ,

Petitioner,

SERENA MARY VISCONTI, Deceased, by LINDA and

RONALD VISCONTI, as Administrators of the Estate

of SERENA MARY VISCONTI, Deceased and

LINDA & RONALD VISCONTI, in their own right,

Respondents.

o

On Petition For Writ Of Certiorari

To United States Court Of Appeals

For The Third Circuit

*

BRIEF IN OPPOSITION FOR RESPONDENTS, LINDA

AND RONALD VISCONTI, ADMINISTRATORS OF THE

ESTATE OF SERENA MARY VISCONTI, DECEASED

¢

ALAN SCHWARTZ, Esquire

STEPHEN J. PoxiniewskI, JR., Esquire

Counsel of Record for Respondent

Anapol, Schwartz, Weiss & Cohan

1900 Delancey Place

Philadelphia, PA 19103

(215) 735-1130

Fax: (215) 735-2024

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether this Court should issue a writ of certiorari

to review United States Court of Appeals for the Third

Circuit’s decision that there was no removal jurisdiction

based upon an ERISA pre-emption defense to a state

court action asserting negligence in the actual rendering

of medical care since the plaintiff was not making a claim

or seeking any type of relief within the scope of ERISA’s

civil enforcement provisions.

il

TABLE OF CONTENTS

Page

QUESTION PIG CEIDy 60sec véeccaeeecsw eked i

FABLE OF GRa Renee cans cocinedccunctaveust bees ii

TABLE CF AU ye eee ess dec cd canesatuctsvepeees iii

COUNTERSTATEMENT OF THE CASE ............ 1

A. COUNTERSTATEMENT OF FACTS .......... 1

B. PROCRERaes MORRO 6h cw wbacdnsccccctews 2

REASONS FOR DENYING THE WRIT............. 4

CONCLUSION . os ciunticcvscucses beeie a ieasleesncwes 14

iii

TABLE OF AUTHORITIES

Page

Cases CrTep:

Alexander v. Electronic Data Systems, Corp., 13 F.3d

_., J: St. Sapo ep eae 5

Anderson v. Electronic Data System Corp., 11 F.3d

1311 (5th Cir.), cert. denied, __ US. dain Bee 3.

* | BSCS Sn RS anne i 4,14

Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S. Ct.

me ge | oy i nT 7

Corcoran v. United Healthcare, Inc., 965 F.2d 1321

(Sth Cir.), cert. denied, 113 S. Ct. 812 (1992) ....13, 14

Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3d Cir.

MINE aE kd aa Tie on as on kis a ow heh ek 4

Dukes v. U.S. Healthcare, Inc., 848 F. Supp. 39 (E.D.

Pa. 1994), rev'd, 57 F.3d 370 (3rd Cir. | 3

Franchise Tax Bd. v. Construction Laborers Vacation

pres Ge Was E AIOOIN os ois oace so haces & 5,4, ii

Hubbard v. Blue Cross & Blue Shield Association, 42

F.3d 942 (5th Cir.), cert. denied, Blue Cross & Blue

Shield Association v. Hubbard, __ USS. Bees ¢

eee ee TES 5 she be ety ie ak. 9, 10

Lupo v. Human Affairs International, Inc., 28 F.3d

Ms 6 SS dwhGs - cci'sve snk ss cuacri 3, 5, 14

Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58

MRS Betis Nis 5 ga iats awd wv cwbu.e Chama « ths passim

McCoy v. Massachusetts Institute of Technology, 950 F.2d

13 (1st Cir.), cert. denied, 504 U.S. 910 (1992)...... 12, 13

iv

TABLE OF AUTHORITIES - Continued

Page

New York State Conference of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co., Nos. 93-1408,

93-1414, 93-1415, 1995 WL 238409 at 15 (April

PE, TONOE cc eanae Ue evi Be eRe ee aeAs FEET EON ee ea 9

Olson v. General Dynamics Corp., 960 F.2d 1418 (9th

Cir.), cert. denied, 504 U.S. 986 (1992).............. 12

Rodriguez v. Pacificare of Texas Inc., 980 F.2d 505

ti gt ae. Oo! Er PEs Cerrar ee pene g : ha 10, 11

Settles v. Golden Rule Ins. Co., 927 F.2d 505 (10th

Cie. S098) oo is bess epis ccd eave tee 9

Shiffler v. Equitable Life Assurance Society of U.S.,

SOB BA 70 Ce Cee BOG en aces cag hese cde ves sie. 11

Stevens v. Employer-Teamsters Joint Council No. 84

Pension Fund, 979 F.2d 444 (6th Cir. 1992)......... 11

Visconti by Visconti v. U.S. Healthcare, 857 F. Supp.

