1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-20-1994

Sun Buick, Inc. v. Saab Cars USA, Inc.

Precedential or Non-Precedential:

Docket 93-7476

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 93-7476 

 

SUN BUICK, INC., t/a Sun Buick-Saab Inc.; 

EUGENE J. SCHLANGER, 

 Appellants

v. 

SAAB CARS USA, INC. 

 Stephen A. Melnick, 

 Intervenor-Appellant, Per Clerk 

 Order of September 10, 1993 

 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. Civ. No. 93-00429) 

 

Argued February 28, 1994 

Before: SLOVITER, Chief Judge, 

ALITO, Circuit Judge, and ROBINSON1, District Judge 

(Filed June 20, 1994) 

Joseph R. Solfanelli 

Scranton, PA 18503 

 Attorney for Appellants 

James A. Mollica, Jr. (Argued) 

Timothy Murray 

Mollica, Murray & Hogue 

Pittsburgh, PA 15219 

 Attorney for Appellee 

James T. Shoemaker (Argued) 

Hourigan, Kluger, Spohrer & Quinn 

 

1Hon. Sue L. Robinson, United States District Judge for the 

District of Delaware, sitting by designation. 
2 

Wilkes-Barre, PA 18701 

 Attorney for Intervenor-appellant 

OPINION OF THE COURT

SLOVITER, Chief Judge. 

 The threshold issue presented by this appeal is whether 

an administrative agency, specifically the Pennsylvania Board of 

Vehicle Manufacturers, Dealers and Salespersons ("Pennsylvania 

Board of Vehicles"), should be considered a "State court" for 

purposes of allowing removal from it under 28 U.S.C. § 1441(a) 

(1988). The issue is a legal one over which our review is 

plenary. 

I.

 In September 1992, Sun Buick, Inc., t/a Sun Buick-Saab, 

Inc., and Eugene Schlanger (collectively "Sun Buick"), who 

operated a Buick dealership, purchased a Saab franchise and 

entered into a franchise agreement with Saab Cars U.S.A., Inc. 

Sun Buick operated the Saab dealership out of the same location 

that it was operating the Buick dealership it owned. 

 On January 26, 1993, Sun Buick entered into an 

agreement to sell the Saab franchise to intervenor Stephen 

Melnick. The agreement was contingent on Melnick securing a 

dealership from Saab and he began to complete the necessary 

paperwork. In the meanwhile, on February 11, 1993 Sun Buick sold 

the Buick dealership to S.B.I. Management Corp. S.B.I. took over 

Sun Buick's lot space and its dealer license, thereby divesting 

the Saab dealership of both a location and a license. 
3 

 Because Saab had informed S.B.I. that Saab operations 

could not continue on that lot, Sun Buick suggested to Saab two 

alternative locations on which it could operate the Saab 

dealership until completion of the sale to Melnick. Saab 

rejected the suggested locations allegedly because it had not 

been given enough time to evaluate them, noting that allowing a 

relocation at that time would create instability as the 

dealership would presumably be moving again once it was sold. 

 In a letter dated February 23, 1993, Saab rejected 

Melnick as a dealer on the ground that he did not have the staff 

or facilities to begin operation of a dealership. In the same 

letter, Saab terminated its franchise with Sun Buick on three 

grounds: (1) Sun Buick lost its dealer license when it sold the 

Buick dealership on February 11; (2) since that time and 

continuing at least seven business days, no Saab operations were 

conducted at the approved facility; and (3) Sun Buick's interest 

in the approved facility was terminated in breach of its 

obligation to maintain the facility. 

 The termination was effective immediately although Saab 

acknowledged that Pennsylvania law requires that a manufacturer 

give a dealer 60 days notice before termination except in a 

situation where "the nature or character of the reason for 

termination . . . is such that the giving of such notice would 

not be in the public interest." Pa. Stat. Ann. tit. 63, 

§818.9(c) (Supp. 1993). Saab claimed that immediate termination 

was in the public interest because Saab operations had ceased and 

Sun Buick was unlicensed. Saab alleged that it wished to be able 
4 

to establish replacement Saab representation as soon as possible 

so that Saab customers in the area would have access to service. 

