J-A17017-19

                            2020 PA Super 11

 KENNETH LYNN, CHARLIE AGNEW,           :   IN THE SUPERIOR COURT OF
 AND MARGARET KNAPP, ON BEHALF          :        PENNSYLVANIA
 OF THEMSELVES                          :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 ARIA HEALTH SYSTEM, ARIA               :   No. 3741 EDA 2017
 HEALTH, ROY A. POWELL, AND             :
 MICHAEL E. PEPE                        :
                                        :
                   Appellants           :

                    Appeal from the Order May 15, 2017
   In the Court of Common Pleas of Philadelphia County Civil Division at
                No(s): November Term, 2009 No. 004104

 KENNETH LYNN, ACADIA WILCOX,           :   IN THE SUPERIOR COURT OF
 LORETTA MCDONNEL AND                   :        PENNSYLVANIA
 GERARDINA ILARIA                       :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 JEFFERSON HEALTH SYSTEM, INC.,         :   No. 3742 EDA 2017
 THOMAS JEFFERSON UNIVERSITY            :
 HOSPITALS, INC., MAGEE                 :
 REHABILITATION HOSPITAL, MAIN          :
 LINE HEALTH, INC., ALBERT              :
 EINSTEIN HEALTHCARE NETWORK,           :
 AND ARIA HEALTH SYSTEM                 :
                                        :
                   Appellants           :

                    Appeal from the Order May 15, 2017
   In the Court of Common Pleas of Philadelphia County Civil Division at
                    No(s): No. 004107 Nov. Term 2009

 KENNETH LYNN, ACADIA WILCOX,           :   IN THE SUPERIOR COURT OF
 LORETTA MCDONNELL, AND                 :        PENNSYLVANIA
 GERARDINA ILARIA, ON BEHALF OF         :
 THEMSELVES AND OTHERS                  :
 SIMILARLY SITUATED                     :
J-A17017-19


                                         :
                                         :
              v.                         :
                                         :   No. 3743 EDA 2017
                                         :
 JEFFERSON HEALTH SYSTEM, INC.,          :
 THOMAS JEFFERSON UNIVERSITY             :
 HOSPITALS, INC., MAGEE                  :
 REHABILITATION HOSPITAL, MAIN           :
 LINE HEALTH INC., ALBERT                :
 EINSTEIN HEALTHCARE NETWORK,            :
 AND ARIA HEALTH SYSTEM                  :
                                         :
                                         :
 APPEAL OF: ALBERT EINSTEIN              :
 HEALTHCARE NETWORK                      :

                    Appeal from the Order May 15, 2017
   In the Court of Common Pleas of Philadelphia County Civil Division at
                No(s): November Term, 2009 No. 004107

 JOHN DUNCHESKIE, DIANE READ,            :   IN THE SUPERIOR COURT OF
 THELMA HARRIS AND ELEANOR               :        PENNSYLVANIA
 JACKSON, ON BEHALF OF                   :
 THEMSELVES AND OTHERS                   :
 SIMILARLY SITUATED                      :
                                         :
                                         :
              v.                         :
                                         :   No. 3744 EDA 2017
                                         :
 TEMPLE UNIVERSITY HEALTH                :
 SYSTEM, INC., TEMPLE UNIVERSITY         :
 HOSPITAL INC., EPISCOPAL                :
 HOSPITAL, JEANES HOSPITAL,              :
 TEMPLE UNIVERSITY CHILDREN'S            :
 MEDICAL CENTER, EDMOND                  :
 NOTEBAERT, AND ROBERT                   :
 BIRNBRAUER                              :
                                         :
                   Appellants            :

                   Appeal from the Order May 15, 2017




                                   -2-
J-A17017-19



   In the Court of Common Pleas of Philadelphia County Civil Division at
                No(s): November Term, 2009 No. 004110

 CASSANDRA RUFF AND KESHA                :   IN THE SUPERIOR COURT OF
 CARDWELL, ON BEHALF OF                  :        PENNSYLVANIA
 THEMSELVES AND OTHERS                   :
 SIMILARLY SITUATED                      :
                                         :
                                         :
              v.                         :
                                         :
                                         :   No. 3745 EDA 2017
 ALBERT EINSTEIN HEALTHCARE              :
 NETWORK AND ALBERT EINSTEIN             :
 MEDICAL CENTER                          :
                                         :
                   Appellants            :

                    Appeal from the Order May 15, 2017
   In the Court of Common Pleas of Philadelphia County Civil Division at
                No(s): November Term, 2009 No. 004111

 COLLETTE DAVIS, ERICA WILLIAMS,  :          IN THE SUPERIOR COURT OF
 KEVIN KELLER, AND CHARLENE       :               PENNSYLVANIA
 MURDOCH, ON BEHALF OF            :
 THEMSELVES AND OTHERS            :
 SIMILARLY SITUATED               :
                                  :
                                  :
            v.                    :
                                  :          No. 3746 EDA 2017
                                  :
 ABINGTON MEMORIAL HOSPITAL,      :
 ABINGTON MEMORIAL HEALTH CARE :
 CORPORATION, LANSDALE            :
 HOSPITAL CORPORATION, RICHARD :
 L. JONES, JR., AND MEGHAN PATTON :
                                  :
                  Appellants      :

                    Appeal from the Order May 15, 2017
   In the Court of Common Pleas of Philadelphia County Civil Division at
                No(s): November Term, 2009 No. 004106



                                   -3-
J-A17017-19


BEFORE: PANELLA, P.J., OLSON, J., and FORD ELLIOTT, P.J.E.

