IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT-OF-WAY FOR STATE ROUTE 0022, SECTION 034, IN THE TOWNSHIP OF FRANKSTOWN

Filing 18

MEMORANDUM OPINION AND ORDER granting 8 Motion to Dismiss for Lack of Jurisdiction. The Court hereby REMANDS the case to state court, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 8/28/2018. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF RIGHT-OFWAY FOR STATE ROUTE 0022,
SECTION 034, IN THE TOWNSHIP OF
FRANKSTOWN

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Case No. 3:18-cv-57
JUDGE KIM R. GIBSON

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MEMORANDUM OPINION

I.

Introduction

Pending before the Court is the Motion to Dismiss for Lack of Jurisdiction
("Motion") filed by the Commonwealth of Pennsylvania ("Commonwealth") (ECF No. 8).
The Motion has been fully briefed (see ECF Nos. 9, 11, 17) and is ripe for disposition. For
the reasons stated below, the Court will GRANT the Commonwealth's Motion.
II.

Background

Defendant Stewart Merritts ("Merritts") owns two parcels of land in Frankstown
Township, Pennsylvania, totaling 1.5 acres. (ECF No. 3 at 3-4.) In February 2016, the
Pennsylvania Department of Transportation ("PennDOT") informed Merritts that it had
determined that it would need to acquire a small portion of his land for a highway
improvement project. (ECF No. 3-1 at 2.) PennDOT subsequently offered Merritts $500.00
to purchase a right-of-way to the land required for the improvement project, which
included a nearly 3,000 square foot temporary construction easement and a 1,150 square

foot drainage easement. (ECF No. 3-1 at 1.) Merritts rejected PennDOTs offer, and made a
counter offer which PennDOT declined. (ECF No. 3 at 3.)
PennDOT filed a Declaration of Taking in the Court of Common Pleas of Blair
County, Pennsylvania. Merritts filed Preliminary Objections. (Id. at 4.) PennDOT
responded by filing a Motion to Dismiss Merritts' Preliminary Objections and a Motion
for Writ of Possession. (Id.) The Court of Common Pleas held oral argument. (Id.) The
Court of Common Pleas then issued an opinion which denied and dismissed Merritts'
Preliminary Objections, granted PennDOTs motions, and awarded PennDOT possession
of Merritts' property. (Id. at 5.)
Merritts appealed. (Id.) The Commonwealth Court received briefs and heard oral
argument from both parties. (Id.) On February 26, 2018, the Commonwealth Court
affirmed the decision of the Blair County Court of Common Pleas. (Id.)
On March 26, 2018-exactly thirty days after the Commonwealth Court's
decision-Merritts filed a notice of removal. (ECF No. 1.) The Commonwealth did not
challenge the removal, or even enter an appearance in the case.
On July 13, 2018, Merritts filed a Petition to Stay Construction (ECF No. 5), which
the Court interprets as a Motion for a Preliminary Injunction. After the Court informed
the parties that it wished to schedule a status conference on the Motion for a Preliminary
Injunction, counsel for the Commonwealth entered their appearances. (ECF at 6, 7) and
filed a Motion to Dismiss for Lack of Jurisdiction (ECF No. 8) and an accompanying brief
(ECF No. 9).

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The Court held a status conference on the Motion for a Preliminary Injunction on
July 25, 2018. (ECF No. 12.) Counsel for both parties agreed that the Court should resolve
the jurisdictional issue raised in the Commonwealth's Motion to Dismiss before deciding
Merritts' Motion for a Preliminary Injunction. (See id.)
The Commonwealth argues that the Court should dismiss Merritts' removal action
for several reasons. First, the Commonwealth contends that the Court should dismiss
Merritts' case because Merritts improperly removed it long after the 30-day statutory
removal period expired. (ECF No. 9 at 6.) The Commonwealth also contends that the
Rooker-Feldman doctrine precludes the Court from possessing subject-matter jurisdiction

over Merritts' case. (Id. at 9.) The Commonwealth further asserts that the Court should
abstain under Burford and thus lacks subject-matter jurisdiction. 1 The Court will address
these arguments in turn.2

III.