 On March 2, 1993, Sun Buick filed a complaint with the 

Pennsylvania Board of Vehicles alleging that Saab's actions 

violated the Board of Vehicles Act, Pa. Stat. Ann. tit. 63, 

§818.1 et seq. (Supp. 1993), by terminating the franchise without 

good cause and the required 60 days notice,2 and in bad faith. 

Sun Buick also alleged that Saab had unreasonably withheld 

consent to the sale to Melnick in violation of section 

818.9(b)(3).3 On March 17, Sun Buick filed a second complaint 

with the Board of Vehicles alleging that Saab "improperly and 

unfairly rejected the request for approval of the relocation of 

[Sun Buick's] dealership facility." App. at 37. The Board 

consolidated the two complaints. 

 

2Pa. Stat. Ann. tit. 63, § 818.9(c) (Supp. 1993) provides in 

relevant part that: 

It shall be a violation of this act for any 

manufacturer . . . to unfairly, without due 

regard to the equities . . . and without just 

provocation cancel the franchise of any 

distributor. . . . Not less than 60 days 

advance notice of such termination . . . 

shall be given . . . unless the nature and 

character of the reason for termination . . . 

is such that the giving of such notice would 

not be in the public interest. 

3Pa. Stat. Ann. tit. 63 § 818.9(b)(3) (Supp. 1993) provides that 

it is a violation of the Act for any manufacturer to: 

Unreasonably withhold consent to the sale, 

transfer or exchange of the franchise to a 

qualified buyer capable of being licensed as 

a new vehicle dealer in this Commonwealth. 
5 

 Saab removed the action to federal district court on 

March 29, 1993. Melnick filed a motion to intervene, Sun Buick 

moved to remand to the Board, and Saab moved to dismiss. The 

district court filed an opinion and order on June 23, 1993: (1) 

denying a remand; (2) granting a dismissal for failure to state a 

claim; and (3) dismissing the motion to intervene as moot. Sun 

Buick and Melnick appeal.4

II.

 We must consider at the outset the underlying 

jurisdictional issue presented by the district court's refusal to 

remand this case to the Pennsylvania Board of Vehicles. 28 

U.S.C. § 1441(a) (1988) governs the removability of actions from 

state to federal court and provides in relevant part that "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" (emphasis added). Although Sun Buick 

did not contend in its brief that the Board of Vehicles was not a 

"court" for purposes of section 1441, we raised the issue sua 

sponte pursuant to our obligation to be assured of our own 

jurisdiction. See Trent Realty Assocs. v. First Fed. Sav. & Loan 

Ass'n, 657 F. 2d 29, 35 (3d Cir. 1981) ("A federal court is bound 

to consider its own jurisdiction preliminary to consideration of 

the merits."). 

A. 

The "Functional Test"

 

4Melnick did not file a timely appeal but we granted his motion 

to intervene on behalf of the appellants. 
6 

 On its face, the removal statute limits removal to 

cases pending before a state "court." This should be 

dispositive, as the Pennsylvania Board of Vehicles is, by 

definition, not a "court." 

 The district court found, nonetheless, that the 

Pennsylvania Board of Vehicles was a "court" for purposes of 

removal because "an examination of its functions . . . revealed 

that it was acting in an adjudicatory manner rather than in an 

administrative one." District court op. at 3-4. In so holding, 

it was following the prior determination by a judge of the same 

court in Corwin Jeep Sales & Service, Inc. v. American Motors 

Sales Corp., 670 F. Supp. 591, 594-95 (M.D. Pa. 1986), which 

treated the Pennsylvania Board as a "court" because it would be 

adjudicating a dispute between private parties, interpreting a 

franchise contract and utilizing the same procedures that courts 

use in deciding such disputes. 

