UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ARIEL OLIVENCIA, :

Plaintiff :

: 

: No.: 02-CV 4184

v. :

: 

DELTA DENTAL OF :

PENNSYLVANIA, :

Defendant :

MEMORANDUM OF LAW IN SUPPORT OF PENNSYLVANIA 

DENTAL SERVICE CORPORATION, 

t/d/b/a DELTA DENTAL OF PENNSYLVANIA’S MOTION 

TO STAY STATE COURT PROCEEDINGS

I. INTRODUCTION

The Plaintiff, Ariel Olivencia, commenced an action in The Philadelphia

Municipal Court, on or about June 3, 2002. Plaintiff’s Complaint, a copy of which

is attached to Defendant’s Motion to Stay State Court Proceedings (hereinafter

“Motion to Stay”) as Exhibit “A”, was served upon the Defendant June 12, 2002. On

June 25, 2002, the Defendant, Pennsylvania Dental Service Corporation t/d/b/a Delta

Case 2:02-cv-04184-RBS Document 6-2 Filed 11/25/2002 Page 1 of 10
1This action has been docketed before the U.S. District Court for the Eastern

District of Pennsylvania at Civil Action No. 02-CV-4184. 

Dental of Pennsylvania (hereinafter “Delta Dental”) timely filed a Notice of Removal

with the U.S. District Court for the Eastern District of Pennsylvania pursuant to 28

U.S.C. §1446. A copy of such Notice of Removal is attached to Defendant’s Motion

to Stay as Exhibit “B.”1

 Pursuant to 28 U.S.C. §1446(d), a copy of the Notice of Removal was

simultaneously served upon the Philadelphia Municipal Court as evidenced by the

Certificate of Service attached to said Notice of Removal. On July 16, 2002, after

notice of removal, the Philadelphia Municipal Court entered judgment in favor of the

Plaintiff as a result of Defendant’s failure to appear. The Notice of Judgment,

attached to Defendant’s Motion to Stay as Exhibit “C,” was served upon the

Defendant on August 26, 3003.

 On September 6, 2002, Defendant, Delta Dental attempted to file a Motion to

Strike the Judgment with the Philadelphia Municipal Court. A copy of such Motion

is attached to the Defendant’s Motion to Stay as Exhibit “D”. However, the Motion

was rejected by the Court Clerk of the Philadelphia Municipal Court on September

10, 2002. See, Exhibit “E” attached to Defendant’s Motion to Stay. On September

13, 2002, Defendant attempted to re-file the Motion. However, the Motion was

Case 2:02-cv-04184-RBS Document 6-2 Filed 11/25/2002 Page 2 of 10
returned to Defendant’s counsel on September 19, 2002, again requesting that

Plaintiff “fill out Rule and affidavit”. See, Exhibit “F” attached to Defendant’s

Motion to Stay. On September 24, 2002, the Defendant again attempted to file the

Motion, this time including a letter explaining that since the filing was a “Motion to

Strike” and not a “petition to open the judgment” a rule to show cause is not

appropriate. A copy of the letter is attached to Defendant’s Motion to Stay as Exhibit

“G.” However, on September 27, 2002, the Philadelphia Municipal Court again

failed to comply with federal law and returned the Motion noting that Delta Dental

“still need[s] rule.” See, Exhibit “F” to Defendant’s Motion to Stay.

Consequently, on November 21, 2002, Defendant, Delta Dental, filed a Motion

with this Court requesting that this Honorable Court (1) Order any proceedings

relating to Docket No. SC-02-06-03-0143 in any state court stayed; and (2) Order the

Philadelphia Municipal Court to Strike the Judgment entered July 16, 2002 in favor

of the Plaintiff, Ariel Olivencia. This Memorandum is filed in support of such

Motion pursuant to United States District Court Eastern District Local Rule of Civil

Procedure 7.1.

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II. Legal Contentions and Authority Relied Upon 

 The procedure for removing a case from state court to federal court is set forth

at section 1446(a) of Title 28 of the United States Code, which provides that:

A defendant or defendants desiring to remove any civil

action or criminal prosecution from a State court shall file

in the district court of the United States for the district and

division within which such action is pending a notice of

removal signed pursuant to Rule 11 of the Federal Rules of

Civil Procedure and containing a short and plain statement

of the grounds for removal, together with a copy of all

process, pleadings, and orders served upon such defendant

or defendants in such action.

28 U.S.C.A. §1446(a). Section 1446(d) of Title 28 goes on to provide that once a

Notice of Removal is filed ". . . the State court shall proceed no further unless and

until the case is remanded." 

Delta Dental’s Notice of Removal was served upon the PhiladelphiaMunicipal

Court as evidenced by the Certificate of Service attached to its Notice of Removal.

Because said Notice of Removal deprives the Philadelphia Municipal Court of

jurisdiction pursuant to 28 U.C.S.A. §1446(d), the Municipal Court’s Judgment is

a nullity. Crown Const. Co. v. Newfoundland American Ins. Co., 429 Pa. 119, 125,

239 A.2d 452, 455 (1968)(“When a removal has been effected in strict compliance

with the statutory requirements, then the state court's jurisdiction ceases and any

further proceeding in the state court is a nullity so long as the action is pending in the

Case 2:02-cv-04184-RBS Document 6-2 Filed 11/25/2002 Page 4 of 10
federal court”); see also, Miners Sav. Bank of Pittston, Pa. v. United States, 63

F.Supp. 305 (M.D.Pa.1945); Shenandoah Chamber of Progress v. Frank Associates,

Inc., 95 F.Supp. 719 (E.D.Pa.1950). 

