ABINGTON TOWNSHIP v. CROWN CASTLE NG EAST LLC

Filing 16

MEMORANDUM AND ORDER THAT PLAINTIFF'S MOTION TO REMAND IS GRANTED. THIS CASE IS REMANDED TO THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY; ETC.. SIGNED BY HONORABLE JOHN R. PADOVA ON 1/4/17. 1/5/17 ENTERED AND E-MAILED, COPY TO MD, MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ABINGTON TOWNSHIP
v.
CROWN CASTLE NG EAST LLC

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CIVIL ACTION

NO. 16-5357

MEMORANDUM
Padova, J.

January 4, 2017

Plaintiff Abington Township (the “Township”) commenced this action against Defendant
Crown Castle NG East LLC in the Court of Common Pleas of Montgomery County, asking that
Defendant be enjoined from installing telecommunications poles, antennas and/or cellular nodes in
the Township without first complying with any and all applicable Township Codes, including the
Township’s Zoning and Telecommunications Codes. Defendant removed the action to this
Court, asserting that we have both diversity jurisdiction and federal question jurisdiction over the
matter. The Township has filed a Motion to Remand. For the following reasons, we grant the
Motion and remand the case to the Court of Common Pleas of Montgomery County.
I.

BACKGROUND
The Complaint in Equity alleges that, on July 22, 2016, Defendant sent a letter to the

Township, expressing its desire “to ‘install, operate, and maintain fiber optic cable and associated
equipment, including optical converters and antennas . . . on, over and under the public way in the
Township in connection with the provision of telecommunications provided by [the Defendant] as
a “carrier’s carrier” for its wireless carrier customers.’” (Compl. ¶ 28 (second alteration in
original) (quoting Compl. Ex. C at 1).) However, prior to constructing, installing, operating,
maintaining and/or locating such equipment in the Township, Defendant must obtain applicable
permits, file engineering details and maps, submit evidence of compliance with applicable

engineering standards, and arrange for scheduled inspections of its activities in the Township.
(Id. ¶ 41.)

In addition, the Township’s Zoning Code requires, inter alia, that Defendant

demonstrate that any affected towers or antennas meet certain Township aesthetic, height and light
requirements, as well as federal standards and the standards of the Township’s Building Code.
(Id. ¶ 42.) Pursuant to the Township’s Telecommunications Code, Defendant must also obtain a
license, register with the Township, pay registration fees, and demonstrate that the planned activity
will not endanger the health, safety, and welfare of Township residents. (Id. ¶ 43.)
On August 8, 2016, the Township advised Defendant that, prior to engaging in any work, it
would need to enter into a lease agreement with the Township and that the lease must be
considered and approved by the Township Board of Commissioners. (Id. ¶¶ 45-46; Compl. Ex. D
at 1.) It further advised Defendant that it would need to either demonstrate that the installations
complied with the Zoning Code or obtain variances from the applicable Code requirements.
(Compl. ¶¶ 47-49; Compl. Ex. D. at 1.) The next day, a representative of the Township met with
two representatives of Defendant and reiterated the prerequisites to Defendant commencing the
requested work.

(Compl. ¶ 50.)

Instead of agreeing to those requirements, however,

Defendant’s representatives advised the Township that it would begin “constructing, installing,
operating, maintaining and/or locating . . . cellular poles, antennas, and/or nodes in the Township”
on August 12, 2016, without complying with the stated requirements. (Id. ¶ 51.) Thereafter,
counsel for both parties engaged in discussions regarding the parties’ impasse, and Defendant’s
counsel agreed to provide the Township with five days’ notice before Defendant performed any of
the requested activity. (Id. ¶¶ 53-54.) However, on October 4, 2016, Defendant’s counsel
advised the Township that it would not provide such notice after all. (Id. ¶ 55.) Furthermore,
Defendant made clear that it would commence work in the Township at an unknown date and time.