 The genesis of the "functional test" for purposes of 

removal appears to have been the decision in Tool & Die Makers 

Lodge No. 78 International Ass'n of Machinists v. General 

Electric Co. X-Ray Dep't, 170 F. Supp. 945 (E.D. Wis. 1959), in 

which the district court refused to remand to the Wisconsin 

Employment Relations Board complaints filed by unions alleging 

that an employer had engaged in unfair labor practices and 

violated the collective bargaining agreement. The court found 

that the Employment Board was a "court" because the subject 

matter was in essence breach of contract, the procedures that the 

Board employed, e.g., taking depositions and issuing subpoenas, 
7 

were those of a court, and the Board could enter an order 

requiring the person complained of to cease and desist from the 

contract violations and reinstate the employees with or without 

pay. 

 Two decades after the Tool & Die decision, the Court of 

Appeals of the Seventh Circuit adopted the "functional test" to 

allow removal from an administrative agency. In Floeter v. C. W. 

Transport, Inc., 597 F.2d 1100 (7th Cir. 1979), the court held 

that the Wisconsin Employment Relations Commission was a "court" 

for removal purposes. The court adopted a "functional test" that 

requires "evaluat[ing] the functions, powers, and procedures of 

the state tribunal and . . . the respective state and federal 

interests in the subject matter and in the provision of a forum." 

Id. at 1101-02. In deciding removal was proper, the court relied 

on the facts that the action was one for breach of contract 

between private parties, it would have to be decided by federal 

law, the procedures and process of the Commission were 

essentially judicial, and the Supreme Court of Wisconsin had 

recognized that the Commission was vested with "judicial power." 

Id. (quoting Layton Sch. of Art & Design v. Wisconsin Employment 

Relations Comm'n, 262 N.W.2d 218, 230 (Wis. 1978)). 

 Similarly, the First Circuit has stated, albeit in 

dictum, in Volkswagen de Puerto Rico, Inc. v. Puerto Rico Labor 

Relations Board, 454 F.2d 38 (1st Cir. 1972), that an action 

before the Puerto Rico Labor Relations Board would be removable 

under the "functional test." The court reasoned that the 

proceedings before the Board were between private parties and 
8 

involved essentially a breach of contract dispute. Significantly, 

the court relied on the judicial nature of the Board in general 

and not just on the judicial nature of the current proceedings by 

emphasizing the Board's "lack of rule-making or 'legislative' 

power," "its adjudicative format," and the reference by the 

Puerto Rico Supreme Court to the Board's function as being a 

"quasi-judicial" one. Id. at 44 & n.9. The court lastly 

reasoned that, in balancing federal and state interests, the 

federal interest in deciding federal law outweighed whatever 

interest the state may have. See id. at 45. 

 The "functional test" was also used by the Fourth 

Circuit in Kolibash v. Committee on Legal Ethics, 872 F.2d 571 

(4th Cir. 1989), in its holding that a United States Attorney 

could remove a state bar disciplinary proceeding to the federal 

court. The court reasoned that the proceeding was adjudicatory 

in nature in that the Committee was an arm of the state court and 

conducted itself as a court in holding evidentiary hearings and 

taking testimony. See id. at 576. The force of Kolibash on the 

issue before us is diminished, however, because removal in 

Kolibash was based on 28 U.S.C. § 1442(a),5 the federal officer 

removal statute, which is broadly construed, as distinguished 

 

528 U.S.C. § 1442(a) (1988) provides in relevant part: 

A civil action or criminal prosecution 

commenced in a State court against any of the 

following persons may be removed by them to 

the district court . . . : 

 (1) Any officer of the United 

States . . . for any act under 

color of such office . . . . 
9 

from section 1441, the removal statute here, which is strictly 

construed. See id; Abels v. State Farm Fire & Casualty Co., 770 

F.2d 26 (3d Cir. 1985) (28 U.S.C. § 1441(a) "should be strictly 

construed and all doubts should be resolved in favor of remand"). 

