IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GLORIA DOUGHERTY & : CIVIL ACTION

WILLIAM DOUGHERTY :

 :

v. :

 :

PUBLISHER'S CLEARING HOUSE :

 :

v. :

 :

METRO MARKETING, INC. : NO. 02-4090

MEMORANDUM ORDER

Plaintiffs initiated this action in the Philadelphia

Court of Common Pleas from which it was timely removed by

defendant who has now joined a third-party defendant. Plaintiffs

allege that a gravy boat they purchased from defendant, and

apparently supplied by third-party defendant Metro Marketing,

exploded while being used by them during dinner. Gloria

Dougherty has asserted strict product liability, negligence and

breach of warranty claims. William Dougherty has asserted a

claim for loss of consortium.

Presently before the court is plaintiffs' motion to

remand. Complete diversity of citizenship is clear and

uncontested. The sole issue is whether the requisite amount in

controversy is satisfied.

Plaintiffs damage claims are open-ended. Mrs.

Dougherty asks for a judgment "in excess of $50,000." On his

loss of consortium claim, Mr. Dougherty seeks a judgment "not in

Case 2:02-cv-04090-JW Document 9 Filed 08/15/2002 Page 1 of 6
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excess of $50,000." Counsel for plaintiffs avers in an affidavit

submitted with the present motion that the value of the claims of

neither plaintiff exceeds $75,000 and states that "plaintiffs

have definitively limited their claims to a sum below the

jurisdictional threshold of this Court."

The party asserting federal jurisdiction has the burden

of demonstrating that the requisite amount in controversy is

satisfied. See McNutt v. General Motors Acceptance Corp., 298

U.S. 178, 189 (1936); Meritcare Inc. v. St. Paul Mercury Ins.

Co., 166 F.3d 214, 222 (3d Cir. 1999). Courts have applied

various standards of proof, and different permutations of those

standards, in assessing whether a removing defendant has shown

the requisite amount in controversy. The court is satisfied that

a preponderance of the evidence is the appropriate standard. See

Penn v. Wal-Mart Stores, Inc., 116 F. Supp. 2d 557, 565 (D.N.J.

2000); Irving v. Allstate Indem. Co., 97 F. Supp. 2d 653, 654

(E.D. Pa. 2000). 

The amount in controversy is determined as of the time

of removal. Meritcare, 166 F.3d at 217; Kobaissi v. American

Country Ins. Co., 80 F. Supp. 2d 488, 489 (E.D. Pa. 2000). A

plaintiff's subsequent stipulation that damages do not exceed the

jurisdictional amount will not defeat removal. See Angus v.

Shiley Inc., 989 F.2d 142, 145 (3d Cir. 1993); Kobaissi, 80 F.

Case 2:02-cv-04090-JW Document 9 Filed 08/15/2002 Page 2 of 6
3

Supp. 2d at 489; Mercante v. Preston Trucking Co., Inc., 1997 WL

230826, *5 (E.D. Pa. May 1, 1997).

Punitive damages are considered in assessing the amount

in controversy when such damages are available and plaintiff has

alleged conduct sufficient to obtain them under applicable

substantive law. See Bell v. Preferred Life Assur. Soc., 320

U.S. 238, 240 (1942); Packard v. Provident Nat'l Bank, 994 F.2d

1039, 1046 (3d Cir. 1993); Gray v. Occidental Life Ins. Co., 387

F.2d 935, 936 (3d Cir. 1968); Burkhardt v. Contemporary Services

Corp., 1998 WL 464914, *3 (E.D. Pa. Aug. 7, 1998).

The claims of multiple plaintiffs which are separate

and distinct cannot be aggregated for purposes of determining the

amount in controversy. See Meritcare Inc., 166 F.3d 214, 218. 

The nature of a claim is determined by looking to applicable

state law. See Penn, 116 F. Supp. 2d at 568 n.12. Although a

loss of consortium claim is derivative of the spouse's underlying

claim, it is considered a separate and distinct claim under

Pennsylvania law. See Barchfeld v. Nunley, 577 A.2d 910, 913

(Pa. Super. 1990). See also Sdregas v. Home Depot, Inc., 2002

U.S. Dist. LEXIS 12159 *7 (E.D. Pa. April 4, 2002) (loss of

consortium claim may not be aggregated); Burkhart, 1998 WL 464914

at *2 (same).