1097 (E.D. Pa. 1994), rev’d, Dukes v. U.S. Health-

care, 7 Foe FSO Te Cie Te ai ws cisco cs. es. 3

Warner v. Ford Motor Co., 46 F.3d 531 (6th Cir.

to) er I ot eee rs PA rie epee 4,5, 7, 8, 14

Zuniga v. Blue Cross and Blue Shield of Michigan, 52

Ae ae. | RP ere er ree er 4

STATUTES:

Oe SAM MEE « 6 nv 5-05 hs a cqskedeueuesexvecsbeael *

Py RE Bs Be sein ina s bc es bnipedsavsievhandsndeaceeen 3

29 UGA BUI hoe os trevadod 3, 4, 6, 9, 11, 12, 13

9 USE. Bee... sce 3, 8, 10

a ert ine it

COUNTERSTATEMENT OF CASE

A. COUNTERSTATEMENT OF FACTS

Ronald and Linda Visconti (“Viscontis”) are the bio-

logical parents of Serena Mary Visconti, Deceased, who

was stillborn on August 29, 1991. Incident to Mr. Vis-

conti’s employment, the Viscontis were participants in

Petitioner, U.S. Healthcare’s (“USHC”) Health Mainte-

nance Organization. The Viscontis have alleged that

USHC held itself out as a corporate health care provider

employing agents, servants and employees who possess

special skill and training for the purpose of rendering

health care services to its participating members. The

Viscontis further alleged that Peter M. Wisniewski, M.D.

was held out and represented to them by USHC to be a

competent and qualified participating obstetrician.

Mrs. Visconti first saw Dr. Wisniewski in connection

with her pregnancy with the decedent on February 20,

1991. During the third trimester of the pregnancy, Mrs.

Visconti developed signs and symptoms of preeclampsia.

Tragically, Dr. Wisniewski took no action whatsoever

even when Mrs. Visconti’s diastolic blood pressure

became severely elevated on August 14, 1991. On August

28, 1991, Mrs. Visconti returned for a routine prenatal

visit at approximately the 37th week of the pregnancy. At

that time no fetal heart beat could be detected. Mrs.

Visconti’s blood pressure was recorded as 160/100 and

Dr. Wisniewski for the first time noted that she suffered

from severe edema (a symptom of preeclampsia). Follow-

ing the office visit, Mrs. Visconti was admitted to Penn-

sylvania Hospital with signs and symptoms of severe

preeclampsia. On the next day, August 29, 1991, Mrs.

Visconti delivered Serena Mary Visconti stillborn, a fully

developed baby girl with no gross congenital abnor-

malities at 37 weeks gestation weighing at or around 5

pounds, 9 ounces.

B. PROCEDURAL HISTORY OF CASE

The Viscontis commenced a medical malpractice

action by filing a complaint against USHC in the Court of

Common Pleas of Philadelphia County, Pennsylvania.

The Viscontis alleged in the Complaint that Serena Mary

Visconti was stillborn due to the negligence in rendering

obstetrical care to Mrs. Visconti by USHC and its agent

Dr. Wisniewski. Dr. Wisniewski was sued in a separate

civil action and is not a party to the case brought against

USHC. The Viscontis did not assert any contract claims

against USHC nor did they allege any claims in connec-

tion with the denial of benefits. Their lawsuit is an ordi-

nary medical malpractice case arising from the obstetrical

care rendered to Mrs. Visconti during her pregnancy with

the decedent.

