UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ARIEL OLIVENCIA, :

Plaintiff :

: 

: No.: 02-CV 4184

v. :

: 

DELTA DENTAL OF :

PENNSYLVANIA, :

Defendant :

PENNSYLVANIA DENTAL SERVICE CORPORATION, 

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

TO STAY STATE COURT PROCEEDINGS

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

Municipal Court, on or about June 3, 2002.

2. Plaintiff’s Complaint, a copy of which is attached hereto as Exhibit “A”,

was served upon the Defendant June 12, 2002.

3. On June 25, 2002, the Defendant, Pennsylvania Dental Service

Corporation t/d/b/a Delta Dental of Pennsylvania (hereinafter “Delta Dental”) timely

Case 2:02-cv-04184-RBS Document 6 Filed 11/25/2002 Page 1 of 8
2

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 hereto as Exhibit “B.” 

4. This action has been docketed before the U.S. District Court for the

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

5. 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. 

6. Said Notice of Removal deprives the Philadelphia Municipal Court of

jurisdiction pursuant to 28 U.S.C. §1446(e), which provides that "... the State court

shall proceed no further unless and until the case is remanded."

7. 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 hereto as Exhibit “C,” was served upon the

Defendant on August 26, 3003.

8. 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

Case 2:02-cv-04184-RBS Document 6 Filed 11/25/2002 Page 2 of 8
3

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 federal court”). 

9. 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). 

10. In fact, the U.S. District Court for the Eastern District of Pennsylvania

has indicated that this is, the preferred procedure because “[t]he State court is best

able to correct these entries wherever they may have been made and prevent the

execution of an ‘open’ default judgment.” See, Master Equipment, Inc. v. Home Ins.

Co., 342 F.Supp. 549, 552 (E.D. Pa. 1972). 

11. On September 6, 2002, Defendant, Delta Dental, attempted to file such

a Motion with the Philadelphia Municipal Court. A copy of such Motion is attached

hereto as Exhibit “D”. 

12. However, such Motion was rejected by the Court Clerk of the

Philadelphia Municipal Court on September 10, 2002. Specifically, the Motion was

returned to Defendant’s counsel, and a correction slip was issued by the Court Clerk

Case 2:02-cv-04184-RBS Document 6 Filed 11/25/2002 Page 3 of 8
4

requesting “full captions on rule, order & petition (meaning names & addresses).”

See, Exhibit “E” attached hereto. 

13. On September 13, 2002, the Defendant attempted to re-file the

Motion. However, the Motion was returned to Defendant’s counsel on

September 19, 2002, requesting that Plaintiff “fill out Rule and affidavit”. See,

Exhibit “F” attached hereto. 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.

14. 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 hereto as Exhibit “G.”

15. However, on September 27, 2002, the Philadelphia Municipal Court

again failed to comply with federal law and returned the Motion noting that they “still

need rule.” See, Exhibit “F.”

Case 2:02-cv-04184-RBS Document 6 Filed 11/25/2002 Page 4 of 8
5

WHEREFORE, Defendant, Pennsylvania Dental Service Corporation t/d/b/a

Delta Dental of Pennsylvania, hereby requests 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. 

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

Case 2:02-cv-04184-RBS Document 6 Filed 11/25/2002 Page 5 of 8
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

Case 2:02-cv-04184-RBS Document 6 Filed 11/25/2002 Page 6 of 8
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. 

Case 2:02-cv-04184-RBS Document 6 Filed 11/25/2002 Page 7 of 8
G:\Delta Dental\Olivencia\Pleadings\Motion to Stay Proceedings.wpd

Case 2:02-cv-04184-RBS Document 6 Filed 11/25/2002 Page 8 of 8