OPINION BY OLSON, J.:                              FILED JANUARY 22, 2020

       Appellants, Aria Health System, et al., appeal from the trial court’s May

15, 2017 orders, which granted the “Motion to Reinstate the Third Amended

Complaint Pursuant to 42 Pa.C.S.A. § 5103(b)” filed by plaintiffs, Kenneth

Lynn, et al. (hereinafter “Plaintiffs”).1 We vacate and remand.

       The United States Court of Appeals for the Third Circuit (“Third Circuit”)

summarized the facts and procedural posture of this case, as they existed at

the time the United States District Court for the Eastern District of

Pennsylvania dismissed Plaintiffs’ Third Amended Complaint. The Third Circuit

explained:

         The five cases on appeal are among several similar actions
         brought by a single law firm alleging systemic underpayment
         in the healthcare industry. The parties are nurses and other
         patient-care professionals, on behalf of a putative class, and
         their alleged employers. Allegedly, [Appellants] maintained
         three unlawful timekeeping and pay policies (collectively, the
         “Policies”). First, under the “Meal Break Deduction Policy,”
         [Appellants’] timekeeping system automatically deducted
         [30] minutes of pay daily for meal breaks without ensuring
         that the employees actually received a break. Second, under
         the “Unpaid Pre- and Post–Schedule Work Policy,”
         [Appellants] prohibited employees from recording time
         worked outside of their scheduled shifts. Third, under the
         “Unpaid Training Policy,” [Appellants] did not pay employees
____________________________________________


1  This appeal is composed of five cases and six numbered appeals. In this
opinion, we consider the six consolidated appeals together, as the parties’
filings, the court orders, and the procedural posture in the cases and the
appeals are substantively identical. Therefore, in this opinion, reference to
one record, court order, or court opinion encompasses all five cases and all
six numbered appeals.


                                           -4-
J-A17017-19


       for time spent at “compensable” training sessions. Because
       of the Policies, [Plaintiffs] allege that they “regularly worked
       hours both under and in excess of [40] per week and were
       not paid for all of those hours.”

       In November 2009, [Plaintiffs] filed parallel complaints in the
       United States District Court for the Eastern District of
       Pennsylvania against [Appellants], asserting violations of the
       [Fair Labor Standards Act (“FLSA”)], 29 U.S.C. §§ 201, et
       seq.; the Employee Retirement Income Security Act of 1974
       (“ERISA”), 29 U.S.C. §§ 1001, et seq.[fn.4]; and the Racketeer
       Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.
       §§ 1961, et seq. Less than one week later, the same
       individual plaintiffs filed suit in the Court of Common Pleas of
       Philadelphia County, alleging that the Policies violated the
       Pennsylvania Wage Payment and Collection Law (“PWPCL”),
       43 [P.S.] §§ 260.[1], et seq.; the Pennsylvania Minimum
       Wage Act (“PMWA”), 43 [P.S.] §§ 333.101, et seq.; and
       Pennsylvania common law.             [In the case of Davis v.
       Abington Memorial Hospital, the plaintiffs’ federal
       complaint was docketed at Case No. 09-5520 (hereinafter
       “the 2009 Federal Court Docket”) and the plaintiffs’ court of
       common pleas complaint was docketed at No. 09-11-4106
       (hereinafter “the 2009 Court of Common Pleas Docket”)].

          [fn.4] [Plaintiffs’] ERISA claims were: failure to keep
          accurate records sufficient to determine benefits in
          violation of ERISA's recordkeeping provision under 29
          U.S.C. § 1059(a)(1) (ERISA § 209(a)(1)); and breach of
          fiduciary duty under 29 U.S.C. § 1104(a)(1) (ERISA
          § 404(a)(1)).

       [Appellants] timely removed [the] . . . state court actions to
       federal court, on the basis that several of the claims were
       completely preempted by ERISA § 502(a)(1), 29 U.S.C.
       § 1132(a)(1), and supplemental jurisdiction existed over the
       remaining claims because they formed part of the same case
       or controversy. The Jefferson Health and Albert Einstein
       defendants additionally argued that the plaintiffs' PWPCL and
       breach of contract claims were completely preempted by
       § 301 of the Labor Management Relations Act (“LMRA”), 29
       U.S.C. § 185. The District Court denied [Plaintiffs'] motions
       to remand on September 15, 2010, holding that ERISA
       preempted the state claims “in full” and LMRA § 301

                                    -5-
J-A17017-19


       completely preempted [Plaintiffs'] PWPCL and breach of
       contract claims. In the same order, the [District C]ourt
       consolidated each of the state cases with its federal
       counterpart and directed [Plaintiffs] to file consolidated
       complaints.