 In contrast to some of the above cases, the functional 

test was disapproved in County of Nassau v. Cost of Living 

Council, 499 F.2d 1340 (Temp. Emer. Ct. App. 1974), where the 

court rejected removal from the Cost of Living Council which had 

issued an order limiting pay increases. The court stated that 

section 1441(a) contemplates removal from other court proceedings 

rather than the "interruption of administrative proceedings." Id.

at 1343; see also California Packing Corp. v. I.L.W.U. Local 142, 

253 F. Supp. 597, 598-99 (D. Haw. 1966) (holding removal from 

administrative agencies improper because statute speaks to 

removal only from courts and finding Tool & Die reasoning 

"strained"). 

 The courts that have adopted the "functional test" for 

interpreting what is a "court" under section 1441 have relied in 

large part on the reasoning used by the Supreme Court in Upshur 

County v. Rich, 135 U.S. 467 (1890), where the Court held that 

notwithstanding the nomenclature of "county court" as the entity 

from which removal was sought, the case did not involve a 

removable "suit". It is true that the Court looked to the actual 

powers, composition and procedures of the entity in making its 

decision, saying: 
10 

The principle . . . is, that a proceeding, 

not in a court of justice, but carried on by 

executive officers in the exercise of their 

proper functions, as in the valuation of 

property for the just distribution of taxes 

or assessments, is purely administrative in 

its character, and cannot, in any just sense, 

be called a suit . . . . 

 [T]he appeal from the assessment was 

made to the 'county court' eo nomine, yet 

that this is not a judicial body, invested 

with judicial functions, except in matters of 

probate; but is the executive or 

administrative board of the county, charged 

with the management of its financial and 

executive affairs. 

Id. at 477; see also Village of Walthill v. Iowa Elec. Light & 

Power Co., 228 F.2d 647, 648-53 (8th Cir. 1956) (holding removal 

from the Nebraska "condemnation court" improper in that "[t]he 

three-judge condemnation court [was] in reality just another 

board of appraisers"). 

 It does not follow that because Upshur County held that 

a court is not necessarily a "court" for removal purposes, the 

Supreme Court has endorsed the view that an administrative agency 

might be a "court" for removal purposes. Therefore, we find 

questionable the reasoning of the Tool & Die court that the 

Supreme Court has adopted a functional test which would require 

us to judge the propriety of removal from a tribunal "by 

reference to the procedures and functions of the State tribunal 

rather than the name by which the tribunal is designated." 170 

F. Supp. at 950. 

 There is further evidence in other Supreme Court 

decisions from the same era that Upshur County did not broadly 
11 

adopt a "functional test" by which an administrative body would 

be treated as a "court" for federal removal purposes simply 

because it performs a judicial function. In those cases, when 

the Court held that removal was proper it was careful to note 

that the body in question was a judicial body under state law. 

For example, in Madisonville Traction Co. v. Saint Bernard Mining 

Co., 196 U.S. 239, 250-51 (1905), the Court stated: 

We cannot doubt, in view of the authorities, 

that the case presented in the County Court 

was a "suit" or "controversy between citizens 

of different States," within the meaning of 

the Constitution and the laws of the United 

States. It was, as already said, a judicial 

proceeding initiated in a tribunal which 

constitutes a part of the judicial 

establishment of Kentucky, as ordained by its 

Constitution . . . ; and the court, although 

charged with some duties of an administrative 

character, is a judicial tribunal and a court 

of record. 

(emphasis added). 

 Similarly, in Commissioners of Road Improvement 

District No. 2 v. St. Louis Southwestern Railway Co., 257 U.S. 

547, 556-57 (1922), the Court, in upholding a removal from an 

Arkansas County Court, noted that the Arkansas constitution 

invested that court with "judicial power" and that the state 

supreme court had "held the County Court to be a court and 

capable of rendering judgment in a proceeding whose judicial 

character is much more questionable than here." We have found no 

case from the Supreme Court, nor have the parties cited one, 

holding that a case can be removed from an administrative agency 

to federal court on the grounds that the administrative agency is 

functionally a court. 
12 

 This court has previously examined the status of 

administrative agencies as "courts" in another context, i.e., the 

section of the Clean Air Act, 42 U.S.C. § 7401 et seq. (1988), 

which provides that a private citizen enforcement action may not 

proceed if "the Administrator or State has commenced . . . a 

civil action in a court of the United States or a State." 42 

U.S.C. § 7604(b)(1)(B) (1988) (emphasis added). In Baughman v. 