USHC filed a timely Notice of Removal of this case

with the district court for the Eastern District of Pennsyl-

vania asserting that jurisdiction existed based upon its

contention that the Viscontis’ claims against it were pre-

empted by the Employee Retirement Income Security Act

of 1974, 29 U.S.C. §1001, et seg. (“ERISA”). Thereafter,

based upon the same grounds, USHC filed a Motion to

Dismiss. The Viscontis filed a timely Motion to Remand

to the state court contending that removal was improper

and ERISA did not pre-empt their medical negligence

claims. USHC admitted that the only basis for removal

was federal question jurisdiction under 28 U.S.C.

§1441(b).

On June 9, 1994, the district court denied the Vis-

contis’ Motion to Remand and granted USHC’s Motion to

Dismiss. The district court held that the case was prop-

| erly removed to federal court and the Viscontis’ negli-

gence claims were pre-empted by §514(a) of ERISA (29

U.S.C. §1144(a)). Visconti by Visconti v. U.S. Healthcare,

Inc., 857 F. Supp. 1097 (E.D. Pa. 1994), rev'd, Dukes v. U.S.

Healthcare, Inc., 57 F.3d 350 (3d Cir. 1995).

A timely appeal of the district court’s decision was

filed with the Court of Appeals for the Third Circuit.

Thereafter, the Viscontis’ appeal was consolidated with

the appeal taken by the plaintiff in Dukes v. U.S. Health-

care, Inc., 848 F. Supp. 39 (E.D. Pa. 1994), rev'd, 57 F.3d 370

(3d Cir. 1995).

In reversing the decisions of the district court, the

Third Circuit applied the legal analysis this court adopted

in Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58

(1987) to decide whether removal to district court was

proper on the basis of an ERISA pre-emption defense

being asserted by the defendant: “The Metropolitan Life

complete-pre-emption exception, on the other hand is

concerned with a more limited set of state laws, those

which fall within the scope of ERISA’s civil enforcement

provision, §502 [29 U.S.C. §1132]. State law claims which

fall outside of the scope of §502, even if pre-empted by

§514(a), are still governed by the well-pleaded compliant

rule and, therefore, are not removable under the com-

plete-pre-emption principles established in Metropolitan

Life”. (App. 13a). Relying in part on Lupo v. Human Affairs

iii

International, Inc., 28 F.3d 269 (2d Cir. 1994) and after

extensive review of USHC’s contention that the plaintiffs’

claims were within the scope of §502(a), the Third Circuit

held that: “As in Lupo, the plaintiffs’ claims in these cases

do not concern a denial of benefits due or a denial of

some other plan created right. Thus, the claims here, like

those in Lupo, bear no significant resemblance to the

claims described in §502(a)(1)(b)”. (App. 29a-30a). Dukes

v. U.S. Healthcare, Inc., 57 F.3d 370 (3d Cir. 1995). (App.

13a)

USHC has filed its Petition for Certiorari from the

decision of the Court of Appeals for the Third Circuit.

+

REASONS FOR DENYING THE WRIT

The decision by the Third Circuit Court of Appeals in

this matter was based upon the precise facts of these

consolidated cases and represents a faithful application of

this Court’s decision in Metropolitan Life and Franchise Tax

Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1

(1983). Furthermore, contrary to the Petitioner’s claim,

the decision by the Third Circuit Court of Appeals in this

case does not conflict with decisions of other circuit

courts. To the contrary, the Third Circuit’s legal analysis

of whether the district court properly excised removal

jurisdiction is consistent with the decisions of other cir-

cuit courts which have specifically addressed the applica-

tion of Metropolitan Life to similar factual situations:

Zuniga v. Blue Cross and Blue Shield of Michigan, 52 F.3d

1395 (6th Cir. 1995); Warner v. Ford Motor Co., 46 F.3d 531

(6th Cir. 1995); Anderson Electronic Data Systems Corp., 11

F.3d 1311 (5th Cir. 1994), cert. denied, _ U.S. __, 115 S..

Ct. 55 (1994); Lupo, supra. In each case, the court applied

the same legal analysis as the Third Circuit in determin-

ing whether plaintiff’s state court action was properly

removed on the basis of an ERISA pre-emption defense.

Thus USHC’s real disagreement with the Third Circuit's

decision is its belief that the Third Circuit misapplied

Metropolitan Life to the facts of this case. However, assum-

ing arguendo that USHC is correct, which it is not, such

can not be a basis for review by this Court. Rule 10.1 of

the Rules of the Supreme Court of the United States.