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(Id. ¶ 57.) By proceeding in this fashion, Defendant has failed to comply with the Township
Codes, which deprives the Township of the ability both to oversee Defendant’s activity and to alert
its residents of any work to be done. (Id. ¶¶ 58-60.)
The Complaint alleges that Defendant’s actions endanger the health, safety and welfare of
Township residents because, inter alia, the Township has no way of knowing if Defendant’s
activities are being conducted in a safe manner; there is a risk that telecommunications poles,
antennas or nodes will fall due to improper construction or installation; installed equipment could
obstruct sight lines at intersections or vehicular thoroughfares; and any emergency caused by the
installed equipment would require the involvement of Township law enforcement. (Id. ¶¶ 61-70.)
Thus, to protect the health, safety and welfare of Township residents and to ensure compliance
with its Codes, the Complaint requests equitable relief in the form of an order requiring Defendant
to “cease and desist from installing cellular nodes on telephone poles or installing telephone poles
for the purpose of installing . . . poles, antennas and/or nodes in the Township without first
complying with any and all applicable Township code[s].” (Id. ¶ 76 and Wherefore Clause.)
In conjunction with the Complaint, the Township also filed a Petition for a Preliminary
Injunction, seeking the same injunctive relief it sought in the Complaint. On October 5, 2016, the
Montgomery County Court of Common Pleas issued an ex parte temporary restraining order,
prohibiting Defendant from installing cellular nodes on telephone poles or installing telephone
poles for the purpose of installing antennas and/or nodes pending a final hearing. Eight days later,
on October 13, 2016, Defendant removed the action to this Court.
Defendant asserts that we have both diversity and federal question jurisdiction over this
case. The Township argues in its Motion to Remand that we do not have subject matter
jurisdiction because the amount in controversy does not exceed the $75,000.00 jurisdictional

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threshold necessary for diversity jurisdiction and because there is no basis for federal question
jurisdiction.
II.

LEGAL STANDARD
Generally, a defendant may remove a civil action filed in state court so long as the federal

court would have had original jurisdiction over the matter had it been filed in federal court. 28
U.S.C. § 1441(a). The defendant bears the burden of establishing removal jurisdiction. Boyer v.
Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990); see also Frederico v. Home Depot, 507
F.3d 188, 193 (3d Cir. 2007) (stating that the removing party “bears the burden of showing, at all
stages of the litigation, that the case is properly before the federal court” (citations omitted).
Moreover, courts strictly construe the removal statutes and “‘all doubts should be resolved in favor
of remand.’” Boyer, 913 F.2d at 111 (quoting Steel Valley Auth. v. Union Switch & Signal Div.,
809 F.2d 1006, 1010 (3d Cir. 1987)).
III.

DISCUSSION
A.

Diversity Jurisdiction

Defendant contends that we have diversity jurisdiction over the case because the parties are
diverse and the amount in controversy exceeds the $75,000.00 jurisdictional threshold. See 28
U.S.C. § 1332(a). The Township does not dispute that it is diverse from Defendant because the
Township is a citizen of Pennsylvania and Defendant is a citizen of Delaware and Texas. The
Township contends, however, that the amount in controversy does not meet the $75,000.00
threshold.
In ascertaining the amount in controversy in a removal case, a court must first look to the
complaint. Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 398 (3d Cir. 2004). When,
however, the complaint does not demand a specific sum, a court may permit removal if it is

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established, by a preponderance of the evidence, that the amount in controversy exceeds
$75,000.00. 28 U.S.C. § 1446(c)(2)(B); see also Dart Cherokee Basin Operating Co. v. Owens, -U.S. -- , 135 S. Ct. 547, 554-55 (2014). Because the burden of establishing jurisdiction always
lies with the removing defendant, it is the defendant who must establish the requisite jurisdictional
amount. See Kaufman v. Allstate New Jersey Ins. Co., 561 F.3d 144, 151 (3d Cir. 2009) (citing
Frederico, 507 F.3d at 193).
Where the Complaint seeks only injunctive relief, the amount is controversy “is often not
readily determinable” and must be determined by the “‘value of the object of the litigation,’”
which is the “value of the rights which the plaintiff seeks to protect.”

