IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNSYLVANIA GEAR CORPORATION,

Plaintiff

v.

ACSA STEEL FORGINGS, S.p.A.,

Defendant

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No. 02 cv 4359

TRIAL BY JURY DEMANDED

MEMORANDUM OF ACSA IN OPPOSITION TO MOTION TO REMAND

I. BACKGROUND

This case is presently before the Court upon the motion of Plaintiff, Pennsylvania

Gear Corporation (“Penngear”), to remand the action to the Court of Common Pleas of Bucks

County, Pennsylvania. Penngear’s motion is based solely upon the erroneous conclusion that 

this Court lacks subject matter jurisdiction due to an insufficient amount in controversy. 

However, since Penngear’s complaint, on its face, alleges damages totaling in excess of

$100,000, the jurisdictional amount of $75,000 is satisfied. As a result, this Honorable Court has

original jurisdiction of this action pursuant to 28 U.S.C. §1332 and the matter was properly

removed to this court under 28 U.S.C. § 1441. 

On or about June 5, 2002, Penngear commenced this action by filing a complaint

in the Court of Common Pleas of Bucks County. The complaint alleges two causes of action

against ACSA Steel Forgings, S.P.A. (“ACSA”). In count I, Penngear seeks monetary damages

in the amount of $53,425.00, representing the amounts allegedly paid to ACSA for tooling. In

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2.

count II, Penngear asserts a theory of unjust enrichment in connection with profits allegedly

earned by ACSA through the use of the tooling, for which Penngear claims monetary damages in

an amount “in excess of $50,000.00.” Thereafter, on or about July 1, 2002, ACSA timely filed a

Notice of Removal seeking to have this matter removed to federal court based upon diversity

jurisdiction under 28 U.S.C. §1332. As a result, the matter is currently before this Court.

ACSA is a corporation in the business of manufacturing steel forgings to be used

in the manufacturing industry. Penngear, a corporation which manufactures gears and related

goods, offered to purchase from ACSA various forgings to be used in its manufacturing process

and to pay certain shipping expenses and warehouse costs for the same, which offer ACSA

accepted. See Penngear Complaint, ¶¶4-6. As part of this manufacturing process, and in order

to supply the forgings to Penngear under the agreement, ACSA also created specialized molds,

called tooling, which are used to cut and form the forgings. Penngear was charged some costs

relating to the fabrication of the molds. The parties’ contractual relationship ended when

Penngear failed and refused to pay ACSA. See Penngear Complaint, ¶10. 

ACSA commenced its own lawsuit on August 16, 2001, in the United States

District Court for the Western District of Pennsylvania, alleging a cause of action for breach of

contract. Approximately ten (10) months later, on June 5, 2002, Penngear filed this lawsuit with

Case 2:02-cv-04359-MAM Document 13-2 Filed 10/18/2002 Page 2 of 8
1

Presently pending before this Honorable Court is ACSA’s motion to dismiss, which

motion is based upon the fact that Penngear’s causes of action should be asserted as a

counterclaim in ACSA’s lawsuit. 

2

Penngear does not dispute the fact that there is a diversity of citizenship between the

parties.

3.

the Court of Common Pleas of Bucks County.1

 Based upon diversity jurisdiction, ACSA then

timely removed that action to this Honorable Court.

 

Penngear has now filed a motion seeking to have this case remanded to the Bucks

County Court, alleging that this Honorable Court lacks jurisdiction because the amount in

controversy is less than $75,000.00. ACSA has filed a response opposing Penngear’s motion to

remand since the aggregate amount of Penngear’s two causes of action exceeds $75,000.00. 

This memorandum of law is respectfully submitted in support of ACSA’s response.

II. DISCUSSION

This matter was properly removed to this Honorable Court based upon the

Court’s

federal diversity jurisdiction under 28 U.S.C. § 1332, since the parties are citizens of different

States2

 and the complaint, on its face, alleges damages in an aggregate amount exceeding

$103,000. 

A district court’s determination as to the amount in controversy must be based on

the plaintiff’s complaint at the time the petition for removal was filed. Werwinski v. Ford Motor

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4.

Co., 286 F.3d 664, 666 (3rd Cir. 2002). An action may not be remanded to the state court unless

it is apparent to a “legal certainty” that the plaintiff’s claim cannot meet the amount in

controversy requirement. Suber v. Chrysler Corp., 104 F. 3d 578, 588 (3rd Cir. 1997)(citing St.

Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S. Ct. 586, 591 (1938)).