Bradford Coal Co., 592 F.2d 215 (3d Cir.), cert. denied, 441 U.S. 

961 (1979), we had to decide whether the federal court had 

jurisdiction over the private action notwithstanding that the 

Pennsylvania Department of Environmental Resources had already 

begun an action against the same defendant before the 

Pennsylvania Environmental Hearing Board. We stated that for 

that purpose, "an administrative board may be a 'court' if its 

powers and characteristics make such a classification necessary 

to achieve statutory goals." Id. at 217. However, we held that 

the Pennsylvania Hearing Board was not a court in that it "lacked 

the power to enjoin violations" of the company's effluent 

restrictions, was "empowered only to assess a penalty which 

[could] not exceed $10,000," and there was "lack of citizen 

intervention of right in the agency proceeding." Id. at 218-219. 

 We considered the identical citizen suit provision, 

albeit in the Clean Water Act, in Student Public Interest 

Research Group v. Fritzsche, Dodge & Olcott, Inc., 759 F.2d 1131, 

1136 (3d Cir. 1985), where we held, relying on Baughman, that an 

EPA enforcement action was not a "court" proceeding. We 

characterized the Baughman inquiry as a dual one: 
13 

The first question to be answered is whether 

the coercive powers that the administrative 

agency possesses compel compliance with 

effluent limitations . . . . The second 

inquiry concerns the procedural similarities 

the agency proceeding might have to a suit in 

federal court. 

Id. at 1137. We noted that the EPA's enforcement powers under 

the Act were very limited, consisting of the power to issue 

"permits, modify permits, and terminate permits for 

noncompliance," and that it could not impose any civil penalty, 

while a district court could assess fines of up to $10,000 a day. 

Id. at 1138. We also noted that the procedure the EPA followed 

in its enforcement proceedings did not resemble that of a court 

in that there was no independent decisionmaker, no witnesses, no 

records kept, and no evidence presented by opposing parties. See 

also Proffitt v. Commissioners, Township of Bristol, 754 F.2d 

504, 506-07 (3d Cir. 1985) (under identical citizen suit 

provisions in other environmental statutes, EPA's compliance 

order not a suit in a court because the administrative tribunal 

did not have "power to accord relief equivalent to that available 

from a court"). 

 We need not decide the viability of the dictum in these 

cases suggesting that a court's right to proceed with a citizen's 

suit in an environmental case might be precluded by action before 

an administrative agency as well as before a court, because the 

issue here is a different one. However, it is of some interest 

that the Baughman reasoning was rejected by both the Second and 

Ninth Circuits. In Friends of the Earth v. Consolidated Rail 
14 

Corp., 768 F.2d 57 (2d Cir. 1985), the Second Circuit interpreted 

the same citizen suit provision of the Clear Air Act that was at 

issue in Baughman. The court, reasoning that when a statute is 

unambiguous the court's task is simply to enforce it as written, 

held that it would be "inappropriate to expand th[e] language to 

include administrative enforcement actions" as equivalent to 

those of civil actions in a "court." Id. at 62. Similarly, the 

Ninth Circuit rejected Baughman in Sierra Club v. Chevron U.S.A., 

Inc., 834 F.2d 1517, 1525 (9th Cir. 1987), stating "[w]e prefer 

the Second Circuit's reading . . . over the Third Circuit's 

reading." The court emphasized that it would not take the 

"extraordinary step of ignoring the plain language of the 

statute." Id. 

 Even if we were still inclined to follow Baughman's 

application of the "functional" test for purposes of permitting 

maintenance of a private citizen enforcement suit in 

environmental litigation, the removal context is sufficiently 

distinct to make the cases distinguishable. What is significant 

is that no case in this court ever held that an administrative 

agency was actually a "court." Nevertheless, we may pretermit 

the decision whether removal under section 1441(a) from an 

administrative agency is ever permissible in an exceptional case, 

because it is clear that the Pennsylvania Board of Vehicles would 

not qualify under any circumstances. 