Columbia Gas

Transmission Corp. v. Tarbuck, 62 F.3d 538, 539, 541 (3d Cir. 1995) (quoting Hunt v. Washington
Apple Advert. Comm’n, 432 U.S. 333, 347 (1977)) (additional citation omitted); see also Angus v.
Shiley Inc., 989 F.2d 142, 146 (3d Cir. 1993) (stating that the amount in controversy must be based
on “a reasonable reading of the value of the rights being litigated” (citations omitted)). In valuing
those rights, the proper measure is the “monetary value of the benefit that would flow to the
plaintiff if the injunction were granted.” Cohen v. Office Depot, Inc., 204 F.3d 1069, 1077 (11th
Cir. 2000); see also Schuylkill Twp. v. CitySwitch, LLC, Civ. A. No. 08-5681, 2009 WL 2018531,
at *4 (E.D. Pa. 2009) (“[T]he value of equitable relief must be determined from the viewpoint of
the plaintiff rather than the defendant.’” (quoting Pierson v. Source Perrier, S.A., 848 F. Supp.
1186, 1189 (E.D. Pa. 1994) (additional citation omitted))). At the same time, “we will not
ordinarily consider . . . speculative arguments in determining the amount in controversy.”
Columbia Gas, 62 F.3d at 543 (citing Kheel v. Port of New York Auth., 457 F.2d 46, 49 (2d Cir.
1972), and Healy v. Ratta, 292 U.S. 263, 267 (1934)).
Here, as noted above, the injunction the Township seeks would prohibit Defendant from

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“installing cellular notes on telephone poles or installing telephone poles for the purpose of
installing . . . poles, antennas and/or nodes in the Township” unless Defendant complies “with any
and all applicable Township code[s].”

(Compl. Wherefore Clause.)

Thus, the right the

Township is seeking to protect is the right to enforce its own ordinances. CitySwitch, 2009 WL
2018531, at *4 (defining object of litigation in which Township sought to prevent construction of
communications tower that did not comply with Township ordinances as the “Township’s right to
have its zoning ordinances enforced”).

The Complaint makes plain that the Township’s

overriding purpose in enforcing the ordinances is to protect the safety, health and welfare of its
residents. (See Compl. ¶¶ 57-70 (detailing how Defendant’s failure to comply with Township
Codes endangers residents’ health, safety, and welfare).)
There can be no question that “[t]he value of enforcing the law evades easy quantification”
and does not “easily reduce to a dollar amount.”

CitySwitch, 2009 WL 2018531, at *4.

Moreover, “[w]hen an action cannot be quantified as a dollar amount, ‘jurisdiction cannot be
predicated on 28 U.S.C. § 1332.’” Id. (quoting Ad Pro, Inc. v. The Journal Register Co., Civ. A.
No. 00-3074, 2000 WL 1053847, at *1 (E.D. Pa. Aug. 1, 2000) (additional citation omitted)).
Defendant urges us to quantify the value of Township’s right to enforce its Zoning and
Telecommunications Codes by referencing the franchise and license fees that the Township may
collect if it obtains the requested injunctive relief. Defendant maintains that such fees would
exceed $75,000.00, because (1) the Township’s Telecommunication Code provides for annual
license or franchise fees of $12,000.00 to $24,000.00 for antennas installed on public property (see
Compl. Ex. B at §§ 154-69(B)(5)-(6), (C)((5)-(6)); and (2) Defendant intends to install two
co-located node facilities at existing sites, each of which would be subject to a $12,000.00 annual
fee, and twenty-one node facilities at new locations, each of which would be subjected to a

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$24,000.00 annual fee. (See Ex. A to Def.’s Br. at ¶¶ 4-7, 9.)
We are not persuaded, however, that the value of the Township’s right to enforce its
ordinances is properly measured by the registration and franchise fees that the Township might
collect if it obtains its requested equitable relief.

Defendant contends that the Complaint

“expressly seeks” a ruling that Defendant must pay license, franchise and registration fees,
because it alleges that Defendant has violated Township Codes insofar as it has “failed to obtain
appropriate franchises,” “failed to pay a registration fee,” and “failed to obtain a license.” (Def.’s
Br. at 2; Compl. ¶¶ 42(f), 43(c)-(d).) However, the Complaint never mentions the franchise and
license fees on which Defendant focuses; the only fee it mentions is a registration fee, which is a
mere $100 annually. (See Compl. ¶ 43(c); Compl. Ex. B at § 154-69(A).)

