George A Gallenthin, Esq., PA ID # 65038 

P.O. Box 7866 

Philadelphia, PA 19101-7866 

215.680.6771 

________________________________________________________________________ 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

CIVIL DIVISION 

________________________________________________________________________ 

MARY SERFASS, ROXANNE M. RICHARDSON : CASE NO. 02CV2747 

LISA J.STANTON and WILLIAM S. STANTON : 

 Plaintiffs : Defendant’s Brief In 

 : Support of Denial of Motion 

 VS. : to Remand 

 : 

JAMES A. MORELL : 

DEFENDANT’S BRIEF IN SUPPORT OF DENIAL 

OF 

 MOTION TO REMAND 

TO THE COURT OF COMMON PLEAS OF 

NORTHAMPTON COUNTY, PENNSYLVANIA

 Defendant hereby briefs in opposition the Plaintiffs’ Motion To Remand to The 

Court of Common Pleas of Northampton County, Pennsylvania, and in support thereof 

allege and aver the following: 

FACTS 

 On Thursday, 12 April 2001, the Defendant, Dr. James A. Morell, was legally 

served a Writ of Summons, pursuant to Pa. R.C.P. 400 (a) and 401 (a). 

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 On Wednesday, 8 August 2001, a complaint was served on the removing party by 

United States mail, in clear violation of Pa. R.C.P. 401 (a) and (b) (2) through (5). That 

is, as of Wednesday, 8 August 2001, the instant Writ of Summons was not re-issued 

pursuant to Pa. R.C.P. 401 (b) (2) and (5), and the Complaint did not serve as alternative 

original process as the Court Record clearly evidences the Complaint was served without 

conformance to Pa. R.C.P. 400 (a). 

 As of Wednesday, 27 March 2002, the Court of Common Pleas, Northampton 

County, record did not record a return of service was filed pursuant to Pa. R.C.P. 405 (e), 

and no re-issuance of the Writ of Summons had occurred pursuant to Pa. R.C.P. 401 (b) 

(2) through (5). See Exhibit A attached hereto made a part hereof. 

 On Monday, 25 March 2002, the Defendant, Dr. James a. Morell retained George 

A. Gallenthin, Esq. to represent him in the matter with the said Plaintiffs. 

 On Thursday, 28 March 2002, Defendant, Dr. James A. Morell, timely raised the 

Preliminary Objection of Failure to Effect Original Process either by Writ of Summons or 

Complaint before the Court of Common Pleas, Northampton County, PA. 

 On Thursday, 18 April 2002, the Plaintiffs’ attorney cured the record of court by 

locating the proof of service of writ of summons and filed said with the Prothonotary of 

Northampton County, Easton, PA. 

 On Friday, 19 April 2002, the Honorable Judge Garb, Senior Judge, Court of 

Common Pleas, Northampton County, entered an Order of Court to defend or otherwise 

respond to the instant complaint within twenty (20) days, i.e. Wednesday, 8 May 2002. 

 On Friday, 3 May 2002, the Honorable Robert A. Freedberg, President Judge, 

Court of Common Pleas, Northampton County, PA, heard the Preliminary Objection as to 

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lack of original process and refused as a matter of law to preclude the Defendant, Dr. 

James A. Morell, from filing a Notice of filing Petition For Removal. See Exhibit B 

attached hereto and incorporated herein as if more fully setforth at length. 

 As of Wednesday, 8 May 2002, the Plaintiff failed to exercise the legal right of 

default pursuant to Pa. R.C.P. 237.1 and 237.2. 

 On Wednesday, 8 May 2002, the Defendant, Dr. James A. Morell, filed a Notice 

of Filing Petition For Removal within the time allowed by Judge Garb to respond or 

otherwise defend. 

 As of Friday, 21 June 2002, the writ summons and complaint, i.e. the initial 

pleading, clearly require amendments. The writ of summons and complaint are defective 

because: 

 1.) the Plaintiffs’ attorney fails to note on the Writ of Summons his current 

 certificate number issued by the Court Administrator of Pennsylvania as required 

 proof of the right to practice in the county pursuant to Pa. R.C.P. 205.1; 

 2.) the named defendant is incorrectly alleged James A. Morrell in violation of 

 Pa. R.C.P. 1018 and 1019; 

 3.) the four causes of action in the original complaint fail to set forth material 

 facts of each element constituting a cause of action pursuant to Pa. R.C.P. 1019 

 (a) and especially (f); 

 4.) the Plaintiffs’ attorney fails to note on the complaint his current certificate 

 number issued by the Court Administrator of Pennsylvania as required proof of 

 the right to practice in the county pursuant to Pa. R.C.P. 205.1; 

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 5.) the complaint’s joint verification by the Plaintiffs’ fail to conform to Pa. 