B. 

Status of the Pennsylvania Board of Vehicles
15 

 Under any test, the Pennsylvania Board of Vehicles 

would not qualify as a court because its lack of judicial 

attributes is similar to that of the agencies which we held were 

not courts in the environmental cases. As we stated in Baughman, 

"[g]enerally, the word 'court' in a statute is held to refer only 

to the tribunals of the judiciary and not to those of an 

executive agency with quasi-judicial powers." 592 F.2d at 217. 

It follows that even if an entity is not called a "court," it 

must have the attributes of a court before it should be 

considered as one. 

 Rather than possessing the powers of a court, the 

Pennsylvania Board of Vehicles administers and enforces the Board 

of Vehicles Act. It regulates the licensing of salespersons, 

dealers, brokers and manufacturers. It passes on the 

qualifications for licensure, investigates allegations of 

wrongful acts, and brings criminal prosecutions for unauthorized 

practices (i.e. acts as a prosecutor). An examination of the 

Board's powers and duties makes it clear that its powers are 

those of the usual type of administrative agency rather than 

those of a court.6 

 

6Section 818.4 entitled "Powers and duties of board" provides: 

The board shall have the power and its duty 

shall be to: 

 (1) Provide for and regulate the licensing 

of salespersons, dealers, brokers, 

manufacturers, factory branches, 

distributors, distributor branches, factory 

or distributor representatives and 

wholesalers as defined in this act. 
16 

 

 (2) Review and pass upon the 

qualifications of applicants for licensure 

and to issue, except as otherwise provided 

herein, a license to engage in the said 

businesses to any applicant who is approved 

by the board and who meets the requirements 

of this act. 

 (3) Investigate on its own initiative, 

upon complaint of the Department of 

Transportation, Department of Community 

Affairs, Department of Revenue or the Office 

of the Attorney General, or upon the verified 

complaint in writing of any person, any 

allegations of the wrongful act or acts of 

any licensee or person required to be 

licensed hereunder. 

 (4) Administer and enforce this act and to 

impose appropriate administrative discipline 

upon licensees found to be in violation of 

this act. 

 (5) Bring criminal prosecutions for 

unauthorized, unlicensed or unlawful 

practices and bring an action to enjoin such 

practices. 

 (6) Require each licensee to register 

biennially with the board. 

 (7) Keep a record showing the names and 

addresses of all licensees licensed under 

this act. 

 (8) Keep minutes and records of all its 

transactions and proceedings especially with 

relation to the issuance, denial, 

registration, formal reprimand, suspension 

and revocation of licenses. In all actions 

or proceedings in any court, a transcript of 

any board record or any part thereof, which 

is certified to be a true copy by the board, 

shall be entitled to admission in evidence. 

 (9) Adopt, promulgate and enforce such 

rules and regulations not inconsistent with 

this act as are deemed necessary and proper 

to effectuate the provisions of this act, 
17 

 In the cases following Baughman where we determined 

that various administrative actions were not proceedings in a 

"court," we held that an administrative agency would not be 

considered a court if it did not have the "power to accord relief 

equivalent to that available from a court." Proffitt, 754 F.2d 

at 506-07. The Pennsylvania Board of Vehicles does not have such 

power in that it cannot award damages. Its powers of action to 

afford relief are circumscribed: it can only enjoin a franchise 

termination alleged to be in violation of section 818.9(c) or the 

addition or relocation of a new vehicle dealer that is in 

violation of section 818.18,7 and it can impose disciplinary 

sanctions. As the Pennsylvania Commonwealth Court has 

recognized: 

 

including but not limited to, established 

place of business. 

 (10) Submit annually, to the 

Transportation Committees of the House and 

Senate, a description of the types of 

complaints received, status of the cases, 

board action which has been taken and length 

of time from the initial complaint to final 

board resolution. 

 (11) Submit annually to the department an 

estimate of the financial requirements of the 

board for its administrative, investigative, 

legal and miscellaneous expenses. 

