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Case 2:12-cv-01866-DSC Document 18 Filed 06/04/13 Page 1 of 8













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AND NOW, this 4th day of June, 2013, upon due consideration of plaintiff’s Motion for

Remand and parties’ submissions in conjunction therewith, IT IS ORDERED that [7] plaintiff’s

motion is granted and pursuant to 28 U.S.C. § 1447(c) this action is remanded to the Court of

Common Pleas of Allegheny County forthwith.

Plaintiff Anthony Denillo (“plaintiff”) initially commenced this action in the Court of

Common Pleas of Allegheny County against defendant Starwood Hotels & Resorts Worldwide,

Inc. (“defendant”), setting forth claims for (1) wrongful termination, (2) violation of public

policy and (3) detrimental reliance. Plaintiff alleged that defendant wrongfully terminated his

employment because he refused to submit to on-site as opposed to off-site drug testing. In

support of these claims plaintiff alleged he was (1) impaired in major life activities without the

use of prescription medications and (2) a rehabilitated drug user, and defendant's conduct

violated state and federal non-discrimination laws pertaining to rehabilitated drugs users or

persons suffering from disability; however, he simply alleged mistreatment because of, among

other things, his disabilities and did not specify identify the federal law providing for the

protection of such rights. See Original Complaint at ¶¶ 12, 28, 29, 40(h), 47, 48, 49.

Case 2:12-cv-01866-DSC Document 18 Filed 06/04/13 Page 2 of 8

Defendant filed preliminary objections to the three counts on December 7, 2009.

Plaintiff filed a response thereto on January 14, 2010, and indicated therein that "[d]efendant has

improperly discriminated against Mr. Denillo, and has violated his rights under the Americans

With Disabilities Act, by refusing to grant him reasonable accommodations for his disabilities."

Plaintiff's Brief in Opposition at 3; see also id. at 7-8 (identifying federal ADA as reflecting

public policy of Pennsylvania). After argument the Court of Common Pleas sustained

defendant's preliminary objections on January 14, 2010, with leave for plaintiff "to file an

amended complaint along the lines discussed at argument on the videotape record." Plaintiff's

amended complaint was due by March 15, 2010.

Plaintiff filed his amended complaint on March 19, 2010. No certificate of service was

filed on that date. Neither the amended complaint received by defendant nor the one filed into

the court record was signed by counsel or verified by plaintiff.1 As a result, defendant elected

not to respond to the amended complaint.

On December 11, 2012, plaintiff’s counsel sent defendant a letter which contained a

certificate of service indicating service was made on March 19, 2010, by first class mail. Upon

receiving this certificate of service, defendant filed a notice of removal pursuant to 28 U.S.C. §§

1331 and 1341 based on federal question jurisdiction. On January 22, 2013, plaintiff filed the

instant motion to remand.

Defendant contends plaintiff never has serviced his amended complaint on opposing

counsel. In this regard it disputes the accuracy of the certificate of service and asserts it did not

become aware of the amended complaint until December 11, 2012, when it received plaintiff's

backdated certificate of service. It further asserts this was the first point that it became aware

that the amended complaint specifically identified the Americans with Disabilities Act (“ADA”)

1 It appears that plaintiff's counsel was unfamiliar with the signature requirements for electronic


Case 2:12-cv-01866-DSC Document 18 Filed 06/04/13 Page 3 of 8

as part of the public policy allegedly violated by defendant, which in turn provided the

foundation for removal. Because the backdated certificate of service provided the first notice to

defendant that the amended complaint had been filed, defendant maintains it had thirty days from

then to remove the action.

In addition, defendant asserts that the specific averments charging that defendant's

conduct was in contravention of the ADA purportedly were the only allegations added to the

original complaint. Thus, defendant argues that if there is no ADA claim, then plaintiff's

amended complaint essentially will be reduced to the original complaint, which was dismissed

by the Court of Common Pleas.

Plaintiff contends there is no federal claim in the amended complaint and defendant had

notice of the allegations pertaining to the ADA well prior to the December 11, 2012, filing of the

certificate of service. First, plaintiff maintains that his allegations pertaining to the ADA are

solely “incidental” to his state law claims of wrongful termination at count II and detrimental

reliance at count III, and no federal claim is set forth in the amended complaint. Plaintiff thus

maintains that an incidental reference to federal law does not supply a basis for removal.

