IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN A. KLINK and :

KATHLEEN KLINK :

:

v. : CIVIL ACTION NO. 02-4407

:

STATE FARM MUTUAL AUTOMOBILE :

INSURANCE CO. :

ORDER

AND NOW, this day of , 2002, upon

consideration of Plaintiffs§ Motion to Remand, IT IS ORDERED that

this action is dismissed, and the case is remanded to the Court

of Common Pleas of Montgomery County, Pennsylvania. IT IS

FURTHER ORDERED that defendant, State Farm Mutual Automobile

Insurance Co., is directed to pay the costs of removal and a

reasonable counsel fee to plaintiffs, the latter to be assessed

pursuant to Motion filed within fourteen (14) days, as provided

by F.R.C.P. 54(d)(2).

BY THE COURT:

___________________________________

R. Barclay Surrick, U.S.D.J.

Case 2:02-cv-04407-RBS Document 4 Filed 07/26/2002 Page 1 of 10
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN A. KLINK and :

KATHLEEN KLINK :

:

v. : CIVIL ACTION NO. 02-4407

:

STATE FARM MUTUAL AUTOMOBILE :

INSURANCE CO. :

PLAINTIFFS§ MOTION TO REMAND TO THE

COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA

Plaintiffs, John A. Klink and Kathleen Klink, by their

attorney, moves the Court to remand this case to the Court of

Common Pleas of Montgomery County, Pennsylvania, and in support

avers:

1. This declaratory judgment action was commenced on

June 5, 2002, in the Court of Common Pleas of Montgomery County,

Pennsylvania, where it was assigned No. 02-10367.

2. On July 2, 2002, defendant filed a Notice of

Removal to this Court. The basis for this Court§s jurisdiction

is diversity of citizenship. No federal questions are presented.

3. The dispute between the parties concerns defendant

State Farm§s reduction of the underinsured motorist liability

limits contained in the automobile policy issued to plaintiff,

John A. Klink, without obtaining the documentation required by

Case 2:02-cv-04407-RBS Document 4 Filed 07/26/2002 Page 2 of 10
Pennsylvania law.

4. Plaintiffs assert that their entitlement to the

higher limits is mandated by a decision of the Superior Court of

Pennsylvania.

5. Defendant asserts that it was entitled to reduce

the limits of coverage based on several unreported Federal

District Court decisions.

6. For the reasons set forth in the attached Memorandum of Law, it would be an abuse of discretion if this Court did

not remand this case to State Court.

WHEREFORE, plaintiffs pray that this Court enter an

Order remanding this case to the Court of Common Pleas of Montgomery County, Pennsylvania, and impose costs and counsel fees on

the defendant pursuant to 28 U.S.C. “1447(c).

___________________________________

Peter I. Daniele, Esquire

Attorney I. D. No. 22636

1730 Forest Creek Drive

Blue Bell PA 19422

(610) 272-0916

Attorney for Plaintiffs,

John A. Klink and Kathleen Klink

Case 2:02-cv-04407-RBS Document 4 Filed 07/26/2002 Page 3 of 10
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN A. KLINK and :

KATHLEEN KLINK :

:

v. : CIVIL ACTION NO. 02-4407

:

STATE FARM MUTUAL AUTOMOBILE :

INSURANCE CO. :

MEMORANDUM OF LAW IN SUPPORT OF

PLAINTIFFS§ MOTION TO REMAND TO THE

COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA

This case involves a dispute between insureds and their

insurer over the amount of uninsured/underinsured motorist

coverage. Plaintiff, Kathleen Klink, was seriously injured in an

automobile accident on September 14, 1999. The damages suffered

exceed the limits of liability of the tortfeasor§s automobile

policy, so Ms. Klink has demanded underinsured coverage from her

automobile insurer and that of her husband, John A. Klink, in

whose automobile she was a passenger at the time of the accident. 

The insurer, defendant State Farm, does not have documentation

required by law requesting uninsured/underinsured limits lower

than the limits of the liability portion of John A. Klink§s

policy, $100,000. per person and $300,000. per accident.