 (12) Submit annually to the House and 

Senate Appropriations Committees, 15 days 

after the Governor has submitted his budget 

to the General Assembly, a copy of the budget 

request for the upcoming year which the board 

previously submitted to the department. 

7Section 818.18 governs when a new vehicle dealer may be 

established or relocated into a relevant market area where the 

same line-make is already represented. 
18 

The Act provides for a temporary stay in the 

event of a franchise termination appeal 

brought under Section 9(c). It does not, 

however, imbue the Board with injunctive 

powers in any other area. Consequently, any 

determination by the Board that a 

manufacturer has acted unreasonably in 

withholding consent to the sale of a 

franchise under Section 9(b)(3) could result 

only in a disciplinary sanction against the 

manufacturer. 

University Lincoln Mercury, Inc. v. Pennsylvania Board of Vehicle 

Manufacturers, 576 A.2d 1146, 1150 (Pa. Commw. Ct. 1990). 

The limited nature of the Board's powers was also 

emphasized in Trailmobile, Inc. v. State Board of Manufacturers, 

612 A.2d 574 (Pa. Commw. Ct. 1992), appeal denied, 634 A.2d 226 

(Pa. 1993): 

 The Act grants certain disciplinary 

powers to the Board. When the Board 

determines that a violation of the Act has 

been committed it may formally reprimand, 

suspend the license of, or refuse to issue or 

renew the license of the violator. 

Additionally, Section 19 of the Act provides 

that the Board may levy a civil penalty of 

$1,000 upon any current licensee who violates 

a provision of the Act. 

 We reject Tri-State's request for 

additional relief because the Act is specific 

in its grant of power to the Board. We have 

already stated that the power and authority 

to be exercised by administrative commissions 

must be conferred clearly and unmistakably by 

the legislature; a doubtful power does not 

exist. Other than the temporary stay that 

may be issued in a suspected violation of 

Section 18 of the Act, and the permanent 

injunction that may issue if the Board 

determines that there is good cause for not 

permitting the addition or relocation of a 

new vehicle dealer under Section 18, the Act 

does not grant the Board injunctive powers. 
19 

Id. at 576 (citations omitted). The fact that the Board can only 

assess fines of $1,000 is significant considering our reliance in 

Baughman on the Environmental Hearing Board's ability to impose 

fines of only $10,000 as one of the factors influential to our 

finding that the Board was not a "court." 592 F.2d at 1218. 

 We assume that the Pennsylvania legislature expressly 

provided that any person who may be injured by a violation of the 

Act may bring an action for damages, including punitive damages, 

or equitable relief including injunctive relief in any court of 

competent jurisdiction8 in recognition of the Board's inability 

to award damages or full injunctive relief. 

 Not only does the Pennsylvania Board of Vehicle's have 

a dearth of judicial-type powers but its composition also has 

none of the characteristics of a court such as disinterestedness, 

 

8Section 818.20 entitled "Civil actions for violations" provides: 

 (a) Action for damages. -- Notwithstanding 

the terms, provisions or conditions of any 

agreement or franchise or other terms or 

provisions of any novation, waiver or other 

written instrument, any person who is or may 

be . . . injured in his business or property 

by a violation of a provision of this act 

relating to that franchise, or any person so 

injured because he refuses to accede to a 

proposal for an arrangement which, if 

consummated, would be in violation of this 

act, may bring an action for damages and 

equitable relief, including injunctive 

relief, in any court of competent 

jurisdiction. 

 (b) Punitive Damages. -- If any person 

engages in continued multiple violations of a 

provision or provisions of this act, the 

court may award punitive damages in addition 

to any other damages under this act. 
20 

separation from the executive and learnedness in the law. The 

Board is composed of three new car dealers, three used car 

dealers, one mobile home dealer, one salesperson, one 

recreational dealer, one motorcycle dealer, the Commissioner of 

Professional and Occupational Affairs, the Secretary of the 

Department of Transportation or his designee, the Director of 

Consumer Protection in the Office of Attorney General or his 

designee and four members of the general public having no 

connection to the vehicle business. See Pa. Stat. Ann. tit. 63, 

§ 818.3(a) (Supp. 1993). This composition is unlike that of a 

court in that it is composed mostly of people who have jobs other 

than that of serving as judges, see Pa. Const. art. 5, § 17(a) 

(mandating that judges devote full time to their judicial 

duties), and includes members of the executive branch as well as 

persons who are likely to be partial toward dealers and their 

industry. While lay persons may sometimes be well versed in the 

law, the absence of any requirement of legal knowledge or 

experience by almost all of the members of the Board is striking. 