Finally, the Third Circuit’s decision does not foreclose

USHC from raising its ERISA pre-emption defense, but

only leaves it to the state court to decide subject to

ultimate review by this court. Warner, supra at 535.

THE THIRD CIRCUIT APPLIED THE ACCEPTED

INTERPRETATION OF METROPOLITAN LIFE

TO THE FACTS OF THESE CASES

In Franchise Tax Bd. this Court held that ERISA pre-

emption without more does not convert a state law claim

into an action arising under federal law. Id. 463 U.S. at

25-27, 77 L.Ed.2d 420, 103 S. Ct. 2841; Alexander v. Elec-

tronic Data System, Corp., 13 F.3d 940, 944 (6th Cir. 1994).

Then in Metropolitan Life this Court went on to hold that a

state claim which was not only pre-empted by ERISA, but

which also came within the scope of the civil enforcement

provisions of ERISA, would be subject to removal to

federal court: “Indeed as we have noted, even an

‘obvicus’ pre-emption defense does not, in most cases,

create removal jurisdiction. In this case, however, Con-

gress has clearly manifested an intent to make causes of

action within the scope of the civil enforcement provi-

sions of §502(a) removable to federal court.” Id. at 66, 95

L.Ed.2d 55, 107 S. Ct. 1542. The Court found that Con-

gress intended this result based in part upon the follow-

ing language from the Congressional Conference Report

on ERISA describing the civil enforcement provision of

§502(a):

“[W]ith respect to suits to enforce benefit rights

under the plan or to recover benefits under the

plan which do not involve application of the

title I provisions, they may be brought not only

in US district courts but also in State courts of

competent jurisdiction. All such actions in Fed-

eral or State courts are to be regarded as arising

under the laws of the United States... .

Id. at ...,. 3 Led2d ..., 107 5. Ct. 14.

Applying Metropolitan Life to the instant matter, the

Third Circuit correctly held that the Viscontis’ negligence

claims did not fall within the scope of the civil enforce-

ment provisions of §502(a) of ERISA; and therefore, the

district court lacked removal jurisdiction over the Vis-

contis’ state law claims. This decision is a recognition of

the distinction drawn by this Court in Metropolitan Life

between suits asserting a §502(a) claim “to enforce benefit

rights under the plan or to recover benefit rights under

the plan” and those actions, such as involved in the

instant matter, which seek to recover for deficiencies in

medical care rendered to a plan participant. The Third

Circuit correctly found that the Viscontis are not asserting

any type of §502(a) claim since they are seeking compen-

satory damages for personal injuries arising not from the

denial of plan benefits or the administration of an ERISA

3

plan, but for deficiencies in the medical care provided by the

defendant health care providers. (App. 17a-30a). Since the

Viscontis’ claims do not fall within the scope of ERISA’s

civil enforcement provision, under Metropolitan Life the

district court lacked removal jurisdiction over their state

court action and the Third Circuit properly ordered

remand.

THE THIRD CIRCUIT’S DECISION PROPERLY

LEAVES THE ISSUE OF ERISA PRE-EMPTION TO BE

DECIDED BY STATE COURT WHICH IS THE PROPER

AND COMPETENT FORUM TO DECIDE THE ISSUE

USHC contends that this Court should grant review

so as to consider whether only federal courts should

decide the issue of whether ERISA pre-emption defense

applies to state law damage claims (Petition at 16). How-

ever, it is settled law that the issue of federal pre-emption

is not reserved exclusively for federal courts. Caterpillar,

Inc. v. Williams, 482 U.S. 386, 107 S. Ct. 2425, 96 L.Ed.2d

318 (1987). The Petitioner’s request for review is prem-

ised on its own confusion as to the doctrine of jurisdic-

tion and federal pre-emption. The decision that the

Viscontis routine medical negligence claims are pre-emp-

ted by ERISA is properly within the purview of state

courts, with that decision subject to ultimate review by

this Court. Warner, supra at 535.

Removal and pre-emption are two distinct

concepts. “The facts that a defendant might ulti-

mately prove that a plaintiff’s claims are pre-emp-

ted” — for example under §1144(a) - “does not

establish that they are removable to federal court.”