Because of the lack of this required written request,

and the provisions of the Pennsylvania Motor Vehicle Financial

Case 2:02-cv-04407-RBS Document 4 Filed 07/26/2002 Page 4 of 10
2

Responsibility Law, as interpreted by the Superior Court of

Pennsylvania in Botsko v. Donegal Mutual Insurance Co., 423 Pa.

Super. 41, 620 A.2d 30, allocatur denied, 536 Pa. 624, 637 A.2d

284 (1993), the uninsured and underinsured limits of the John

Klink policy are equal to his limits of liability. State Farm

asserts that the uninsured/underinsured motorist limits are only

$15,000. per person, and $30,000. per accident, based on several

unreported decisions: Dang v. State Farm Mutual Automobile

Insurance Company, 1996 WL 421942, 1996 U.S. Dist. LEXIS 10359

(E.D.Pa. 1996) aff§d. without opinion, 111 F.3d 126 (3d Cir.

1997), Nationwide Insurance Company v. Tatorno, 1991 WL 24921,

1991 U.S. Dist. LEXIS 2169 (E.D.Pa. 1991), and Nationwide Insurance Company v. Buffetta, 1999 WL 740395 (E.D.Pa. 1999) aff§d.,

230 F.2d 634 (3d Cir. 2000), which disagree with Botsko, and

Lewis v. Erie Insurance Exchange, Pa. , 793 A.2d 143

(2002),and Clifford v. Prudential Property and Casualty Insurance

Co., 2001 WL 1076582, 2001 U.S. Dist. LEXIS 13808 (M.D.Pa. 2001),

which deal with technical violations, and not the complete

absence of the writing required by statute.

A Federal District Court§s power to enter a declaratory

judgment is discretionary. State Auto Insurance Companies v.

Summy, 234 F.3d 131 (3d Cir. 2001), holds that in an insurance

coverage dispute, involving issues of state law such as this, the

Case 2:02-cv-04407-RBS Document 4 Filed 07/26/2002 Page 5 of 10
3

proper exercise of discretion requires that the action be dismissed. In this case, since the action was removed from state

court it should be remanded there, not dismissed.

The statute, 28 U.S.C. “2001(a), provides:

 ”In a case of actual controversy within

its jurisdiction, . . . any court of the

United States, upon the filing of an appropriate pleading, may declare the rights and

other legal relations of any interested party

seeking such declaration, whether or not

further relief is or could be sought. Any

such declaration shall have the force and

effect of a final judgment or decree and

shall be reviewable as such.‘ [emphasis

added]

The Third Circuit in Summy, relying on a line of United States

Supreme Court decisions culminating in Wilton v. Seven Falls

Company, 515 U.S. 277, 132 L.Ed.2d 214, 115 S.Ct. 2137 (1995),

and on its decision in Terra Nova Insurance Company, Ltd. v. 900

Bar, Inc., 887 F.2d 1213 (3d Cir. 1989), reversed a decision of

the district court declaring rights under an insurance policy. 

The Court relied on the pendency of a similar declaratory judgment action in state court, filed after the federal declaratory

judgment action, avoidance of duplicative litigation, familiarity

of the state court with the underlying dispute, the complete lack

of federal interest in declaring state insurance law, and the

fact that the parties to a state court action could obtain a

definitive construction of state law, while federal courts could

Case 2:02-cv-04407-RBS Document 4 Filed 07/26/2002 Page 6 of 10
4

only predict it. In finding an abuse of discretion by the

district court in retaining jurisdiction over the action, the

Third Circuit concluded:

”In order to maintain the proper relationship

between federal and state courts, it is important that district courts step back§ and

allow the state courts the opportunity to

resolve unsettled state law matters. As

Wilton reminded us, the Declaratory Judgment

Act confers a discretion on the courts rather

than an absolute right on litigants. Wilton,

515 U.S. at 287, 115 S.Ct. 2137. It follows

that the state§s interest in resolving its

own law must not be given short shrift simply

because one party or, indeed, both parties,

perceive some advantage in the federal forum. 

