1On a motion to remand, the allegations in the complaint

must be treated as true. Steel Valley Auth. v. Union Switch &

Signal Div., 809 F.2d 1006, 1010 (3d Cir.1987).

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PHILLIP ROTH : CIVIL ACTION

:

v. :

:

US LEC OF PENNSYLVANIA INC. : NO. 05-CV-4452

Norma L. Shapiro, S.J. September 23, 2005

MEMORANDUM AND ORDER

Plaintiff Phillip Roth (“Roth”) instituted this action in

the Court of Common Pleas of Montgomery County, Pennsylvania,

against his former employer, US LEC of Pennsylvania (“US LEC”). 

Roth asserted claims of breach of contract, fraud, and violation

of the Pennsylvania Wage Payment and Collection Law, 43 P.S. §

260.1, et seq., based on defendant’s alleged failure to pay

commissions and fraudulent misrepresentations. On August 22,

2005, US LEC, removing the action to federal court, asserted that

the court has diversity jurisdiction under 28 U.S.C. § 1332. 

Presently before the Court is Roth’s motion to remand to state

court. The Court will deny the motion.

I. BACKGROUND

Roth, a citizen of Delaware, is a former employee of

defendant US LEC. Pl.’s Complaint ¶ 3.1 US LEC is incorporated

Case 2:05-cv-04452-WY Document 11 Filed 09/23/05 Page 1 of 8
2

in North Carolina and has its principal place of business there. 

Id. ¶ 2. Prior to his termination, Roth worked for US LEC as a

National Account Manager at its office in Bala Cynwyd,

Pennsylvania. Id. ¶ 3. Roth alleges that as a National Account

Manager he earned both a base salary and commissions. Id. ¶ 5. 

His last paid commission, for December 2004, was approximately

$9,000. Id. ¶ 10. Following his termination, Roth unsuccessfully

requested records pertinent to the calculation of the commissions

he earned in January and February 2005. Id. ¶ 6-8. He alleges

that he is owed commissions for those months but without records

cannot calculate precisely the amount due him. Id. ¶ 7. His

complaint “estimates the commissions due for January and February

2005 exceed $10,000.00.” Pl.’s Complaint ¶¶ 13, 20, 29. 

 In its prayer for relief, Roth’s complaint “demands

judgment against Defendant in an amount not in excess of Fifty

Thousand Dollars ($50,000.00), plus punitive and/or treble

damages, together with all collateral charges, attorneys’ fees,

all court costs.” Id. at 4. Elsewhere, the complaint specifies

that Roth demands, in addition to payment of the commissions due

him, liquidated damages in the amount of 25% of the amount due,

as provided by the Pennsylvania Wage Payment and Collection Law, 

43 P.S. § 261.10. Id. ¶¶ 37-38. 

Roth’s motion to remand argues that the jurisdictional

amount cannot be reached because: (1) “Plaintiff only asked for

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3

damages not in excess of $50,000.00 and, presently, does not seek

more than that amount,” Pl.’s Mot. to Remand ¶ 12; (2) “relying

on years of experience prosecuting thousands of cases against

major automobile manufacturers,” his counsel “avers that treble

damages will not be awarded in the present case,” Pl.’s Mot. to

Remand ¶ 14; (3) his counsel asserts by way of an affidavit that

“if damages exceed $50,000, any excess will be remitted back to

Defendant.” Pl.’s Mot. to Remand ¶ 15.

US LEC maintains that removal to federal court is proper

because the complaint asks for “punitive and/or treble damages”

and “collateral charges, attorneys fees, all court costs” in

addition to the compensatory and liquidated damages capped at

$50,000. Def.’s Brief in Opposition to Pl.’s Mot. to Remand at

3. US LEC also argues that Roth’s post-removal assertions as to

the amount in controversy are irrelevant to the determination of

jurisdiction. Id. at 6-7.

II. DISCUSSION

Roth moves for remand of the action to state court because

the amount in controversy does not exceed $75,000, as required

for federal court diversity jurisdiction. US LEC argues that the

jurisdictional amount requirement has been met and the case is

properly before this Court. 

Any civil action filed in state court may be removed to

Case 2:05-cv-04452-WY Document 11 Filed 09/23/05 Page 3 of 8
4

federal court if it could properly have been filed there. 28

U.S.C. § 1441. Once an action has been removed to federal court,

remand is appropriate if the federal court lacks subject matter

jurisdiction over the dispute. 28 U.S.C. § 1447(c). A federal

court has subject matter jurisdiction over cases in which there

is complete diversity of citizenship and the amount in

controversy exceeds $75,000 exclusive of interests and costs. 28

U.S.C. § 1332.

The parties do not dispute diversity of citizenship; the

only issue is whether the amount in controversy requirement has

been satisfied. An action may not be remanded to state court

unless it is “apparent, to a legal certainty,” that the

plaintiff's claim cannot meet the amount in controversy

requirement. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303

U.S. 283, 288-89 (1938); see also Samuel-Bassett v. Kia Motors

America, Inc., 357 F.3d 392 (3d Cir. 2004)(applying legal

certainty standard in removal case). The amount in controversy

is determined on the basis of plaintiff's complaint at the time

the petition for removal was filed. Werwinski v. Ford Motor

Co., 286 F.3d 661, 666 (3d Cir. 2002). The removal statute is

strictly construed and all doubts are resolved in favor of

remand. Samuel-Bassett, 357 F.3d at 396. However, the court

must measure the amount “not by the low end of an open-ended

claim, but rather by a reasonable reading of the value of the

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5

rights being litigated." Werwinski, 286 F.3d at 666. In

addition, “[t]he court should not consider in its jurisdictional

inquiry the legal sufficiency of [plaintiffs’] claims or whether

the legal theory advanced by plaintiffs is probably unsound.” 