Discussion
A.

The Commonwealth Waived Any Objection to the Untimeliness of
Merritts' Removal by Failing to Object to Removal Within 30 Days

Pursuant to 28 U.S.C. § 1446, a defendant may remove an action to federal court
within 30 days of the defendant's receipt of a copy of the initial pleading or summons. 28
U.S.C. § 1446. Under 28 U.S.C. § 1447, plaintiff may file a "motion to remand the case on
the basis of any defect other than lack of subject matter jurisdiction ... within 30 days
after the filing of the notice of removal." 28 U.S.C. § 1447; see, e.g., Perea v. Benjamin H.
Realty Corp., No. CV 16-770 (KM), 2016 WL 5858654, at *2 (D.N.J. Oct. 4, 2016) (holding

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PennDot argued this point at oral argument, but did not address it in its brief.
PennDot advances other arguments for dismissal which the Court need not address here.

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that "a motion to remand based on a defect in the removal procedure must be brought
timely, or the objection is waived."); Alston v. Local 734 Pension Fund, No. CIV.A. 09-4273
(PCS), 2010 WL 3078697, at *2 (D.N.J. July 15, 2010) (stating that "[o]nce the thirty-day
notice period has expired, the right to remand a case due to a procedural defect is waived
and a district court is statutorily limited in its power to remand the case."); Banks v. U.S.

Marshals Serv., No. 2:15CV127, 2015 WL 6736816, at *2 (W.D. Pa. Nov. 3, 2015) (holding
that plaintiff waived objection to removal based on procedural defect by failing to bring
said challenge within thirty days of notice of removal).
The Commonwealth waived its ability to challenge Merritts' removal based on a
procedural defect. Merritts filed his notice of removal on March 26, 2018. (ECF No. 1.) The
Commonwealth did not file its Motion to Dismiss until July 19, 2018 (ECF No. 8), several
months after the 30-day period expired. Therefore, The Commonwealth waived its ability
to challenge Merritts' removal on non-jurisdictional grounds.
The Commonwealth correctly observes that Merritts filed his notice of removal

extremely late-approximately nineteen months after PennDOT initiated this proceeding,
and eighteen months after the statutory period to remove under 28 U.S.C. § 1446. But a
"[d]efendant's lateness is quintessentially the sort of removal 'defect' that must be raised
by plaintiff within 30 days of removal, or it is waived." Perea v. Benjamin H. Realty Corp.,
No. CV 16-770 (KM), 2016 WL 5858654, at *3 (D.N.J. Oct. 4, 2016) (citing Farina v. Nokia
Inc.,

625 F.3d 97, 113-14 (3d Cir. 2010)). Accordingly,

the Court rejects the

Commonwealth's argument that Merritts' failure to remove within the 30-day period

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provided by 28 U.S.C. § 1446 excuses its failure to object to removal within the 30-day
period required by 28 U.S.C. § 1447.
While the Commonwealth waived its right to challenge procedural defects in
Merritts' removal, the Court maintains the ability-and, in fact, the obligation-to remand
the case if, at any time before final judgment, the Court determines that it lacks subjectmatter jurisdiction. 28 U.S.C. § 1447; see Jenkins v. United Steel Workers of Am., 522 F. Supp.
80, 83 (E.D. Pa. 1981) (citing Medlin v. Boeing Vertol Co., 620 F.2d 957 (3d Cir. 1980))
(holding that a "plaintiff's failure to challenge removal cannot confer jurisdiction on this
Court which it does not otherwise possess."); Hartt v. Flagship Credit Corp., No. 10-822,
2010 WL 2736959, at *1 (E.D. Pa. July 8, 2010) (citing Arbaugh v. Y & H Corp., 546 U.S. 500,
506 (2006)) ("It is the responsibility of the court to inquire, sua sponte, into subject matter
jurisdiction even when removal is not challenged.")
"[I]t is the removing party's burden to establish the existence of federal
jurisdiction, and all doubts must be resolved in favor of remand." Raible v. Union Sec. Ins.
Co., No. 2:14-CV-1307, 2015 WL 746213, at *2 (W.D. Pa. Feb. 20, 2015) (citing Miller v.
Liberty Mut. Grp., 97 F. Supp. 2d 672,674 (W.D. Pa. 2000)).