       [Plaintiffs] filed amended complaints on October 15, 2010,
       averring, as before, that [Appellants]: denied them overtime
       in violation of the FLSA; failed to keep accurate records and
       breached their fiduciary duties in violation of ERISA; and, in
       so doing, violated RICO. The amended complaints also
       reasserted all of the state law claims. The District Court
       granted [Appellants’] joint motions to dismiss in a
       consolidated opinion. It found that the amended complaints
       did not plausibly allege that [Appellants] were [Plaintiffs']
       employers and thus failed to state claims under the FLSA or
       ERISA. It also dismissed the RICO claims, on the ground that
       the complaints did not adequately allege the predicate act of
       mail fraud. Further, it “decline[d] to exercise supplemental
       jurisdiction” over the state law claims. The [District Court]
       granted [Plaintiffs] leave to amend, but cautioned them to
       “remedy the gaping deficiencies” observed by it and other
       district courts that have dismissed substantially similar
       complaints. In particular, [Plaintiffs] were instructed to
       “clari[fy]” whether they were also seeking gap time wages.

       After [Plaintiffs] filed a second amended complaint in each
       case, the parties stipulated to the filing of third amended
       complaints. The third amended complaints, which were filed
       on February 10, 2012, abandoned the ERISA and RICO claims
       and instead sought relief solely under the FLSA and
       Pennsylvania law. [Appellants] moved to dismiss, and the
       District Court granted their motions in another consolidated
       opinion. [On August 7, 2012, the District Court] dismissed
       [Plaintiffs'] FLSA claims with prejudice on the grounds that
       they failed to plausibly allege employer-employee
       relationships between [Plaintiffs] and [Appellants] or that any
       of the named plaintiffs had worked overtime and were not
       compensated. The [District C]ourt again “decline[d] to
       exercise supplemental jurisdiction” over the remaining state
       law claims[. The District Court’s August 7, 2012 order reads
       in full:




                                    -6-
J-A17017-19


            AND NOW, this 7th day of August 2012, upon
            consideration of [Appellants’] Motion to Dismiss the Third
            Amended Complaint, Plaintiffs’ response in opposition
            thereto, and [Appellants’] reply, and for the reasons
            stated in the opinion filed this day, it is hereby ORDERED
            that the Motions are GRANTED as follows:

               1. Plaintiffs’ federal claims are DISMISSED with
               prejudice.

               2. The [District] Court declines to exercise
               supplemental jurisdiction over the remaining
               state-law claims which are DISMISSED without
               prejudice to the reassertion of these claims in state
               court to the extent Plaintiffs can do so consistent with
               the [District] Court’s prior rulings.

               The Clerk of Court is directed to CLOSE this case.

               It is so ORDERED.

        District Court Order, 8/7/12, at 1 (emphasis, citations, and
        some capitalization omitted)].

Davis v. Abington Mem’l Hosp., 765 F.3d 236, 238-240 (3rd Cir. 2014)

(some citations and footnotes omitted).

     The District Court did not remand the case to the court of common pleas.

See District Court Order, 8/7/12, at 1.

     On October 17, 2012, Plaintiffs filed, in the Court of Common Pleas of

Philadelphia County, a “Motion to Reinstate the Complaint Pursuant to 42

Pa.C.S.A. § 5103(b)” (hereinafter “First Motion to Reinstate Complaint”).

Plaintiffs filed this motion at the 2009 Court of Common Pleas Docket. This is

the same docket where Plaintiffs filed their original, court of common pleas

complaint – and was the same action that had been removed to federal court

and never remanded. Within the motion, Plaintiffs declared:

                                    -7-
J-A17017-19



          Pursuant to 42 Pa.C.S. § 5103(b), [Plaintiffs] hereby move
          [the court of common pleas] to reinstate the complaint which
          was originally filed in [the court of common pleas],
          subsequently removed to federal court by [Appellants], and
          then dismissed from federal court for lack of jurisdiction.

Plaintiffs’ First Motion to Reinstate Complaint, 10/17/12, at ¶ 2.

      Plaintiffs attached their original state court complaint – that they filed in

2009 and that Appellants had removed to federal court – to their First Motion

to Reinstate Complaint. See id. at Exhibit A.

      On November 7, 2012, Appellants filed a notice in the court of common

pleas, declaring: “[Appellants] do not oppose the relief [P]laintiffs request in

their motions – reinstatement of the complaints in [the court of common

pleas].    In so doing, [Appellants] reserve their rights to challenge the

complaints in all respects by way of preliminary objections.”          Appellants’

Notice of No Opposition, 11/7/12, at 1. Nevertheless, on November 16, 2012,

Appellants filed a notice in the court of common pleas, declaring that they had

again removed the action to the United States District Court for the Eastern

District of Pennsylvania.    Appellants’ Notice of Filing Notice of Removal,

11/16/12, at 1. As a result, on November 19, 2012, the court of common

pleas ruled that Plaintiffs’ First Motion to Reinstate Complaint was moot. Trial

Court Order, 11/16/12, at 1.