 R.C.P. 1024; 

 6.) the Plaintiffs’ attorney failed to provide a certificate of service of the 

 complaint; 

 7.) the Plaintiffs’ attorney failed to provide or file with the court a certified mail, 

 return receipt, restricted delivery receipt, i.e. “a green card”; 

 8.) the signature of Plaintiffs’ attorney on the complaint is not dated; 

 9.) the signatures of the Plaintiffs are not dated on the improper joint verification; 

 10.) the Plaintiffs’ attorney has not entered his appearance pursuant to Pa. R.C.P. 

 1012. 

 As of Friday, 21 June 2002, the Plaintiffs have waived any right to avoid a 

Petition for Removal by Plaintiffs’ failure to enter a Notice of Intent to Default pursuant 

to Pa. R.C.P. 237.1 and 237.2. 

ISSUE 

 WHETHER THE PETITION OF DEFENDANT, DR. JAMES A. MORELL, TO 

REMOVE TO THE U.S. DISTRICT COURT, EASTERN DISTRICT, SHOULD BE 

GRANTED AS THE PLAINTIFFS IGNORED AND FAILED TO MEET THE 

TECHNICAL, I.E. PROPER, SERVICE REQUIREMENTS AND VIOLATED CASE 

LAW IN BARATT AND MURPHY AS THEY INTERPRET TITLE 28 U.S.C. 1446 

(b)? 

 SUGGESTED ANSWER: YES. 

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APPLICABLE LAW 

 

 Title 28 U.S.C. § 1332 reads: 

 The district courts shall have original jurisdiction of all civil actions where 

the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest 

and costs, and is between – (1) citizens of different States.... 

 

 Title 28 U.S.C. § 1441 (a) reads: 

 Except as otherwise expressly provided by Act of Congress, any civil 

action brought in a State court of which the district courts of the United States have 

original jurisdiction, may be removed by the defendant or the defendants, to the district 

court of the United States for the district and division embracing the place where such 

action is pending.... 

 

 Title 28 U.S.C. § 1446 (b) reads: 

 The notice of removal of a civil action or proceeding shall be filed within 

thirty days after the receipt by the defendant, through service or otherwise, of a copy of 

the initial pleading setting forth the claim for relief upon which such action or proceeding 

is based.... 

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Baratt v. Phoenix Mutual Life Insurance, Co.; 787 F.Supp. 333, 1992 U.S. Dist. 

LEXIS 3658, decided 16 March 1992, clarifies and interprets Title 28 U.S.C. §§ 1332, 

1441 (a), and 1446 (b) as follows: 

 “The “through service or otherwise” language “was not intended to 

diminish the right to removal”... “To conclude that the “or otherwise” language permits a 

plaintiff to ignore the technical service requirements is simply inconsistent with the 

legislative intent behind the 1949 amendment...” “The simplest and fairest route is to 

hold that the removal period is not triggered until there has been proper service.” 

BARATT at page 3. 

Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc.; 526 U.S. 344, 119 S.Ct. 

1322; 143 L.Ed. 2d 488; 1999 U.S. LEXIS 2346, clarifies and interprets Title 28 U.S.C. § 

1446 (b) and Baratt as follows: 

 “In enacting § 1446 (b), Congress did not endeavor to break away from the 

traditional understanding. Prior to 1948, a defendant could remove a case any time 

before the expiration of the time to respond to the complaint under state law.” MURPHY

at page 4. “The interpretation of § 1445 (b) adopted here adheres to tradition, makes 

sense of the phrase “or otherwise” and assures defendants adequate time to decides 

whether to remove an action to federal court.” MURPHY at page 4. “...if the defendant 

is served with the summons but is furnished with the complaint sometime after, the 

removal period runs from the receipt of the complaint.” MURPHY at page 4. 