When calculating the amount in controversy, under 28 U.S.C. § 1332, with

regard to multiple claims brought by a single plaintiff against a single defendant, courts permit

aggregation of two or more of the plaintiff’s claims in order to satisfy the jurisdictional amount,

regardless of whether the claims are related to one another. Snyder v. Harris, 394 U.S. 332, 335, 

89 S. Ct. 1053, 1056 (1969)(“Aggregation has been permitted... in cases in which a single

plaintiff seeks to aggregate two or more of his own claims against a single defendant”);

Werwinski, 286 F.3d at 666 (“claims, whether related or unrelated, of a single plaintiff against a

single defendant may be aggregated”); Suber, 104 F. 3d at 588 (“claims brought by a single

plaintiff against a single defendant can be aggregated when calculating the amount in

controversy, regardless of whether the claims are related to each other”); National Recovery

Systems v. Ornstein, 541 F. Supp. 1131, 1133 (E.D. Pa. 1982)(“It is well settled that a single

plaintiff in an action against a single defendant may aggregate all claims” against the defendant

in order to meet the amount in controversy requirement); Shanaghan v. Cahill, 58 F.3d 106, 109

(4th Cir. 1991)(plaintiff may aggregate smaller claims in order to reach the jurisdictional

threshold requirement). 

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5.

The only limitation to this rule of aggregation is that the plaintiff must be

permitted to recover damages under both claims; if the claims are alternative bases for recovery

for the same harm under the same law and plaintiff could not be awarded damages for both, the

claims may not be aggregated to arrive at the amount in controversy. Suber, 104 F. 3d at 588; 

C.D. Peacock, Inc. v. The Neiman Marcus Group, Inc., 1998 U.S. Dist. LEXIS 2945 (E.D. Pa.

1998). 

Since Penngear’s claims are brought by a single plaintiff against a single

defendant, and since they are distinct with regard to their theories of liability and in terms of

potential recoverable damages, the claims should be aggregated in order to satisfy the

jurisdictional amount. In its complaint, Penngear alleges two separate causes of action. In

Count I, Penngear attempts to set forth a claim for conversion, in which it alleges that following

the termination of the parties’ contract, ACSA “improperly and wrongly retained the tooling

equipment that was created and paid for by Penngear.” As damages, Penngear demands

$53,425.00, which amount supposedly reflects the charges paid by Penngear to ACSA for the

tooling. In Count II, Penngear alleges a separate and distinct claim based upon the theory of

unjust enrichment. In support of this claim, Penngear alleges that ACSA has used the converted

tooling equipment in order to make forgings for other businesses, including competitors of

Penngear and that ACSA has profited from its wrongful use of the tooling equipment. Penngear

seeks unspecified damages “in excess of $50,000.00.”

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6.

While these claims are related with respect to their subject matter, they assert

separate damages and since Penngear could recover separately for each of these two claims, they

are not alternative theories of recovery for the same injury. Therefore, the claims should properly

be aggregated for purposes of calculating the amount in controversy. When aggregated, the

damages sought with regard to each of those two claims is in excess of $75,000.

Based upon the foregoing reasons, this matter was properly removed to the

federal court under 28 U.S.C. § 1332 and therefore, Penngear’s motion to remand must be

denied. 

WHEREFORE, Defendant, ACSA Steel Forgings, S.P.A. respectfully requests

that this Honorable Court enter an Order denying Plaintiff’s motion to remand.

Respectfully submitted,

ELDERKIN, MARTIN, KELLY & MESSINA

By 

 Craig A. Markham, Esquire

 Lori R. Miller, Esquire

 150 East Eighth Street

 Erie, Pennsylvania 16501

 (814) 456-4000

CATALDE & BRADFORD

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7.

 Robert J. Catalde, Esquire

 731 French Street

 Erie, Pennsylvania 16501

 (814) 451-6236

 Attorneys for Defendant

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CERTIFICATE OF SERVICE

I certify that on the ______ day of October, 2002, I served a copy of the

Memorandum in Support of ACSA’s Response in Opposition to Penngear’s Motion to Remand

on the following individuals and in the manner indicated below:

U.S. First Class Mail, Postage Prepaid:

John G. Richards, II, Esquire

350 Sentry Parkway, Building 640

Blue Bell, Pennsylvania 19422

Attorney for Plaintiff

Respectfully submitted,

ELDERKIN, MARTIN, KELLY & MESSINA

By 

 Craig A. Markham, Esquire

 Lori R. Miller, Esquire

 Attorneys for Defendant

 150 East Eighth Street

 Erie, Pennsylvania 16501

 (814) 456-4000

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