      In federal court, the cases received new docket numbers. Thus, in the

case of Davis v. Abington Memorial Hospital, the action was docketed at

No. 12-6491 (hereinafter “the 2012 Federal Court Docket”). There, Plaintiffs

filed a motion to remand and asked the District Court to remand the case to

                                      -8-
J-A17017-19



the Philadelphia County Court of Common Pleas. On September 1, 2016, the

District Court granted Plaintiffs’ motion to remand because Appellants “filed

the notices of removal before the [court of common pleas] ruled on [Plaintiffs’

First Motion to Reinstate Complaint]” and Appellants’ notice of removal was,

thus, premature. Davis v. Abington Mem’l Hosp., No. 2:12-cv-06491-CMR

(E.D.Pa. 2016), at 4. The District Court reasoned:

        Under 28 U.S.C. § 1446, “[t]he notice of removal of a civil
        action or proceeding shall be filed within 30 days after the
        receipt by the defendant, through service or otherwise, of a
        copy of the initial pleading setting forth the claim for relief
        upon which such action or proceeding is based.”                 As
        [Appellants] filed the notices of removal before the state
        court ruled on Plaintiffs’ motions to reinstate, there is no “civil
        action or proceeding” in state court to be removed. This is
        especially important because, were the state court to have
        ruled upon the motions, it is unclear that they would have
        been granted, and thus that the actions would be reinstated.
        ...

        Plaintiffs’ motions were filed pursuant to 42 Pa.C.S.A. § 5103,
        which allows litigants to transfer a matter to Pennsylvania
        state court where it was “filed in any United States court for
        a district embracing any part of this Commonwealth and . . .
        is dismissed by the United States court for lack of
        jurisdiction.” The statute requires litigants to file a “certified
        transcript of the final judgment of the United States court and
        the related pleadings in a court or magisterial district of this
        Commonwealth.” While Plaintiffs’ motions attached a copy of
        their original state court complaint, Plaintiffs did not attach
        their Third Amended Complaint, the operative federal court
        pleading as required by statute. Moreover, § 5103 applies
        only where the case was dismissed for lack of jurisdiction,
        and the claims that Plaintiffs seek to reinstate are those in
        their original complaint, which were not dismissed for lack of
        jurisdiction but because the [District] Court found that they
        were preempted. The [District] Court dismissed for lack of
        jurisdiction only the remaining state-law claims as alleged in


                                       -9-
J-A17017-19


        the Third Amended Complaint, which were different from
        those Plaintiffs originally asserted in their initial state court
        complaint. As a result, it is possible and even likely that the
        state court would not have granted Plaintiffs’ motions to
        reinstate, and thus that there would never be an action to
        remove. Under these circumstances, the [District] Court
        finds that removal was premature, and therefore will grant
        the motions to remand.

                                      ...

        Plaintiffs argue that [Appellants’] notices of removal
        disregarded [the District] Court’s “unambiguous order
        holding that it lacked jurisdiction over all remaining state law
        claims.” As discussed, however, the [District] Court did not
        hold that it lacked jurisdiction over the claims in the original
        state court complaint that Plaintiff sought to reinstate. If
        Plaintiffs had complied with [the District] Court’s orders by
        seeking to reinstate the state-law claims in their Third
        Amended Complaints, rather than complaints that assert
        claims [the District] Court has already held to be preempted
        by ERISA, these removal actions and the resulting litigation
        could have been avoided. As the state court has dismissed
        Plaintiffs’ motions to reinstate as moot, Plaintiffs have an
        opportunity to remedy their mistake and comply with [the
        District] Court’s orders should they choose to pursue their
        claims again in state court.

Id. at 4-6 (footnotes and emphasis omitted).

      Thus, on September 1, 2016, the District Court entered an order, which

granted Plaintiffs’ motions to remand, remanded the cases to the court of

common pleas, and ordered the clerk of courts to close the cases in the

Eastern District of Pennsylvania. Id. at 6. The District Court’s order was filed

in the court of common pleas on September 27, 2016. See Docket Entry, at

9/27/16.

      On November 17, 2016, Plaintiffs filed, at the 2009 Court of Common

Pleas Docket, their “Motion to Reinstate the Third Amended Complaint

                                     - 10 -
J-A17017-19



Pursuant to 42 Pa.C.S.A. § 5103(b)” (hereinafter “Motion to Reinstate the

Third Amended Complaint”). The motion declared: “[p]ursuant to 42 Pa.C.S.

§ 5103(b), [Plaintiffs] hereby move [the trial c]ourt to reinstate their Third

Amended Complaint related to this action that was previously filed in the

Eastern District of Pennsylvania . . . after removal of this case to federal court,

which the federal court then dismissed for lack of jurisdiction.”        Plaintiffs’

Motion to Reinstate the Third Amended Complaint, 11/17/16, at ¶ 1. Plaintiffs

attached their Third Amended Complaint, which they filed at the 2009 Federal

Court Docket, to their motion. See id. at Exhibit A.

