IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: )

 KASH SNYDER, )

)

 Debtor. )

 )

)

GEORGE SNYDER, et al., ) Case No. 05-27124 JKF

)

 Appellants, ) Adv. Nos. 05-2847

) 05-2864

 -vs- )

 Civil Action No. 05-1752

) 06-0029

EDWARD QUINLAN, et al., )

)

 Appellees. )

AMBROSE, Chief District Judge.

OPINION

and

ORDER OF COURT

OPINION

The litigation between these parties is lengthy and torturous. I understand

the Appellees’ frustration with what they believe to be an unjust campaign to

obstruct their lawful title to various properties. I also understand the Bankruptcy

Court’s effort to gain control over the multitude of related filings. Nevertheless,

after considering the parties’ arguments and the proceedings before the

Bankruptcy Court, I am compelled to reverse the Bankruptcy Court’s order

dismissing the underlying actions. The Bankruptcy Court lacked the necessary

subject matter jurisdiction to preside over the actions and the actions shall be

Case 05-02847-JKF Doc 32 Filed 07/31/06 Entered 07/31/06 13:54:41 Desc Main Case 2:05-cv-01752-DWA Document 11 Filed 07/31/2006 Page 1 of 5


Document Page 1 of 5
1

 I place the word claims in quotation marks because, given the lack of an initial pleading as

set forth below, the Court cannot be sure of what precisely the Appellants were claiming.

2

remanded to state court.

STANDARD OF REVIEW

Rule 8013 of the Federal Rules of Bankruptcy provides that:

[o]n appeal the district court or bankruptcy appellate

panel may affirm, modify, or reverse a bankruptcy’s

judge’s judgment, order or decree or remand with

instructions for further proceedings. Findings of fact,

whether based on oral or documentary evidence, shallnot

be set aside unless clearly erroneous, and due regard shall

be given to the opportunity of the bankruptcy court to

judge the credibility of the witness.

Fed. R. Btcy. Proc. 8013. Thus, a bankruptcy court’s legal determinations are

reviewed de novo, its factual findings for clear error and its exercises of discretion

for abuse. See The Official Committee of Unsecured Creditors of New World Pasta

Co., 322 B.R. 560, 564-65 (Bankr. M.D. Pa. 2005), citing, In re Martin’s Aquarium, Inc., 98

Fed. Appx. 911, 913 (3d Cir. 2004) and In re Sharon Steel Corp., 871 F.2d 1217, 1222 (3d

Cir. 1989) (“[I]t is well settled law that this court applies a clearly erroneous standard

to findings of fact, conducts plenary review of conclusions of law, and must break

down mixed questions of fact and law, applying the appropriate standard to each

component.”). 

ANALYSIS

This appeal stems from a Bankruptcy Court’s dismissal, with prejudice, of

 Appellants’ “claims.”1 Briefly, the Appellees removed to the United States

Case 05-02847-JKF Doc 32 Filed 07/31/06 Entered 07/31/06 13:54:41 Desc Main Case 2:05-cv-01752-DWA Document 11 Filed 07/31/2006 Page 2 of 5


Document Page 2 of 5
2

 In Pennsylvania, a party may commence an action, and thereby toll the statute of

limitations, by filing a Writ of Summons. Ordinarily, the party will then either file a Complaint,

perhaps after engaging in some initial discovery. 

3

Bankruptcy Court for the Western District of Pennsylvania two filings in the Court

of Common Pleas of Allegheny County, Pennsylvania. The first filing consisted of a

Praecipe for a Writ of Summons, Snyder v. Quinlan, GD 5-14878 (C.C.P. Allegheny,

Pennsylvania).2 No Complaint was ever filed, nor was any discovery taken in

connection with that action . The second filing consisted solely of a Notice of Lis

Pendens, Snyder v. Quinlan, GD 5-14890 (C.C.P. Allegheny, Pennsylvania). Thus, the

second filing was merely a notice that litigation was pending at Snyder v. Quinlan,

GD 5-14878 (C.C.P. Allegheny, Pennsylvania). 