Second, the underpinnings of the ADA as raised in conjunction with plaintiff's wrongful

termination in violation of public policy claim was clearly made known to defendant by way of

plaintiff's brief in opposition to defendant's preliminary objections. The brief was filed and

served in state court on January 14, 2010. Further, plaintiff assertedly served defendant with a

copy of the amended complaint on March 19, 2010, which gave defendant additional notice of

the role of the ADA in formulating plaintiff's amended complaint. Since defendant had notice of

the amended complaint as of March 19, 2010, plaintiff argues that it had thirty days from then to



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The first issue is whether removal was proper under federal question jurisdiction. If it

was, then the second issue is whether the removal was timely.

Removal of a state action to federal court is proper only if the action “originally could

have been filed in federal court.” Caterpillar v. Williams, 482 U.S. 386, 392 (1987); see also 28

U.S.C. § 1441.2 Absent diversity of citizenship, federal-question jurisdiction is required to

support removal. Id. at 392. The question of whether federal question jurisdiction exists is

determined by the “well-pleaded complaint rule,” which requires that a federal question be

“presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, 482 U.S. at

392; see also Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 228 (3d Cir. 1995). Generally,

the well-pleaded complaint rule “makes the plaintiff the master of the claim.” Id. at 392; see also

Trans Penn, 50 F.3d at 228 (same). This rule permits the plaintiff to “avoid federal jurisdiction

by exclusive reliance on state law.” Id. at 392.

It is well settled Athat for a civil action to arise under 28 U.S.C. § 1331(a), the >right or

immunity created by the Constitution or laws of the United States must be an element, and an

essential one, of the plaintiff=s cause of action= and that >the controversy must be disclosed upon

the face of the complaint, unaided by the answer or by the petition for [email protected] Westmoreland

Hospital Association v. Blue Cross of Western Pennsylvania, 605 F.2d 119, 122 (3d Cir. 1979)

(quoting Gully v. First National Bank, 299 U.S. 109, 112-13 (1936)), accord First National Bank

of Aberdeen v. Aberdeen National Bank, 627 F.2d 843 (8th Cir. 1980) (federal law must be

2 The removal statute provides:

. . . 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.”


Case 2:12-cv-01866-DSC Document 18 Filed 06/04/13 Page 5 of 8

essential element of plaintiff=s cause of action to remove on the basis of federal question


Here, plaintiff’s original complaint did not specifically state a federal claim as one of the

enumerated causes of action. Nevertheless, it contained numerous averments which commonly

are used to establish liability under the ADA and it alluded to defendant's asserted failure to

follow federal law prohibiting discrimination, "including inter alia, those dealing with

rehabilitated drug users or persons suffering from disability." Complaint at ¶ 48. When plaintiff

filed his amended complaint, it presented a straightforward allegation that defendant violated

Pennsylvania's public policy by discriminating against plaintiff as a rehabilitated drug user and

failing to abide by his rights under the ADA.

While plaintiff correctly notes that the claims of wrongful termination, violation of public

policy, and detrimental reliance are not federal claims and he can avoid federal jurisdiction by

relying on state law claims, one need not set forth an actual federal claim in order to raise an

essential element of a claim that is grounded in federal law. It is enough if a federal statute must

be construed and applied to make out a claim for relief. See e.g. Westmoreland Hospital

Association, 605 F.2d at 122 ("An action arises under the laws of the United States . . . if it

requires the construction of a federal statute or a distinctive policy of a federal statute requires

the application of federal legal principles for its disposition.") (quoting Lindy v. Lynn, 501 F.2d

1367, 1369 (3d Cir. 1974)). And a claim that is grounded in state law that can be viewed

alternatively as providing a basis for relief under federal law is enough to provide a sufficient

basis for removal. Id. ("The hospitals' complaint, so viewed, reveals alternative bases for relief

against Blue Cross, namely, that the hospitals were entitled to relief under the contract whether it

was interpreted according to state law principles or under the federal mental health statutes.

Because appellants' complaint was based in part on federal statutes, and federal agency


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regulations and interpretations, we conclude that there was jurisdiction under 28 U.S.C. §

1331(a). It is immaterial that at trial appellants relied solely on state law principles to make their

case."). Plaintiff's claims of wrongful discharge and detrimental reliance both can be construed

as state law claims, which if permitted to proceed and proven, would require a construction of

federal law and alternatively establish a violation of the ADA. Thus, there was a sufficient basis

for federal question removal under Westmoreland Hospital Association.