Thus, contrary to

Defendant’s contention, the Complaint does not expressly request that Defendant pay such fees to
the Township.
The Complaint does, of course, request that Defendant be required to comply with “any
and all applicable Township code[s]” if it continues to pursue its plans to install
telecommunications equipment in the Township, and the Township Codes include provisions for
the payment of registration and license fees. (Compl. Wherefore Clause; Compl. Ex. B at §
154-69.) However, an injunction prohibiting Defendant from conducting work in the Township
without complying with any and all applicable Township Codes will not necessarily result in the
payment of the significant fees at issue, because the collection of such fees is contingent upon
Defendant first obtaining the Township’s permission to install telecommunications equipment in
the Township. As set forth above, in order to obtain approval for installations, Defendant must
first meet numerous other Code requirements, including permitting, aesthetic, and safety
requirements, and if it fails to meet those requirements, it will not be permitted to engage in work

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in the Township and will not be subject to any registration or franchise fees. Accordingly,
Defendant’s contention that the object of this action is the payment of license and registration fees
is too speculative, and we will not consider those fees in determining the amount in controversy.
See Columbia Gas, 62 F.3d at 543 (“[W]e we will not ordinarily consider . . . speculative
arguments in determining the amount in controversy.” (citations omitted)); CitySwitch, 2009 WL
2018531, at *4 (“[S]peculative concerns are not relevant to the jurisdictional calculation.”)
We also reject Defendant’s assertion that we should measure the value of the Township’s
claim based on these fees because we view such fees as more reflective of the potential cost of
Defendant’s compliance with the requested injunction than the value of the Township’s claim.
The cost of a defendant’s compliance with an injunction is not the appropriate measure of the
amount in controversy. See CitySwitch, 2009 WL 2018531, at *4 (“Because the Third Circuit
dictates that the Plaintiff’s viewpoint is determinative, [defendant’s] costs . . . are irrelevant.”); see
also Columbia Gas, 62 F.3d at 539 (“The Supreme Court’s decision in Glenwood Light Co. v.
Mutual Light Co., 239 U.S. 121 (1915), . . . settled that in diversity suits for injunctions the cost of
compliance is not the definitive measure of the amount in controversy”). Here, the Township’s
Telecommunications Code makes clear that it requires telecommunications providers to pay such
fees in order to reimburse the Township for “all direct and indirect costs and expenses of the
Township related to the enforcement and administration of [franchises and licenses].” (Compl.
Ex. B at § 154-68.) As such, on this record, we consider any such fees collected as Defendant’s
costs of doing business in the Township, not as a value imparted to the Township.
For all of these reasons, we reject Defendant’s request that we value the rights the
Township is seeking to protect by the fees Defendant may be required to pay if it is ultimately
permitted to install new antennas, poles and nodes in the Township. Furthermore, because

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Defendant relies entirely on these fees in arguing that the jurisdictional minimum is met, we
conclude that Defendant has failed to establish, by a preponderance of the evidence, that the
amount in controversy is $75,000.00 or more. See 28 U.S.C. § 1446(c)(2)(B). Accordingly,
Defendant has failed to demonstrate that we have diversity jurisdiction over this matter.
B.

Federal Question Jurisdiction

Defendant alternatively contends that we have federal question jurisdiction over this case.
See 28 U.S.C. § 1331 (stating that federal district courts have original jurisdiction over civil cases
“arising under the Constitution, laws or treaties of the United States”).

Federal question

jurisdiction is typically invoked in cases in which the plaintiff “pleads a cause of action created by
federal law.” Manning v. Merrill Lynch Pierce Fenner & Smith, Inc., 772 F.3d 158, 163 (3d Cir.
2014) (citing Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005))
(additional citations omitted)). “However, [state law] causes of action . . . may nonetheless ‘arise
under’ federal law for purposes of [federal question jurisdiction] if the four-pronged Grable test is
met.” Id. The Grable test provides that a court will have federal jurisdiction over a state law
claim “‘if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4)
capable of resolution in federal court without disrupting the federal-state balance approved by
Congress.’” Id. (quoting Gunn v. Minton, –– U.S. ––, 133 S. Ct. 1059, 1065 (2013)). Notably,
“[o]nly a ‘slim category’ of cases satisfy the Grable test.” Id. (quoting Empire Healthchoice
Assurance, Inc. v. McVeigh, 547 U.S. 677, 701 (2006)).
Here, the Township does not assert a federal cause of action in the Complaint, but
Defendant contends that the Complaint raises a federal issue that meets the four prongs of the
Grable test – namely, whether the zoning rules and regulations that the Township seeks to enforce
are preserved and permitted by the federal Communications Act. In this regard, Defendant notes