As explained below, the Court holds that Merritts failed to satisfy his burden to
establish the existence of federal subject-matter jurisdiction. Accordingly, the Court will
remand the case to state court.

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B.

The Court Will Grant the Commonwealth's Motion Because the Court
Does Not Have Subject-Matter Jurisdiction Under the Rooker-Feldman
Doctrine

The Commonwealth argues that the Court must dismiss this action for lack of
subject-matter jurisdiction under the Rooker-Feldman doctrine. See Rooker v. Fidelity Tr.
Co., 263 U.S. 413, (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). The Court
agrees.
The Rooker-Feldman doctrine stands for "the principle that federal district courts
lack jurisdiction over suits that are essentially appeals from state-court judgments." Great
W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 165 (3d Cir. 2010). The
doctrine applies in "cases brought by state-court losers complaining of injuries caused by
state-court judgments rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments." Id. at 164 (quoting Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
The Third Circuit has held that four requirements must be satisfied for the Rooker-

Feldman doctrine to apply: "(1) the federal plaintiff lost in state court; (2) the plaintiff
complains of injuries caused by [the] state-court judgments; (3) those judgments were
rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court
to review and reject the state judgments." Schatten v. Weichert Realtors, Inc., 406 F. App'x
589, 591 (3d Cir. 2010) (citing Great W. Mining & Mineral Co., 615 F.3d at 169).
"[T]he Rooker-Feldman Doctrine 'is a narrow doctrine that applies only in limited
circumstances." Shibles v. Bank of Am., N.A., No. 17-2386, 2018 WL 1448670, at *2 (3d Cir.
Mar. 23, 2018) (internal quotation marks omitted) (quoting Great W. Mining & Mineral Co.,

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615 F.3d at 169). As the Third Circuit has explained, '"when the source of the injury is the
defendant's actions (and not the state court judgments), the federal suit is independent,
even if it asks the federal court to deny a legal conclusion reached by the state court[.]"'

Shibles, 2018 WL 1448670, at *2 (quoting Great W. Mining & Mineral Co., 615 F.3d at 167.).
Accordingly, for the Court to determine that Rooker-Feldman precludes Merritts from
removing his case to federal court, the Court "must determine that the injury alleged was
'produced by a state-court judgment and not simply ratified, acquiesced in, or left
unpunished by it."' Shibles, 2018 WL 1448670, at *2 (quoting Great W. Mining & Mineral
Co., 615 F.3d at 167.).
The Court holds that the Rooker-Feldman doctrine bars Merritts' claims. The first
element is satisfied because Merritts lost the condemnation proceeding in state court.

Schatten, 406 F. App'x at 591. The second element is satisfied because Merritts complains
that the state court judgment-namely, the decision to grant PennDot's Motion for Writ of
Possession, which allowed PennDOT to condemn his property through eminent
domain-produced his injury. 3 Id. The third element is satisfied because Merritts removed
his case to this Court after judgment was rendered against him in the state tribunals. Id.
And the fourth element is satisfied because Merritts asks this Court to exercise appellate
jurisdiction over the Commonwealth Court, id.; Merritts argues that the Commonwealth

Merritts argues that "[f]or the Commonwealth Court of Pennsylvania to rule as it did, would
confer the power of eminent domain without the element of sovereign title on the part of
Pennsylvania, without the due process of law and just compensation, which is required as a matter
of both federal and state constitutional law." (ECF No. 3 at 11.) As this passage indicates, Merrits
contends that the state court's judgment condemning his property caused his injury. Accordingly,
Merritts does not allege that the state court judgment ratified, acquiesced in, or failed to punish a
prior harm caused by PennDot. See Shibles, 2018 WL 1448670, at *2.