      Appellants responded to Plaintiffs’ motion and requested that the trial

court deny the motion because: the trial court “has no jurisdiction over this

action any longer, as the docket was permanently closed in 2010 after a

federal court denied a motion to remand filed by Plaintiffs;” even if the docket

were active, Section 5103(b) does not permit the reinstatement of Plaintiffs’

claims because the claims were not dismissed, transferred, or remanded for

lack of jurisdiction; and, even if Section 5103(b) were applicable, denial would

still be necessary because Plaintiffs waited more than four years to seek

reinstatement of their claims and, thus, Plaintiffs did not “promptly” seek

relief. Appellants’ Response, 12/7/16, at 2.

      On May 15, 2017, the trial court granted Plaintiffs’ Motion to Reinstate

the Third Amended Complaint. Trial Court Order, 5/17/17, at 1. Appellants

later filed a petition, in this Court, seeking immediate appeal from the trial

court’s May 15, 2017 interlocutory order.       Appellants’ Petition for Review,

                                      - 11 -
J-A17017-19



8/14/17, at 1-20; see also 42 Pa.C.S.A. § 702(b). We granted the petition

for review on November 29, 2017 and the current appeal is now before this

Court.

      On appeal, Appellants raise two questions:

         [1.] Whether the trial court erred as a matter of law when it
         exercised jurisdiction over an action that was removed to
         federal court in 2009 and not remanded[?]

         [2.] Whether [42 Pa.C.S.A.] § 5103(b) allows [Plaintiffs] to
         “reinstate” in the court of common pleas state law claims
         when (1) the federal court chose not to exercise its
         supplemental jurisdiction under 28 U.S.C. § 1367(c) after
         dismissing with prejudice the only federal claims present in
         the action; and (2) Plaintiffs waited more than four years
         after the state law claims were dismissed by the federal court
         before taking any action to assert those claims in state
         court[?]

Appellants’ Brief at 2 (some capitalization omitted).

      First, Appellants claim that the trial court erred when it granted Plaintiffs’

Motion to Reinstate the Third Amended Complaint because the trial court did

not have subject matter jurisdiction over the action. Specifically, Appellants

claim that the trial court did not have jurisdiction over the action because,

after the action was removed to federal court in 2009, the federal court did

not remand the case back to the court of common pleas. We agree.

      “It is well-settled that the question of subject matter jurisdiction may

be raised at any time, by any party, or by the court sua sponte.” Grom v.

Burgoon, 672 A.2d 823, 824-825 (Pa. Super. 1996). The question of subject

matter jurisdiction “is purely one of law;” therefore, our standard of review



                                      - 12 -
J-A17017-19



over   this   issue   is   de   novo, and   our   scope   of review    is     plenary.

Commonwealth v. Jones, 929 A.2d 205, 211 (Pa. 2007).

       Section 1446 of the United States Judicial Code (28 U.S.C. § 1446) is

titled “procedure for removal of civil actions” and declares in relevant part:

         (a) Generally.--A defendant or defendants desiring to
         remove any civil action from a State court shall file in the
         district court of the United States for the district and division
         within which such action is pending a notice of removal
         signed pursuant to Rule 11 of the Federal Rules of Civil
         Procedure and containing a short and plain statement of the
         grounds for removal, together with a copy of all process,
         pleadings, and orders served upon such defendant or
         defendants in such action.

                                        ...

         (d) Notice to adverse parties and State court.--Promptly
         after the filing of such notice of removal of a civil action the
         defendant or defendants shall give written notice thereof to
         all adverse parties and shall file a copy of the notice with the
         clerk of such State court, which shall effect the removal and
         the State court shall proceed no further unless and until the
         case is remanded.

28 U.S.C. § 1446.

       Thus, under the plain terms of Section 1446, once a case is removed to

federal court, “the State court shall proceed no further unless and until the

case is remanded.” Id. (emphasis added). As summarized by two legal

commentators:

         The federal court's assertion of removal jurisdiction places
         the state court's jurisdiction in a state of suspension until
         such time as the federal court remands the case to state
         court. If the [federal] court finds that it does have jurisdiction
         and that the case has been properly removed, or if the federal
         court dismisses the cause of action in response to a party's

                                       - 13 -
J-A17017-19


          motions, then the removal operates to terminate the state
          court's jurisdiction. Any proceedings that occur in the state
          court between the filing of a copy of the federal removal
          petition in the state court and the reinvestment of jurisdiction
          that occurs upon the remand of the case to the state court
          are void.

David A. Furlow & Charles W. Kelly, Removal and Remand: When Does a

Federal District Court Lose Jurisdiction Over a Case Remanded to State Court?,

41 SW. L.J. 999, 999-1001 (1988); see also Crown Constr. Co. v.

Newfoundland Am. Ins. Co., 239 A.2d 452, 455 (Pa. 1968) (“[w]hen a

removal    has   been    effected   in   strict   compliance   with   the   statutory

requirements, then the state court's jurisdiction ceases and any further

proceeding in the state court is a nullity so long as the action is pending in the

federal court”); Wenrick v. Schloemann-Siemag Aktiengesellschaft, 522

A.2d 52, 54 (Pa. Super. 1987) (“[n]ormally, the filing of [a notice of removal]

imposes an automatic stay on any further proceedings in the state court and

any proceedings that are conducted in the state court are a nullity until there

has been a remand by the federal court”); Maseda v. Honda Motor Co.,

Ltd., 861 F.2d 1248, 1254-1255 (11th Cir. 1988) (“after removal, the

jurisdiction of the state court absolutely ceases and the state court has a duty

not to proceed any further in the case. Any subsequent proceedings in state

court on the case are void ab initio”) (citations and footnotes omitted).