When the state law is firmly established,

there would seem to be even less reason for

the parties to resort to the federal courts. 

Unusual circumstances may occasionally justify such action, but declaratory judgments

in such cases should be rare.‘ 234 F.3d at

136

In Allstate Insurance Company v. Seelye, 198 F. Supp.2d

629 (W.D. Pa. 2002), the Court declined to exercise jurisdiction

in a case addressing the entitlement to stacked uninsured motorist coverage where state law was well settled, even though there

was no pending parallel state court proceeding. In the present

case, the only reason there is no state court proceeding is that

it was removed to this Court.

The Klinks maintain that this action is clearly controlled by a decision of the Superior Court of Pennsylvania. 

Case 2:02-cv-04407-RBS Document 4 Filed 07/26/2002 Page 7 of 10
5

State Farm asserts that other cases suggest a different result. 

The issue has not been resolved by the Pennsylvania Supreme

Court.

Other cases from this Circuit in which federal courts

have declined to intervene in a dispute over the meaning of

insurance policies include: Pacific Insurance Co. v. Green

Spring Health, 2001 WL 41141 (E.D.Pa. 2001); Nationwide Mutual

Fire Insurance Company v. Cassel, 881 F. Supp. 133 (M.D. Pa.

1994); Thompson Estate v. American Fire and Casualty Co., 1992 WL

195342 (E.D.Pa. 1992). This case should be remanded to the Court

of Common Pleas of Montgomery County.

Counsel fees and costs should also be awarded pursuant

to 28 U.S.C. “1447(c):

 ”A motion to remand the case on the

basis of any defect other than lack of subject matter jurisdiction must be made within

30 days after the filing of the notice of

removal under section 1446(a). If at any

time before final judgment it appears that

the district court lacks subject matter jurisdiction, the case shall be remanded. An

order remanding the case may require payment

of just costs and any actual expenses, including attorney fees, incurred as a result

of the removal. A certified copy of the

order of remand shall be mailed by the clerk

to the clerk of the State court. The State

court may thereupon proceed with such case.‘

It is submitted that this action was removed by State Farm in

order to avoid a common pleas and intermediate appellate decision

Case 2:02-cv-04407-RBS Document 4 Filed 07/26/2002 Page 8 of 10
which would necessarily follow Botsko v. Donegal Mutual Insurance

Co., 423 Pa. Super. 41, 620 A.2d 30, allocatur denied, 536 Pa.

624, 637 A.2d 284 (1993). This Court should also direct the

payment of counsel fees by State Farm and the reasonable costs of

this Motion.

___________________________________

Peter I. Daniele, Esquire

Attorney I. D. No. 22636

1730 Forest Creek Drive

Blue Bell PA 19422

(610) 272-0916

Attorney for Plaintiffs,

John A. Klink and Kathleen Klink

Case 2:02-cv-04407-RBS Document 4 Filed 07/26/2002 Page 9 of 10
CERTIFICATE OF SERVICE

I, PETER I. DANIELE, Esquire, hereby certify that on

the date set forth below a true and correct copy of the foregoing

Plaintiffs§ Motion to Remand to the Court of Common Pleas of

Montgomery County and Memorandum of Law in support thereof were

served upon the following counsel in the manner indicated:

Service by first class mail, postage prepaid, as

follows:

Teresa Ficken Sachs, Esquire

Attorney I. D. No. 41136

Britt, Hankins, Schaible & Moughan

Two Penn Center Plaza, Suite 515

Philadelphia PA 19102

(215) 569-6949

___________________________________

Peter I. Daniele, Esquire

Attorney I. D. No. 22636

1730 Forest Creek Drive

Blue Bell PA 19422

(610) 272-0916

Attorney for Plaintiffs,

John A. Klink and Kathleen Klink

Date: July 25, 2002

Case 2:02-cv-04407-RBS Document 4 Filed 07/26/2002 Page 10 of 10