Caterpillar, 482 U.S. at 398, 107 S. Ct. at 2432. The

federal pre-emption defense in such non-remov-

able cases would be decided in state court and

would be subject to review on certiorari in the

U.S. Supreme Court. Removal jurisdiction based

on original federal jurisdiction under §1441 is

therefore not as broad as federal appellate juris-

diction which extends to federal defenses.

Id. The principles of federalism and respect for state

sovereignty, as well as the right of the plaintiff to be

master of his claim mandates that for their state common

law actions the state court initially decide whether the

plaintiff’s claims are pre-empted by §514(a) of ERISA.

There is a presumption that state courts are capable of

faithfully applying federal law and will not subvert

enforcement of ERISA. Warner, supra at 534. Furthermore,

the defendant’s suggestion that the district court's juris-

diction should be co-extensive with ERISA pre-emption

(Petition at 12, 14) is contrary to this Court’s established

precedent in both Metropolitan Life and Franchise Tax Bd.,

and can not afford the basis for review of the Third

Circuit’s decision in these consolidated cases.

THE THIRD CIRCUIT’S DECISION IS

CONSISTENT WITH THE ACCEPTED LEGAL

INTERPRETATION OF METROPOLITAN LIFE AND

IS NOT IN CONFLICT WITH THE DECISIONS

OF OTHER CIRCUIT COURTS WHICH HAVE

APPLIED THAT CASE TO SIMILAR CLAIMS

USHC’s contentions that the Third Circuit’s decision

is in conflict with that of other circuit courts is erroneous.

An examination of the decisions relied upon by the Peti-

tioner reveals that each case is distinguishable on its facts

from the instant matter and there is no true conflict

between this case and the decision of other circuit courts

on this issue. For an example of true conflict see this

Court’s decision in New York State Conference of Blue Cross

& Blue Shield Plans v. Travelers Ins. Co., Nos. 93-1408,

93-1414, 93-1415, 1995 WL 238409 at *15 (April 26, 1995).

All of the cases relied upon by the Petitioner to find a

conflict with the Third Circuit’s decision in these consoli-

dated cases are readily distinguishable and do not repre-

sent a true conflict necessitating review by this Court:

(1) Settles v. Golden Rule Insurance Co., 927 F.2d 505

(10th Cir. 1991). In the first place, this case did not

involve the issue of removal because the plaintiffs had

commenced the action in district court. However, more

importantly, Settles, as the Tenth Circuit recognized,

involved a claim arising from “a direct result of the

termination of plan benefits. ...” Id. at 509. In other

words, a benefits determination under an ERISA gov-

erned employee benefits plan. Thus, it was a §502(a)

claim for benefits due under a plan. Such a claim is

identical to that involved in Metropolitan Life and not the

type of claim asserted by the Viscontis.

(2) Hubbard v. Blue Cross & Blue Shield Ass'n, 42 F.3d

942 (5th Cir. 1995), cert. denied, Blue Cross & Blue Shield

Association v. Hubbard, __ U.S. ___, 115 S. Ct. 2276 (1995).

USHC’s reliance on Hubbard is completely misplaced.

Hubbard involved two distinct claims arising from the

denial by the plaintiff’s insurer to provide coverage for

certain requested cancer treatments. The first was a fraud

claim based upon the insurer’s alleged use of secret

guidelines for the approval of medical treatment; the

second involved a claim of fraudulent inducement by the

insurer in portraying itself as an honest company which

would honor its commitments to its policyholders and

10

not engage in deceptive trade practices. In finding that

ERISA pre-empted the first claim, but not the second, the

Fifth Circuit only touched upon whether there existed

removal jurisdiction under Metropolitan Life, in a footnote.

Id. at 945 n.5. Moreover, in deciding that the plaintiff’s

first claim was pre-empted, the Fifth Circuit premised it

upon a finding that “the essence of Hubbard’s [secret

guidelines] claim is that her benefits under the plan were

improperly denied.” Id. at 946. Furthermore, implicit in

the Hubbard Court finding that ERISA did not pre-empt

plaintiff’s second claim was that it did not seek recovery

of benefits due under an employee welfare benefits plan.