      Remand is accomplished by the federal clerk mailing a “certified copy of

the order of remand . . . to the clerk of the State court.” 28 U.S.C. § 1447(c).

Section 1447(c) declares that, when the “certified copy of the order of



                                         - 14 -
J-A17017-19



remand” is mailed to the clerk of the State court, “[t]he State court may

thereupon proceed with such case.” Id.

      Here, Plaintiffs filed their original complaint, in 2009, in the Court of

Common Pleas of Philadelphia County. Appellants removed the case to the

District Court, where the case proceeded and Plaintiffs eventually filed a Third

Amended Complaint. The Third Amended Complaint consisted of FLSA claims

and Pennsylvania state-law claims.

      On August 7, 2012, the District Court dismissed Plaintiffs’ Third

Amended Complaint and closed the case. In relevant part, the District Court’s

August 7, 2012 order declares:

        1. Plaintiffs’ federal claims are DISMISSED with prejudice.

        2. The [District] Court declines to exercise supplemental
        jurisdiction over the remaining state law claims which are
        DISMISSED without prejudice to the reassertion of these
        claims in state court to the extent Plaintiffs can do so
        consistent with the [District] Court’s prior rulings.

        The Clerk of Court is directed to CLOSE this case.

District Court Order, 8/7/12, at 1 (emphasis, citations, and some capitalization

omitted).

      Of note, the District Court’s August 7, 2012 order did not remand the

case to the court of common pleas; correspondingly, no remand order was

entered on the court of common pleas docket. Nevertheless, following the

District Court’s August 7, 2012 order, Plaintiffs began filing motions at the




                                     - 15 -
J-A17017-19



2009 Court of Common Pleas Docket, which was an action that had been

removed to federal court and never remanded.

      The question now is whether the trial court had subject matter

jurisdiction to consider Plaintiffs’ filings at the 2009 Court of Common Pleas

Docket and to grant Plaintiffs’ Motion to Reinstate the Third Amended

Complaint. We conclude that the trial court lacked subject matter jurisdiction

over the action that was filed at the 2009 Court of Common Pleas Docket. We

must, therefore, vacate the trial court’s May 15, 2017 order.

      In Fessler v. Hannagan, 601 A.2d 462 (Pa. Cmwlth. 1991), the

Commonwealth Court of Pennsylvania had occasion to consider a case similar

to the one at bar. In Fessler, the plaintiffs sued various defendants in the

Court of Common Pleas of Luzerne County; the defendants included the United

States Department of Housing and Urban Development (“HUD”) and the action

was docketed at No. 4055-C of 1989. The defendants removed the case to

federal court and the federal district court eventually dismissed the action on

the merits. Id. at 463.

      After the district court dismissed the case, “plaintiffs filed in the Court

of Common Pleas of Luzerne County an amended complaint at the same

docket number as the removed and dismissed action (No. 4055–C of 1989).”

Id.   The amended complaint eliminated HUD as a defendant, “but raised

substantially the same issues as the original pleading.” Id.

      The defendants claimed that the court of common pleas lacked subject

matter jurisdiction over the action because the case had been removed to

                                     - 16 -
J-A17017-19



federal court and never remanded. The trial court agreed with the defendants

and dismissed the complaint. On appeal, the plaintiffs claimed that the trial

court erred in dismissing their complaint because: 1) the “dismissal of the

action in federal court [] operate[d] as an automatic remand to the state

court” and 2) “the filing of a second, separate state court suit [was] not

prohibited by removal of the first such suit into federal court.” See id. at 464.

The Commonwealth Court rejected both of the plaintiffs’ arguments and

affirmed the trial court’s order.

      First, the Commonwealth Court rejected the plaintiffs’ claim that the

“dismissal of the action in federal court somehow operate[d] as an automatic

remand to the state court.” Id. The Fessler Court emphasized that 28 U.S.C.

§ 1446(d) explicitly states that, upon removal, “‘the State court shall

proceed no further unless and until the case is remanded.’” Id. at 464

(emphasis in original), quoting 28 U.S.C. § 1446(d). Thus, “[o]rdinarily, any

further state court proceedings ‘are a nullity until there has been a remand by

the federal court.’” Fessler, 601 A.2d at 464, quoting Wenrick, 522 A.2d at

54. The Fessler Court held that “the plain and unambiguous language of the

federal removal statute” did not permit the state court to reestablish

jurisdiction after the federal court merely dismissed the action; instead, to

invest jurisdiction in the state court, an express remand by the federal court

was required. See Fessler, 601 A.2d at 464.

      The Fessler Court also rejected the plaintiffs’ second claim, where the

plaintiffs contended they filed a permissible “separate” state court suit.