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Court's decision violates the Fourteenth Amendment's due process clause and requests
that this Court overturn the Commonwealth Court's decision. (See ECF No. 3 at 11.)
Because Merritts satisfied all four elements that the Third Circuit has articulated
for the Rooker-Feldman doctrine to apply, the Court finds that the Rooker-Feldman doctrine
precludes Merritts' claim. Therefore, the Court holds that it lacks subject-matter
jurisdiction and must dismiss the case. See Gary v. Braddock Cemetery, 517 F.3d 195, 201 (3d
Cir. 2008) (affirming district court's dismissal for lack of subject-matter jurisdiction when
district court dismissed claim pursuant to the Rooker-Feldman doctrine).
C.

Alternatively, the Court Must Dismiss Merritts' Action Because the
Court Will Abstain Under Burford

Federal courts have "no more right to decline the exercise of jurisdiction which is
given, than to usurp that which is not given." Cohens v. Virginia, 19 U.S. (6 Wheat.) 264,
404 (1821); Hamilton v. Bromley, 862 F.3d 329, 331 (3d Cir. 2017). Accordingly, if jurisdiction
exists, federal courts have a "virtually unflagging obligation" to exercise it. Colorado River

Water Conservation Dist. v. United States, 424 U.S. 800, 818 (1976) (citation omitted); ACRA
Turf Club, LLC v. Zanzuccki, 748 F.3d 127, 138 (3d Cir. 2014).
"There are, however, narrow exceptions to this general rule. These exceptions fall
under the so-called abstention doctrine." Wells Fargo Bank, N.A. v. Carnell, No. 3:16-CV130, 2017 WL 1498087, at *3 (W.D. Pa. Apr. 25, 2017) (Gibson, J.) "Abstention is a judicially
created doctrine under which a federal court will decline to exercise its jurisdiction so that
a state court or agency will have the opportunity to decide the matters at issue." Hi Tech

Trans, LLC v. New Jersey, 382 F.3d 295, 303 (3d Cir. 2004) (quoting Kentucky West Virginia

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Gas Co. v. Pennsylvania Publ. Util. Comm'n, 791 F.2d 1111, 1114 (3d Cir. 1986)) (internal
quotation marks omitted). "The [abstention] doctrine is rooted in concerns for the
maintenance of the federal system." Hi Tech Trans, LLC, 382 F.3d at 303.
The Supreme Court has articulated four types of abstention: Pullman abstention,

see R.R. Comm'n of Texas v. Pullman, 312 U.S. 496,500 (1941); Burford abstention, see Burford
v. Sun Oil Co., 319 U.S. 315 (1943); Colorado River abstention, see Colorado River Water
Conservation Dist., 424 U.S. 800; and Younger abstention, see Younger v. Harris, 401 U.S. 37
(1971). PennDOT asks this Court to abstain under Burford and dismiss Merritts' action for
lack of subject-matter jurisdiction.
"The purpose of Burford [abstention] is to avoid federal intrusion into matters of
local concern and which are within the special competence of local courts."' Baykeeper v.

NL Indus., Inc., 660 F.3d 686, 693 (3d Cir. 2011) (quoting Hi Tech Trans, LLC, 382 F.3d at
303-04). Under Burford, "a district court may decline to exercise or postpone jurisdiction,
even diversity jurisdiction, 'where a difficult question of state law is presented which
involves important state policies or administrative concerns."' Rucci v. Cranberry Twp., Pa.,
130 F. App'x 572, 577 (3d Cir. 2005) (quoting Heritage Farms, Inc. v. Solebury Twp., 671 F.2d
743, 746 (3d Cir. 1982)). The Supreme Court has explained that, under Burford,
When timely and adequate state-court review is available, a federal court
sitting in equity must decline to interfere with the proceedings or orders of
state administrative agencies: (1) when there are "difficult questions of
state law bearing on policy problems of substantial public import whose
importance transcends the result in the case then at bar"; or (2) where the
"exercise of federal review of the question in a case and in similar cases
would be disruptive of state efforts to establish a coherent policy with
respect to a matter of substantial public concern."