Although the Philadelphia Municipal Court is without jurisdiction, a state

court can, however, act to correct its own records, i.e. strike the default judgment.

Master Equipment, Inc. v. Home Ins. Co., 342 F.Supp. 549, 552 (E.D. Pa. 1972). In

fact, the U.S. District Court for the Eastern District of Pennsylvania has indicated

that this is the preferred procedure. See, Master Equipment, Inc. v. Home Ins. Co.,

342 F.Supp. 549, 552 (E.D. Pa. 1972). In Master Equipment, Inc., the defendant

filed a motion for the court to set aside a state court's entry of default judgment which

was entered after the matter had been removed to federal court. The Court denied the

motion but held that the state court should instead, correct the mistake. The Court

stated: 

This Court realizes that the State court is without the

jurisdictional grounds to "proceed" any further with the

controversy. In our view the State court can, however, act

to correct its own records, i.e. strike the default judgment.

As viewed by this Court, this would not be a "procedure"

within the scope of the statute, but rather a ministerial

function to correct the records of the State court which

would be erroneous as they stand. A default judgment not

only appears in the record created in the State court which

has been removed to the Federal court, but may also appear

in default judgment books and other places where default

Case 2:02-cv-04184-RBS Document 6-2 Filed 11/25/2002 Page 5 of 10
judgments and assessments of damages may be entered.

The State court is best able to correct these entries

wherever they may have been made and prevent the

execution of an "open" default judgment. This State action

now would prevent the necessity of the Federal court at a

later date ordering the State court not to permit the

execution of the null default judgment which might remain

on its books and upon which the plaintiff might try to act.

For all parties concerned including both the State and

Federal courts, it is better that the State court correct its

records and put plaintiff's default judgment to rest.

Id. at 550.

Delta Dental attempted to follow this procedure, and requested that the

Philadelphia Municipal Court strike the judgment. Instead of granting relief,

however, thePhiladelphiaMunicipal Court refused to accept the Defendant’s Motion,

and attempted to subject the Defendant to procedures which go beyond “ministerial”

functions. Specifically, the Philadelphia Municipal Court required a Rule and

Affidavit. Federal law does not permit state courts to require a Rule and Affidavit (or

permit a hearing in state court) after a case has been properly removed. Thus, as in

Master Equipment, Inc., it is essential that this Court Stay all state court proceedings

and order the Municipal Court to correct its records by Striking the Default

Judgment.

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III. CONCLUSION

For the reasons set forth above, this Court should order all state court

proceedings stayed, and order the Philadelphia Municipal Court to Strike the

Judgment entered July 16, 2002 in favor of Ariel Olivencia. 

NAUMAN, SMITH, SHISSLER & HALL, LLP

 

Dennis E. Boyle, Esquire

Supreme Court I.D. No 49618

Jodi A. Beierschmitt, Esquire

Supreme Court I.D. No. 84727

200 N. 3rd Street, 18th Floor

P. O. Box 840

Harrisburg PA 17108-0840

Telephone: (717) 236-3010

Facsimile: (717) 234-1925

Counsel For: Pennsylvania Dental Service 

Corporation, t/d/b/a Delta Dental of Pennsylvania

Date: December 11, 2002

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CERTIFICATE OF SERVICE

AND NOW, on the date stated below, I, JODI A. BEIERSCHMITT,

ESQUIRE, of the firm of Nauman, Smith, Shissler & Hall, LLP, hereby certify

that I this day served the foregoing Motion to Strike by depositing a copy of the

same in the United States Mail, first class, postage prepaid, at Harrisburg,

Pennsylvania, addressed to the following:

Ariel Olivencia

1316 Deveraux Ave. 

Philadelphia PA 1911-5816

The Philadelphia Municipal Court 

34 S. 11th St. Philadelphia, PA 19107

NAUMAN, SMITH, SHISSLER & HALL, LLP

By: 

Jodi A. Beierschmitt, Esquire

Supreme Court I.D. No. 84727

200 North Third Street, P. O. Box 840

Harrisburg, PA 17108-0840

Telephone: (717) 236-3010

Counsel for Pennsylvania Dental Service

Corporation, t/d/b/a Delta Dental of 

Pennsylvania

Date: December 11, 2002

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UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ARIEL OLIVENCIA, :

Plaintiff :

: 

: No.: 02-CV 4184

v. :

: 

DELTA DENTAL OF :

PENNSYLVANIA, :

Defendant :

ORDER

AND NOW, this _____ day of _____________, 2002, upon consideration of

the Motion of Delta Dental of Pennsylvania, it is Ordered that all state court

proceedings are stayed and the Philadelphia Municipal Court is ordered to Strike the

Judgment entered July 16, 2002 in favor of Ariel Olivencia. 

BY THE COURT

_____________________________

J. 

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G:\Delta Dental\Olivencia\Pleadings\Brief in Support of Motion to Stay

Proceedings.wpd

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