 Additionally, Pennsylvania, itself, does not consider 

the Board a court. See Trailmobile, 612 A.2d at 576; University 

Lincoln Mercury, 576 A.2d at 1150. It is not described in the 

portions of the Pennsylvania Constitution related to its court 

system, see Pa. Const. art. 5, or in the Pennsylvania statutes 

relating to the court system. See 42 Pa. Cons. Stat. Ann. et 

seq. (1981 & Supp. 1993). 

 In enumerating the ways in which the Pennsylvania Board 

of Vehicles is unlike a court, it becomes clear that Floeter, 
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Volkswagen, and Tool & Die are distinguishable on their facts. In 

both Floeter and Volkswagen, the administrative agencies had been 

acknowledged by their state supreme courts as having judicial 

powers, and the agencies had more judicial powers and procedures 

than the Pennsylvania Board of Vehicles has. The Tool & Die

court relied in part on powers that the administrative agency at 

issue there had that exceeded the powers of the Board of 

Vehicles, namely, ordering the affirmative relief of 

reinstatement of employees with pay. 

 Finally, we note that the district court in this case 

adopted the analysis used in Corwin Jeep Sales, 670 F. Supp. at 

593-95, when it held that removal was proper if the Board "was 

acting in an adjudicatory manner rather than in an administrative 

one." District court op. at 3-4. However, this reasoning 

inappropriately conflates two requirements of the removal 

statute. Under 28 U.S.C. § 1441(a), "any civil action" of which 

the district courts have original jurisdiction and was "brought 

in a State court" may be removed to the district court. The 

requirement that it be a "civil action" is separate from the 

requirement that it be brought in a "State court." 

 The distinction was made clear in Commissioners of Road 

Improvement District No. 2 v. St. Louis Southwestern Railway, 257 

U.S. 547, 550 (1922), where the Supreme Court analyzed these 

requirements separately in deciding whether a proceeding in a 

state county court "to assess benefits and damages growing out of 

a road improvement was properly removed to the federal District 

Court." The Court, after noting that the county court had been 
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recognized by the state supreme court to be a court, went on to 

examine the proceeding to determine whether it was a "judicial 

controversy," as opposed to an administrative concern: 

Of course, the statutory designation of the 

action of a body as a judgment, or the 

phrasing of its finding and conclusion in the 

usual formula of a judicial order, is not 

conclusive of the character in which it is 

acting. When we find, however, that the 

proceeding before it has all the elements of 

a judicial controversy, to wit, adversary 

parties and an issue in which the claim of 

one of the parties against the other capable 

of pecuniary estimation, is stated and 

answered in some form of pleading, and is to 

be determined, we must conclude that this 

constitutional court is functioning as such. 

Id. at 557 (citation omitted). 

 If we analyze the status of the Pennsylvania Board of 

Vehicles separately from the nature of the proceedings before it, 

it becomes clear that, in general, the Board's procedures, 

functions, and character do not make it a court. It is therefore 

irrelevant whether the proceeding may qualify as a "civil action" 

because it is a contract dispute between two private parties, or 

even whether it could be brought as an original proceeding in the 

district court on the basis of diversity jurisdiction. The 

matter was not brought in a "State court" and therefore was not 

removable under section 1441(a). 

III.

 Applying the general principle that the removal statute 

is to be strictly construed, we hold that an administrative 

agency without the attributes of a court should not be considered 
23 

a "State court" under 28 U.S.C. § 1441(a). Therefore, we will 

reverse the judgment of dismissal of the district court and 

remand this case to the district court with directions that it be 

remanded to the Pennsylvania Board of Vehicles. 
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