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Initially, the Fessler Court agreed with the plaintiffs that, “if a separate action

[were] filed in state courts, the automatic stay of 28 U.S.C. § 1446(d) would

not necessarily prohibit further state proceedings on the second action if it

was not filed simply in an attempt to defeat federal removal jurisdiction.” Id.

at 464-465. However, the Fessler Court held, the plaintiffs did not file a

“second action” – instead, the plaintiffs erroneously filed an amended

complaint at the original docket, which had been removed to federal court and

never remanded.      As the Fessler Court explained, this was fatal to the

plaintiffs’ case:

         On removal, the federal court “acquires total, exclusive
         jurisdiction over the litigation,” and the mere filing of an
         amended complaint in state court omitting the basis for the
         federal claim does not defeat the federal court's jurisdiction.
         Crummie v. Dayton–Hudson Corp., 611 F.Supp. 692, 693
         (E.D.Mich. 1985). “The removed case is governed by the
         Federal Rules of Civil Procedure and is treated as though it
         originally had been instituted in the federal court.” Id. at
         693; see also Redfield v. Continental Casualty Corp.,
         818 F.2d 596 (7th Cir. 1987).

         Plaintiffs cannot amend in state court a pleading that is
         treated as having been originally instituted in federal court.
         Plaintiffs' amended complaint was filed in state court at the
         same docket number as the removed action which the district
         court dismissed without remand.             Because plaintiffs'
         amended complaint was not a separate action, but was an
         attempt to continue the removed action in state court by
         amendment, the court of common pleas was without
         jurisdiction to take any further action. If plaintiffs wanted to
         amend their original pleading, they were obligated to seek
         leave to amend from the district court, which had jurisdiction
         over the case by virtue of removal.

Fessler, 601 A.2d at 465.


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J-A17017-19



      Although we are “not bound by decisions of the Commonwealth Court[,]

. . . such decisions provide persuasive authority[] and we may turn to our

colleagues on the Commonwealth Court for guidance when appropriate.”

Petow v. Warehime, 996 A.2d 1083, 1088 n.1 (Pa. Super. 2010).               We

conclude that Fessler is persuasive authority for this Court, as Fessler’s

analysis and holding are consistent with the express language of Section

1446(d) and with the holdings of various other courts that have considered

the issue.

      For example, in Allstate Insurance Co. v. Superior Court, 183 Cal.

Rptr. 330 (Cal. Ct. App. 1982), the defendant removed an action to federal

court on the ground of federal diversity jurisdiction. In accordance with a

stipulation by the parties, the district court entered an order dismissing the

action without prejudice, so that the plaintiff could file a new action in state

court and name nondiverse defendants. Id. at 331.

      Instead of filing a new action in state court, the plaintiff filed an

amended complaint at the original California state court docket number. The

defendant claimed that the state court did not have jurisdiction over the action

because the federal district court did not remand the case to the state court.

The California Court of Appeals agreed with the defendant, reasoning:

        [28 U.S.C. § 1446] establishes that removal of a civil action
        from a state court to a federal court, on the ground of the
        defendant's diverse citizenship, operates as a literal
        “removal” of the action from the state court and terminates
        that court's jurisdiction to proceed in it at the time. [28
        U.S.C. § 1447] makes it clear that proceedings in the action


                                     - 19 -
J-A17017-19


        may thereupon be conducted in the federal court, which has
        exclusive jurisdiction after removal; that the federal court
        must “remand” the action to the state court of origin if federal
        jurisdiction is subsequently found wanting; and that the state
        court may resume its first-instance jurisdiction if—but only
        if—there is a “remand” of the action to it from the federal
        court.

        It is undisputed that there was no remand by the federal
        court in the present case, and that the action was dismissed
        by that court on plaintiff's motion. The dismissal was entered
        when the federal court had exclusive jurisdiction of the
        action. The fact that the dismissal was “without prejudice”
        permitted plaintiff to pursue his claims in another action, and
        this prospect was clearly portended throughout the
        proceedings in which he moved the federal court for
        dismissal. The dismissal without prejudice nevertheless
        terminated the action, and placed him in a “legal position” as
        if he had never brought it. There having been a dismissal
        without remand, there was no action in which respondent
        court could “resume” jurisdiction as plaintiff contends.
        [Accordingly, the state] court consequently erred, and
        exceeded its jurisdiction, in permitting further proceedings
        [at the original docket number] after the federal court had
        dismissed it. . . .