Because there was a basis for removal, it must be determined whether defendant's notice

was timely. It is well-established that the removal statutes are strictly construed against removal

and any doubts must be resolved in favor of remand. Boyer v. Snap-On Tools Corp., 913 F.2d

108, 111 (3d Cir. 1990). The thirty day period for timely removal under § 1446(b) is mandatory

and cannot be extended. Balestrier v. Bell Asbestos Mines, Ltd., 544 F. Supp. 528, 529 (1982).

The timeliness of removal under § 1446(b) is addressed in two separate paragraphs:

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

thirty 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 thirty 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.

If the case stated by the initial pleading is not removable, a notice of

removal may be filed within thirty days after receipt by the defendant, through
service or otherwise, of a copy of an amended pleading, motion, order or other
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).3 Pursuant to Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S.

344 (1999), an initial pleading under the first paragraph is the filing of a complaint, and the thirty

day period begins to run only upon service of process and the receipt of the complaint containing

a basis for removal. Id. at 347-48 ("a named defendant's time to remove [under the first

3 These paragraphs commonly are referred to as the first and second paragraphs of § 1446(b).


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paragraph] 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."). The second paragraph

cannot be used to alter the fundamental requirement that the defendant be made an official party

to the proceeding before the court and subject to participate in the legal proceedings before the

time for removal commences. Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 222 (3d Cir. 2005).

Similarly, the Supreme Court's use of the phrase "initial pleading" in Murphy Bros. to mean the

complaint requires a like meaning to be ascribed to the use of that phrase in the second

paragraph of § 1446(b). Id.

Defendant argues that the initial complaint did not sufficiently raise a basis for federal

question jurisdiction. The engrafting of ADA concepts into the formulation of plaintiff's

wrongful discharge and detrimental reliance claims and the references to federal discrimination

law make this proposition subject to debate. Notwithstanding the room for reasonable jurist to

differ, it will be assumed for the sake of argument that more clarity on plaintiff's reliance on the

ADA was needed to create a basis for removal.

The second paragraph of § 1446(b) requires defendant to remove within thirty days of

receiving notice, by means of a copy of an amended pleading, motion, order, or other paper, that

the action had become removable. State Farm Fire and Cas. Co. v. Valspar Corp., Inc., 824 F.

Supp.2d 923, 929 (D. S. D. 2010); Cabibbo v. Einstein/Noah Bagel Partners, L.P., 181 F.

Supp.2d 428, 431 (E.D. Pa. 2002). As previously noted, plaintiff maintains that his brief in

opposition to defendant's preliminary objections clearly provided notice that plaintiff's public

policy and detrimental reliance claims were based on the underpinnings of the ADA.

The full scope of the type of legal materials that may satisfy the "other paper" component

of the second paragraph remains open to debate. See e.g. Cabibbo, 181 F. Supp.2d at 431. The


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weight of authority holds that materials such as deposition testimony and answers to

interrogatories can qualify as materials which trigger the thirty day period for removal. Id.

(examining cases). As a general matter, most courts in the Third Circuit agree that the formal

filing requirement that Foster v. Mutual Fire, and Inland Ins. Co., 986 F.2d 48 (3d Cir. 2002),

mandates be present for triggering the period under the first paragraph does not apply to the

"other paper" component of the second paragraph. Id. ("With regard to documents more formal,

or more integral to a case, than correspondence between parties, other courts in this circuit have

likewise refused to extend Foster's filing requirement to the second paragraph of § 1446(b).")

(collecting cases).

Here, defendant had entered an appearance in the state court and defended against the

complaint by filing preliminary objections. Plaintiff's brief in opposition to those objections was

filed into that court record on January 14, 2010, and received by defendant within three business

days thereafter at the latest. This formal court filing stated expressly that plaintiff was

maintaining that defendant had "violated his rights under the Americans with Disabilities Act."

This filing, when coupled with the ADA language contained in the initial complaint, made clear

that plaintiff's state-law wrongful termination in violation of public policy and detrimental

reliance claims were undergirded by the ADA in a way that made the potential liability on these

claims consistent with liability under the ADA. Consequently, the thirty day period began to run

as of that date and removal on December 21, 2012, was untimely.

s/ David Stewart Cercone
David Stewart Cercone
United States District Judge

cc: Robert L. Downey, Jr., Esquire

Erin J. McLaughlin, Esquire
John F. Quinn, Esquire
(Via CM/ECF Electronic Mail)