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that the Telecommunications Act places certain limitations on local zoning authority insofar as it
states that: (1) local regulation of local wire service facilities may not “unreasonably discriminate
among providers of functionally equivalent services,” or “have the effect of prohibiting the
provision of personal wireless services,” (2) the local government must act on requests “for
authorization to place, construct or modify personal wireless service facilities within a reasonable
period of time,” (3) any decision to deny such a request must “be in writing and supported by
substantial evidence,” and (4) the local government may not regulate “personal wireless service on
the basis of the environmental effects of radio frequency emissions” otherwise in compliance with
the Federal Communication Commission’s standards. 47 U.S.C. § 332(c)(7)(B). However,
although Defendant states that the Township’s right to relief depends on whether any of these
limitations prohibits the Township from enforcing its regulations, Defendant fails to identify
which, if any, of these limitations is actually at issue in the instant case. In the absence of any
identifiable, genuinely disputed issue with regard to these limitations, we conclude that the
limitations do not give rise to an “actually disputed” federal issue that supports our exercise of
federal jurisdiction in this case. Gunn, 133 S. Ct. at 1065.
Defendant also appears to argue that the Township’s state law claim gives rise to a
jurisdiction-supporting federal issue concerning the federal Spectrum Act, a recent amendment to
the Telecommunications Act that limits the Township’s zoning authority by requiring local
governments to approve “a modification of an existing wireless tower or base station that does not
substantially change the physical dimensions” of the tower base. 47 U.S.C. § 1455(a)(1).
However, again, Defendant fails to explain the manner in which the Spectrum Act applies in this
case. Defendant merely asserts in a general fashion that the Spectrum Act is implicated by

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Defendant’s two modification requests to co-locate nodes on existing sites. 1 We therefore
conclude that Defendant has not established that there is any “actually disputed” federal issue
involving the Spectrum Act that supports our exercise of federal question jurisdiction over the
parties’ local zoning dispute.
We also conclude that Defendant has failed to establish that this case is “capable of
resolution in federal court without disrupting the federal-state balance approved by Congress.”
Gunn, 133 S. Ct. at 1065. The federal Telecommunications Act explicitly states that “nothing in
this Act shall limit or affect the authority of a State or local government or instrumentality thereof
over decisions regarding the placement, construction, and modification of personal wireless
service facilities.” 47 U.S.C. § 332(7)(A). As Defendant has failed to identify any specific
federal interest in the dispute at hand, we will not disrupt the federal-state balance by asserting
jurisdiction over the parties’ local zoning dispute.
In sum, Defendant has failed to meet at least two of the four prongs of the Grable test and,
thus, has failed to show that the Township’s state law claim “arises under” federal law for purposes
of establishing federal question jurisdiction. Defendant has therefore failed to meet its burden of

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Defendant appears to suggest that the Spectrum Act strips the Township of all authority
to review modifications to existing wireless towers or base stations that do not substantially
change the physical dimensions of the tower base. (Def.’s Br. at 10 (asserting that the Spectrum
Act “preempt[s] all local zoning ordinances.”)) However, we reject this suggestion, because the
federal regulations implementing the Act make clear that an applicant seeking to make such a
modification (a “covered-facility modification”) must “assert[] in writing that [its] request for
modification is covered by [the Spectrum Act, and] a . . . local government may require the
applicant to provide documentation or information . . . to the extent reasonably related to
determining whether the request meets the requirements.” 47 C.F.R. § 1.40001(c)(1).
Moreover, while a covered-facility modification request will ordinarily be deemed granted under
federal law if the local government fails to act on the request within 60 days, the instant record
does not reflect that the procedures by which such a request will be deemed granted have occurred
in this case. See id. § 1.40001(c)(2)-(3). Accordingly, we reject any suggestion that the
Township has no authority to monitor and place restrictions on Defendant’s requested activities to
modify existing wireless facilities in the Township.
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establishing that we have federal question jurisdiction over this action.
IV.

CONCLUSION
For the foregoing reasons, we conclude that Defendant has failed to demonstrate that we

have subject matter jurisdiction over this case. Consequently, we grant Plaintiff’s Motion to
Remand and remand this case to the Court of Common Pleas of Montgomery County.
An appropriate Order follows.

BY THE COURT:

/s/ John R. Padova, J.
______________________
John R. Padova, J.

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