Suber v. Chrysler Corp., 104 F.3d 578 (3d Cir. 1997).

Roth’s complaint does not specify the amount he seeks in

compensatory damages, but he estimates the commissions owed for

January and February 2005 exceed $10,000. Pl.’s Complaint ¶¶ 13,

20, 29. As a basis for the calculation of damages, he avers

that the last commission he received, for the month of December

2004, amounted to $9,000. Pl.’s Complaint ¶ 10. Taking this

figure together with Roth’s own estimate of damages exceeding

$10,000, it is reasonable to assume that if Roth is successful he

could receive compensatory damages of twice the amount of his

commissions for December 2004, that is, $18,000. 

If Roth’s complaint contained only a breach of contract

claim, he could recover no more than compensatory damages and the

case would be remanded to state court for failure to reach the

jurisdictional amount. But the complaint also contains a claim

under the Pennsylvania Wage Payment and Collection Law and a

claim of fraud. If successful under either of these claims, Roth

could recover more than compensatory damages. In either case, it

is not possible to determine to a legal certainty that his

recovery would not exceed the jurisdictional amount. 

Case 2:05-cv-04452-WY Document 11 Filed 09/23/05 Page 5 of 8
2Plaintiff’s complaint demands “punitive and/or treble

damages,” but treble damages are not available under Pennsylvania

law for any of the named causes of action. The statement of

plaintiff’s counsel that “relying on years of experience

prosecuting thousands of cases against major automobile

manufacturers, [he] believes and, therefore, avers that treble

damages will not be awarded in the present case” is irrelevant. 

See Pl.’s Motion to Remand ¶ 14.

6

Roth’s prayer for relief includes a demand for punitive

damages.2 Under Pennsylvania law, punitive damages cannot be

awarded for breach of contract, DiGregorio v. Keystone Health

Plan E., 840 A.2d 361, 370 (Pa. Super. Ct. 2003), but can be

awarded for fraud. See, e.g., McClellan v. Health Maintenance

Organization of Pennsylvania, 604 A.2d 1053, 1061 (Pa. Super. Ct.

1992); Smith v. Reinhart Fort, 68 Pa. D. & C.4th 432, 440 (Pa.

Com. Pl. 2004). A court may include punitive damages in the

amount in controversy unless the demand for punitive damages is

patently frivolous and without foundation. Golden ex rel. Golden

v. Golden, 382 F.3d 348, 355 (3d Cir. 2004). Claims for punitive

damages are per se patently frivolous and without foundation when

punitive damages are not available under the state law governing

the action. Id. Here, punitive damages are available for a

fraud claim and should be included in the amount in controversy. 

Punitive damages, if awarded, could increase the amount recovered

by the plaintiff beyond the jurisdictional requirement. See

Golden, 382 F.3d at 355 (“[i]f appropriately made . . . a request

for punitive damages will generally satisfy the amount in

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7

controversy requirement because it cannot be stated to a legal

certainty that the value of the plaintiff's claim is below the

statutory minimum.”)

Roth’s claim under the Pennsylvania Wage Payment and

Collection Law (“WPCL”) could result in an award of liquidated

damages and attorneys’ fees in addition to compensatory damages. 

Roth’s complaint demands liquidated damages in the amount of

twenty-five per cent of the total commissions owed him, as

provided by the WPCL. Pl.’s Complaint ¶ 37; 43 P.S. § 260.10. 

If Roth is owed $18,000 in commissions, the liquidated damages

available under the statute would bring the total to $22,500

before any consideration of attorneys’ fees.

Roth’s complaint also asks for attorneys’ fees. “Although

28 U.S.C. § 1332 excludes ‘interests and costs’ from the amount

in controversy, attorney’s fees are necessarily part of the

amount in controversy if [they] are available to successful

plaintiffs under the statutory cause of action.” Suber, 104 F.3d

at 585; Labenz v. Gov’t Employees Ins. Co., 2002 WL 32348336 , at

*2 (E.D. Pa. Mar. 15, 2002). Here, the WPCL provides that the

court “shall, in addition to any judgment awarded to the

plaintiff or plaintiffs, allow costs for reasonable attorneys’

fees of any nature to be paid by the defendant.” 43 P.S. §

260.9a(f). It is impossible to determine to a legal certainty

that attorneys’ fees would not exceed $52,501, which, added to

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8

the estimated compensatory and liquidated damages, would satisfy

the jurisdictional amount even if no punitive damages were

awarded for fraud.

Plaintiff attempts to demonstrate that the jurisdictional

amount cannot be reached by attaching to his motion to remand an

affidavit by his counsel that “[i]f the remedy in this case

exceeds $50,000.00, Plaintiff will remit all excess to

Defendant.” Pl’s Motion to Remand, “Affidavit of Counsel.” 

Plaintiff's assertion subsequent to removal is of no legal

significance. Werwinski, 286 F.3d at 667. “[A] plaintiff

following removal cannot destroy federal jurisdiction simply by

amending a complaint that initially satisfied the monetary

floor.” Angus v. Shiley, 989 F.2d 142, 145 (3d Cir. 1993). The

plaintiff’s post-removal assertion is irrelevant to the

determination of this court’s jurisdiction. 

III. CONCLUSION

Plaintiff’s motion to remand to state court will be denied

because it is not apparent to a legal certainty that the amount

in controversy requirement has not been satisfied. 

An appropriate Order follows.

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