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New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 361 (1989)
(quoting Colorado River Water Conservation Dist., 424 U.S. at 814).
Eminent domain is a "distinctly state-law matter." Rucci, 130 F. App'x at 577
(citing La. Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 28-29 (1959)). "[S]ignificant
state policies and administrative concerns underl[ie] a state's eminent domain
proceedings." Coles v. City of Philadelphia, 145 F. Supp. 2d 646, 652 (E.D. Pa. 2001).
Accordingly, "Burford abstention is usually applied to . . . state eminent domain
procedures." Rucci, 130 F. App'x at 578 (quoting Grode v. Mut. Fire, Marine & Inland Ins.

Co., 8 F.3d 953, 956 (3d Cir. 1993)).
The Third Circuit has affirmed a district court's decision to apply Burford and
abstain from a challenge to Pennsylvania's eminent domain proceedings. See Rucci, 130 F.
App'x at 577 (quoting Coles, 145 F. Supp. 2d at 652) (holding that "[t]he Pennsylvania
Eminent Domain Code supplies 'a complete and exclusive procedure and law to govern
all condemnations of property for public purposes and the assessment of damages ...
[and] fully protects the rights of the property owner and guarantees to him the
constitutional safeguards to which he is entitled, including appropriate appellate
review.")
The Court will abstain under Burford. Pennsylvania has a strong interest in
establishing and administering a coherent and uniform policy regarding eminent domain,
an inherently local matter of substantial public concern. See Rucci, 130 F. App'x at 577;

Coles, 145 F. Supp. 2d at 652. Accordingly, like the district court in Coles, the Court will
"exercise [its] discretion and abstain under Burford to avoid disrupting the efforts of the

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Commonwealth of Pennsylvania 'to establish a coherent policy with respect to a matter of
substantial public concern."' Coles, 145 F. Supp. 2d at 652 (internal citations omitted).
Therefore, the Court will dismiss Merritts' action for lack of subject-matter jurisdiction
based on application of Burford abstention.

D.

Alternatively, the Court Will Grant the Commonwealth's Motion
Because Merritts Failed to Satisfy His Burden to Establish SubjectMatter Jurisdiction Under the Well-Pleaded Complaint Rule

Removal is proper on the basis of federal question jurisdiction "only when the face
of a properly pleaded complaint asserts a federal question." Deutsche Bank Nat1 Tr. Co. v.

Harding, 655 F. App'x 113, 114 (3d Cir. 2016) (citing Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987)). "It is not enough that a federal question is or may be raised as a defense.
'[T]he controversy must be disclosed upon the face of the complaint, unaided by the
answer or by the petition for removal."' Palmer v. Univ. of Med. & Dentistry of New Jersey,
605 F. Supp. 2d 624, 630 (D.N.J. 2009) (quoting U.S. Express Lines Ltd. v. Higgins, 281 F.3d
383, 389 (3d Cir. 2002)).
Merritts claims that the Court has federal question subject-matter jurisdiction over
his removal action because he objects to the PennDOT s condemnation under the Due
Process Clause of the Fourteenth Amendment. (ECF No. 3 at 2.) But the federal question
appears only in Merritts' defense to PennDOT s condemnation suit, not on the face of
PennDOT s complaint that Merritts removed. Accordingly, Merritts failed to sustain his
burden to establish that the Court possesses subject-matter jurisdiction over his removal
action.

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E.

Conclusion

For the reasons stated above, the Court holds that it lacks subject-matter
jurisdiction over this case. Accordingly, the Court will remand the case to state court.
An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF RIGHT-OFWAY FOR STATE ROUTE 0022,
SECTION 034, IN THE TOWNSHIP OF
FRANKSTOWN

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Case No. 3:18-cv-57

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JUDGE KIM R. GIBSON

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AND NOW, this

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ORDER

day of August, 2018, upon consideration of the Motion to

Dismiss filed by the Commonwealth (ECF No. 8), and in accordance with the
accompanying memorandum opinion, IT IS HEREBY ORDERED that the Motion is
GRANTED. The Court HEREBY REMANDS the case to state court.

BY THE COURT:

KIM R. GIBSON
UNITED STA TES DISTRICT JUDGE