 Pa. R.C.P. 401 (b) (2) and (5) requires: 

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 “if an action is commenced by writ of summons and a complaint is 

thereafter filed, the plaintiff instead of reissuing the writ may treat the complaint as 

alternative original process and as the equivalent for all purposes of a reissued writ, 

reissued as of the date of filing of the complaint. Thereafter the writ may be reissued, or 

the complaint may be reinstated as the equivalent of a reissuance of the writ, and the 

plaintiff may use either the reissued writ or the reinstated complaint as alternative 

original process.” 

 Pa. R.C.P. 400 (a) provides: 

 “...original process shall be served within the Commonwealth only by the 

sheriff.” 

ARGUMENT 

 Pa. R.C.P. 401 (b) (2) and (5) requires “if an action is commenced by writ of 

summons and a complaint is thereafter filed, the plaintiff instead of reissuing the writ 

may treat the complaint as alternative original process and as the equivalent for all 

purposes of a reissued writ, reissued as of the date of filing of the complaint. Thereafter 

the writ may be reissued, or the complaint may be reinstated as the equivalent of a 

reissuance of the writ, and the plaintiff may use either the reissued writ or the reinstated 

complaint as alternative original process.” That is, in the matter at bar, the Pennsylvania 

Rules of Civil Procedure require an issued writ at the time of service of the complaint, 

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which is not the facts of the instant case and as such bars effective proper original 

process. 

 The facts in this matter at bar are: 1.) the writ of summons, although defective 

because Plaintiffs’ attorney failed to note on the writ of summons his current certificate 

number issued by the Court Administrator of Pennsylvania as required proof of the right 

to practice in the county pursuant to Pa. R.C.P. 205.1, was properly served, i.e. a sheriff’s 

officer served Defendant, Dr. James A. Morell, within the required thirty days; 2.) the 

writ of summons lapsed on Sunday, 13 May 2001; and 3.) the complaint, if it was served 

at all, was served out of time as the writ was never reissued and expired on Sunday, 13 

May 2001. These facts prove as a matter of law the proper service of process required in 

BARATT and MURPHY to trigger the thirty (30) days period never occurred. The 

United States Supreme Court, adopting BARATT, requires “the simplest and fairest route 

is to hold that the removal period is not triggered until there has been proper service.” 

BARATT at page 3. As the Plaintiffs failed to serve pursuant to Pa. R.C.P. 401 (b) (2) 

and (5), the complaint is not properly served and the Petition for Removal is timely. 

 If the Plaintiffs argue the complaint is alternative original process, then the 

Plaintiffs must conform to service by the Northampton County Sheriff’s Office pursuant 

to Pa. R.C.P. 400 (a), which Plaintiffs admit they did not do. The complaint is not 

properly served and the Petition for Removal is timely. 

 Further, the complaint clearly states the Defendant is JAMES A. MORRELL, 

while the Petitioner’s name is JAMES A. MORELL. The Plaintiffs have sued the wrong 

person, at least in name, and, as such, the complaint is not properly served and the 

Petition for Removal is timely. 

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 Further, the Plaintiffs have waived any right to Motion to Remand the instant 

matter to state court as the Plaintiffs failed to file a notice of intent to default pursuant to 

Pa. R.C.P. 237.1. 

 

CONCLUSION 

 For all the foregoing, the Defendant, Dr. James A. Morell respectfully requests 

the Honorable Court deny the Motion To Remand and order the matter to proceed in the 

United States District Court For The Eastern District Of Pennsylvania. 

 

Dated: Friday, 21 June 2002 Respectfully Submitted, 

 ______________________ 

 George A. Gallenthin, Esq. 

 Attorney for Defendant 

 

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CERTIFICATE OF SERVICE 

 I, George A Gallenthin, Esq., hereby certify that on Monday, 24 June 2002, I did 

serve a true and correct copy of the foregoing Response to Motion To Remand, on Robert 

E. Sletvold, Esq., LAUER & SLETVOLD, P.C., 701 Washington Street, Easton, Pa. 

18042, attorney for plaintiffs in the above-entitled action, by causing same to be placed in 

the United States mail, First Class, Postage Pre-paid and addressed to Robert E. Sletvold, 

Esq., LAUER & SLETVOLD, P.C., 701 Washington Street, Easton, Pa. 18042. 

Dated: Monday, 24 June 2002 ______________________ 

 George A. Gallenthin, Esq. 

 P.O. Box 7866 

 Philadelphia, PA 19101-7866 

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