Where the amount of damages is not specified, the court

must make its own appraisal and assess the reasonable value of

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1 The complaint was drafted well over three years from the

time of the accident. That plaintiffs are still qualifying their

allegations regarding the injuries claimed with terms like "are

or may be serious, permanent and severe" suggests they also may

not be.

2 There is no contention that the reasonable value of Mr.

Dougherty's consortium claim exceeds $75,000 and indeed he is

expressly seeking judgment in a lesser amount.

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the rights being litigated. See Angus, 989 F.2d at 145-46;

Bachman, 173 F. Supp. 2d at 323. 

Any doubts about the existence of federal jurisdiction

are resolved in favor of remand. See Batoff v. State Farm Ins.

Co., 977 F.2d 848, 851 (3d Cir. 1992); Bachman Co. v. McDonald,

173 F. Supp. 2d 318, 322 (E.D. Pa. 2001); Orndorff v. Allstate

Ins. Co., 896 F. Supp. 173, 174 (E.D. Pa. 1995).

Plaintiffs allege that Mrs. Dougherty sustained

injuries which "are or may be serious, severe and permanent" and

suffered "severe physical pain, mental anguish and humiliation." 

Boilerplate allegations of "serious, permanent and severe

injuries" do not alone demonstrate a likelihood of damages

exceeding $75,000. See Fosbenner v. Wal-Mart Stores, Inc., 2001

WL 1231761, *3 (E.D. Pa. Oct. 12, 2001).1 The only injuries

actually alleged are bruises, contusions and lacerations. It is

alleged that she will "expend various sums of money" for medical

attention and has sustained an unspecified loss of income. 

Without further information, the court is left to speculate about

the actual extent of economic damages. See id.2

Punitive damages are available in tort cases under

Pennsylvania law where a defendant's conduct is "outrageous"

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3 That such facts may conceivably be learned through

subsequent discovery cannot alter a decision which must be made

as of the time of removal.

4 Defendant notes that it is clear from the face of the

complaint that this action was initiated three and a half years

after the alleged explosion of the gravy boat on January 20,

1999, and thus the tort claims appear to be barred by the

applicable two-year statute of limitations. The limitations

period for a breach of warranty claim is four years. See Pitts

v. Northern Telecom, Inc., 24 F. Supp. 2d 437, 443 (E.D. Pa.

1998); Patton v. Mack Trucks, Inc., 519 A.2d 959, 966 (Pa. Super.

1986). Absent proof of fraud, however, punitive damages are not

available for breach of warranty. See English v. Mentor Corp.,

69 F.3d 477, 481 (3d Cir. 1995), vacated on other grounds, 518

U.S. 1030 (1996). At least one court has remanded a case upon

determining that a claim providing for punitive damages necessary

to satisfy the amount in controversy requirement was facially

time barred. See Lerer v. Ultra Scan, Inc., 770 F. Supp. 51, 53

(D.N.H. 1990). Such a determination regarding the timeliness and

viability of a claim, however, is not necessary to a decision

regarding jurisdiciton in the instant case and the court makes

none.

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because of its evil motive or reckless indifference to the rights

or safety of others. Donaldson v. Bernstein, 104 F.3d 547, 557

(3d Cir. 1997). Reckless indifference in this context means more

than even gross negligence. A plaintiff must show that the

defendant knew or had reason to know of facts creating a high

degree of risk of physical injury to others and then deliberately

acted, or failed to act, in conscious disregard of or with

indifference to that risk. See Martin v. Johns-Manville Corp.,

494 A.2d 1088, 1098 (Pa. 1985). Plaintiffs have not alleged

specific facts from which one could reasonably discern such

outrageous conduct by defendant.3 There is no basis on which the

court can conclude that an award of punitive damages, let alone a

significant award, is at all likely.4

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There is a paucity of information about the actual

injuries and economic loss allegedly sustained. When a court

must guess or speculate about the value of a claim, the defendant

has not carried his burden. See Irving, 97 F. Supp. 2d at 656. 

The court cannot conscientiously conclude on the record presented

that the reasonable value of the claims at issue likely exceeds

$75,000.

ACCORDINGLY, this day of August, 2002, upon

consideration of plaintiff's Motion to Remand (Doc. #4) and in

the absence of any response timely thereto, IT IS HEREBY ORDERED

that said Motion is GRANTED and, pursuant to 28 U.S.C. § 1447(c),

this action is REMANDED to the Court of Common Pleas of

Philadelphia.

BY THE COURT:

 

JAY C. WALDMAN, J.

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