Id. at 947. The Hubbard decision is not in conflict with the

Third Circuit’s decision but represents the same type of

analysis only applied to the actual determination of

whether the plaintiff’s claims were pre-empted by §514(a)

of ERISA.

(3) Rodriguez v. Pacificare of Texas, Inc., 980 F.2d 1014

(5th Cir. 1993), cert. denied, __. U.S. __, 113 S. Ct. 2456

(1993). Once again, although the plaintiff in Rodriguez

asserted several state law claims, removal was proper

because the “state law claims, at bottom, result from

dissatisfaction over Pacificare’s handling of his medical

claims.” Id. at 1017. The Fifth Circuit recognized this

consideration concerning removal jurisdiction when it

noted at the outset of the decision that “[t]hese claims

stem from Pacificare’s refusal to reimburse Rodriguez for

medical expenses he incurred.” Id. at 1016. Removal was

proper in Rodriguez, just as in Metropolitan Life, not solely

because ERISA pre-empted plaintiff’s claims, but because

the plaintiff was also asserting a claim within the scope of

ERISA’s civil enforcement provision, unlike in the instant

pan sere rene ee

11

matter. Therefore, Rodriguez is consistent with and does

not conflict with the Third Circuit’s decision in this case.

(4) Shiffler v. Equitable Life Assurance Society of U.S.,

838 F.2d 78 (3d Cir. 1988). This Third Circuit decision

does not conflict with the decision of the same court in

the case sub judice. Shiffler involved a claim to recover

death benefits under employee welfare benefit plans gov-

erned by ERISA. Removal of the plaintiff’s state law

action to federal court was supported not only on the

basis that the plaintiff’s action “was to recover benefits

and enforce rights under the employee benefits plan, and

thus, the suit was essentially an ERISA action within the

district jurisdiction,” but the Court also found that the

district court had diversity jurisdiction over the parties.

Id. at 82. Thus, in Shiffler removal was proper and there is

no conflict with the Third Circuit decision in this case

since Mrs. Shiffler was asserting a §502(a) claim. Id.

(5) Stevens v. Employer-Teamsters Joint Council, 979

F.2d 444 (6th Cir. 1992). As with other cases relied upon

by U.S. Healthcare to find a conflict, Stevens did not even

involve the issue of the propriety of removal to federal

court of an action commenced in state court. The case was

commenced in district court by the plaintiff to recover

pension benefits asserting jurisdiction inter alia, under

ERISA, but which the Sixth Circuit rejected. Id. at 449.

Therefore, on this basis alone it is distinguishable from

the Third Circuit’s decision in the instant matter. Further-

more, the Sixth Circuit suggestion, but not holding, that

district court jurisdiction should be co-extensive with

ERISA pre-emption is flatly at odds with this Court’s

pronouncements in both Franchise Tax Bd. and Metropolitan

Life.

12

(6) Olson v. General Dynamics Corp., 960 F.2d 1418,

(9th Cir. 1991), cert. denied, 504 U.S. 986 (1992). This case

cannot create a conflict between the Third Circuit and

Ninth Circuit because the Olson Court did not address in

any manner whether removal was proper. This decision

contained no discussion whether removal of the plain-

tiff’s state court action was proper. It appears that both

the district court and the Ninth Circuit only addressed

the issue of whether plaintiff’s state law claims were pre-

empted by ERISA. Indeed, Metropolitan Life was only

mentioned in passing by the Ninth Circuit and no discus-

sion of its applicability to the fact of Olson was made by

the Ninth Circuit. However, although the Ninth Circuit

stated Olson was not asserting a §502(a) claim under

ERISA, the essence of Mr. Olson’s claim seemed to be that

he was not receiving the benefits that were due him

under his employer’s ERISA plan. Id. at 1421. Therefore,

Olson can not be read as to be in “conflict” with the Third

Circuit decision in this case.