Shortly after removal, the Bankruptcy Court held a status conference on the

matters. During that status conference, the Bankruptcy Court dismissed, with

prejudice, both matters. The Appellants filed this appeal claiming, among other

things, that the Bankruptcy Court lacked subject jurisdiction over the matters. I

agree.

Removal of an action to bankruptcy court is governed by 28 U.S.C. § 1452, 28

U.S.C. § 1334, and Federal Rule of Bankruptcy 9027. Rule 9027 provides:

a notice of removal may be filed with the clerk only within

the shorter of (A) 30 days after receipt, through service or

otherwise, of a copy of the initial pleading setting forth

the claim or cause of action sought to be removed, or (B)

30 days after receipt of the summons if the initial

pleading has been filed with the court but not served

with the summons.

Fed. R. Bank. R. 9027(a)(3) (emphasis added). Appellants contend that they never filed

Case 05-02847-JKF Doc 32 Filed 07/31/06 Entered 07/31/06 13:54:41 Desc Main Case 2:05-cv-01752-DWA Document 11 Filed 07/31/2006 Page 3 of 5


Document Page 3 of 5
4

an “initial pleading” which would have permitted the Appellees toremove the action

pursuant to § 1452 and § 1334. Appellants insist that a Writ of Summons and Notice

of Lis Pendens do not constitute “initial pleadings.” 

While research did not reveal any case law directly on point, the Advisory

Committee Notes to Rule 9027 reveal that Rule 9027(a)(3) is modeled after 28 U.S.C.

§ 1446(b). Section 1446(b) also uses the phrase “... the initial pleading setting forth

a claim for relief... .” 28 U.S.C. § 1446(b). At least one court has interpreted that

phrase as excluding a writ of summons. See McFarland v. Muse, Civ. No. 5-1155, 2005

WL 2133672 at * 1 (M.D. Pa. Sept. 1, 2005) (stating that “[a] Writ of Summons which is

used in Pennsylvania state courts to initiate an action, is not an ‘initial pleading’

removable to federal court under 28 U.S.C. § 1446(b).”). “The Federal Rules and the

removal statute presuppose that an initial pleading setting forth a claim for relief

has been filed... . Without such an initial pleading, the removal of a Writ of Summons

alone is premature since [the federal court] cannot have subject matter jurisdiction.

“ McFarland, 2005 WL 2133672 at * 1, quoting, Gervel v. L.& J. Talent, 805 F. Supp. 308,

309 (E.D. Pa. 1992).

Accordingly, I conclude that the Appellees prematurely removed both Snyder

matters. No initial pleadings setting forth the claims had been filed. As such, the

Bankruptcy Court could not exercise subject matter jurisdiction.

**************************

Case 05-02847-JKF Doc 32 Filed 07/31/06 Entered 07/31/06 13:54:41 Desc Main Case 2:05-cv-01752-DWA Document 11 Filed 07/31/2006 Page 4 of 5


Document Page 4 of 5
5

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: )

 KASH SNYDER, )

)

 Debtor. )

 ) )

GEORGE SNYDER, et al., ) Case No. 05-27124 JKF

)

 Appellants, ) Adv. Nos. 05-2847

) 05-2864

 -vs- )

 Civil Action No. 05-1752

) 06-0029

EDWARD QUINLAN, et al., )

)

 Appellees. )

AMBROSE, Chief District Judge.

ORDER OF COURT

AND NOW, this 31st day of July, 2006, after careful consideration and for the reasons

set forth in the accompanying Opinion, it is Ordered that the Order of the Bankruptcy Court

dismissing, with prejudice, the actions removed from the Allegheny County Court of

Common Pleas at GD 5-14878 and GD 5-14890, is REVERSED. This action is REMANDED to the

Bankruptcy Court, whereupon the Bankruptcy Court shall remand the actions to the Court of

Common Pleas of Allegheny County, Pennsylvania. 

 BY THE COURT:

 /S/ Donetta W. Ambrose

 Donetta W. Ambrose, 

 Chief U. S. District Judge

Case 05-02847-JKF Doc 32 Filed 07/31/06 Entered 07/31/06 13:54:41 Desc Main Case 2:05-cv-01752-DWA Document 11 Filed 07/31/2006 Page 5 of 5


Document Page 5 of 5