(7) McCoy v. Massachusetts Institute of Technology,

950 F.2d 13 (1st Cir. 1991), cert. denied, 504 U.S. 910 (1992).

This case is readily distinguishable on its facts from the

instant matter, and therefore, cannot lend support to a

claim of conflicting circuit court decision on the scope of

removal jurisdiction under ERISA. McCoy involved the

determination of whether the Massachusetts mechanics

lien statute as enforced by an employee welfare benefits

plan was pre-empted by ERISA. Although the underlying

action was removed to federal court from Massachusetts

state court, the First Circuit only considered the propriety

of removal in a footnote and did not discuss how Metro-

politan Life applied to the facts of that case. 950 F.2d at 15,

13

n.1. Given the absence of any discussion by the First

Circuit of the propriety of removal and that the claim

involved in McCoy bears no similarity to the claims

asserted by the Viscontis, renders McCoy inapposite to

the instant case. Given the clear distinction between the

two cases, McCoy does not represent the kind of conflict

between circuit courts which necessitated this Court’s

review.

(8) Corcoran v. United Healthcare, Inc., (Sth Cir. 1992),

cert. denied, 113 S. Ct. 812 (1992). Although U.S. Health-

care places great reliance on Corcoran to base its claims of

a conflict among the circuit courts over the interpretation

of Metropolitan Life, the cases are easily reconciled. As the

Third Circuit recognized (App. 27a-28a), Corcoran is

readily distinguishable since it involved a claim that cer-

tain ERISA plan benefits were denied the plaintiff, which

denial the plaintiff claimed caused the physical injury for

which suit was brought. Given this factual scenario the

plaintiff in Corcoran was clearly making a claim within

the scope of §502(a); and therefore, Corcoran is entirely

consistent with the Third Circuit’s analysis of Metro-

politan Life. The different results are not due to conflicting

interpretations of the holding of Metropolitan Life, but in

its application to the differing facts of the cases as the

Third Circuit correctly perceived: “Stated another way,

unlike Corcoran, there is no allegation here that the

HMO’s denied anyone any benefits that they were due

under the plan. Instead the plaintiffs here are attempting

to hold the HMO’s liable for their role as the arrangers of

their decedent’s medical treatment.” (App. 28a-29a).

Thus, as correctly recognized by the Third Circuit deci-

sion, the different results in the two cases stems from the

14

difference in the facts of the two cases. Accordingly, there

is no conflict between the Third Circuit’s decision and the

Corcoran decision which requires review by this Court.

Finally, as conceded by USHC (Petition at 11), the

Third Circuit’s decision is consistent with the legal anal-

ysis utilized by the Courts of Appeal of the Second, Fifth

and Sixth Circuits in connection with cases similar to the

instant matter. Warner, supra at 535; Anderson, supra at

1314; Lupo, supra at 272. A review of these cases makes

clear that USHC’s disagreement with the Third Circuit's

decision does not stem from any conflict with the Court’s

interpretation of Metropolitan Life, but from the applica-

tion of it to the facts of this case. However, such is not

sufficient to require review by this Court.

CONCLUSION

The Petition for Writ of Certiorari to the Court of

Appeals for the Third Circuit should be denied for the

following reasons: (1) The decision of the Third Circuit is

a faithful interpretation and application of this Court’s

decision in Metropolitan Life governing the proper scope

of removal jurisdiction based upon a claim of ERISA pre-

emption; (2) The Third Circuit’s decision is consistent

with the interpretation and application of Metropolitan

Life by the Courts of Appeals of the Second, Fifth and

Sixth Circuits; (3) There is no true conflict between the

Third Circuit’s decision and that of other Circuit Courts

that have addressed the issue of removal jurisdiction

based upon ERISA pre-emption defense; (4) The well

established precedent of this Court is that an ERISA

15

pre-emption defense will not itself create federal question

jurisdiction under 28 U.S.C. §1441(b) allowing removal of

a state court action; and (5) The Third Circuit’s decision

does not foreclose the defense of ERISA pre-emption but

only properly leaves the decision of that issue to state

court subject to ultimate review by this Court.

Respectfully submitted,

ALAN ScHwartz, Esquire

STEPHEN J. POKINIEWSKI, JR., Esquire

Counsel of Record for Respondent

Anapol, Schwartz, Weiss & Cohan, P.C.

1900 Delancey Place

Philadelphia, PA 19103

(215) 735-1130

Fax: (215) 735-2024