Allstate Ins. Co., 183 Cal.Rptr. at 333 (emphasis in original) (footnotes and

some citations and emphasis omitted); see also Miller v. Equifax, Inc., 208

P.3d 498 (Or. App. 2009) (the plaintiffs filed a complaint, in state court,

against Equifax; after Equifax removed the case to federal court, the district

court (per the parties’ stipulation) dismissed the case without prejudice – but

the court did not remand the case; after dismissal, the plaintiffs filed an

amended complaint, in state court, at the original docket number; the

amended complaint omitted Equifax as a party and, instead, named

Consolidated Credit Services, Inc. as the defendant; the trial court dismissed

the action for lack of jurisdiction and the appellate court affirmed, reasoning:

                                     - 20 -
J-A17017-19



“[a]fter the federal court's dismissal of plaintiffs' claims against Equifax,

plaintiffs presumably could have filed a new action in state court . . . Instead

of filing a new action, plaintiffs chose to raise their claims against Consolidated

in the same action that Equifax had removed. After removal, however, a state

court has no jurisdiction over the removed action. Because this action was

removed to and never remanded from the federal district court, the trial court

was correct to conclude that it lacked jurisdiction”) (citations omitted); Willis

v. Shelby County, 2009 WL 1579248 (Tenn. Ct. App. 2009) (“[v]arious

plaintiffs have attempted to argue that dismissal of their claims in federal court

somehow automatically remands the case to the state court. State and federal

courts have consistently held, however, that a state court has no jurisdiction

to resume proceedings where a federal court, in its discretion, dismisses the

case rather than remanding it”); Allstate Ins. Co. v. Preston, 842 F.Supp.

1441, 1443 (S.D.Fla. 1992) (“Section 1446(d) provides that, after an action

has been removed to federal court, the state court shall proceed no further

unless and until the case is remanded. Because the case was never remanded

. . . the state court is without jurisdiction to proceed in the action”) (citation

and footnote omitted).

      Within their brief to this Court, Plaintiffs raise a number of arguments

wherein they insist that the trial court possessed jurisdiction to enter the May

15, 2017 order.    Specifically, Plaintiffs claim that the trial court possessed

subject matter jurisdiction over the action because:          1) when Plaintiffs

eliminated their ERISA claims in the Third Amended Complaint, “the order

                                      - 21 -
J-A17017-19



finding [ERISA] preemption became moot, the federal court no longer had

subject matter jurisdiction over the state law claims, and by operation of [28

U.S.C. § 1447(c), the case] had to be remanded to state court;” 2) the District

Court remanded the case to the court of common pleas sub silentio; 3)

Appellants acquiesced to Plaintiffs’ actions; and, 4) Plaintiffs were permitted

to transfer their action to state court by utilizing 42 Pa.C.S.A. § 5103(b). See

Plaintiffs’ Brief at 11-26. Plaintiffs’ contentions fail.

      We first address Plaintiffs’ claim that the trial court had jurisdiction over

their action because, when they eliminated their ERISA claims in the Third

Amended Complaint, “the order finding [ERISA] preemption became moot,

the federal court no longer had subject matter jurisdiction over the state law

claims, and by operation of [28 U.S.C. § 1447(c), the case] had to be

remanded to state court.” Plaintiffs’ Brief at 12. In relevant part, 28 U.S.C.

§ 1447(c) provides: “[i]f at any time before final judgment it appears that

the district court lacks subject matter jurisdiction, the case shall be

remanded.” 28 U.S.C. § 1447(c).

      It is true that Plaintiffs’ original complaint consisted of ERISA claims and

that Appellants originally removed the case to federal court because of the

ERISA claims and because ERISA completely preempted the state-law claims.

See Davis, 765 F.3d at 239.          It is also true that Plaintiffs filed a Third

Amended Complaint in federal court, which abandoned the ERISA claims and,

instead, raised FLSA and Pennsylvania state-law claims.




                                       - 22 -
J-A17017-19



      Nevertheless, for our purposes, it is irrelevant that Plaintiffs abandoned

their ERISA claims in the Third Amended Complaint that they filed in the

District Court. Certainly, Plaintiffs’ Third Amended Complaint consisted of a

federal claim and supplemental Pennsylvania state-law claims. Thus, even

though Plaintiffs abandoned their ERISA claims in the Third Amended

Complaint, the District Court still possessed jurisdiction over the case:     it

possessed original jurisdiction over the federal claim and supplemental

jurisdiction over the state-law claims pleaded in the Third Amended

Complaint. Further, after the District Court dismissed Plaintiffs’ FLSA claims

with prejudice, the District Court exercised its discretion by “declin[ing] to

exercise supplemental jurisdiction over the remaining state-law

claims which are dismissed without prejudice to the reassertion of these

claims in state court.” District Court Order, 8/7/12, at 1 (emphasis, citations,

and some capitalization omitted) (emphasis added).

      Given this posture, Plaintiffs are incorrect to argue that 28 U.S.C.

§ 1447(c) required the District Court to remand the action to the court of

common pleas or that the refusal to exercise supplemental jurisdiction

somehow resurrected the jurisdiction of the trial court in the absence of an

express remand order. To be sure, as the United States Supreme Court has

held: “[w]hen a district court remands claims to a state court after declining

to exercise supplemental jurisdiction, the remand order is not based on a lack

of subject-matter jurisdiction for purposes of §§ 1447(c) and (d).” Carlsbad

Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 641 (2009). Thus, since the

                                     - 23 -
J-A17017-19



District Court exercised its discretion and “declin[ed] to exercise supplemental

jurisdiction over the remaining state-law claims,” 28 U.S.C. § 1447(c) did not

apply and did not require that the District Court remand the case to the court

of common pleas. See id.

      Next, Plaintiffs contend that the trial court possessed jurisdiction over

the action because the District Court’s August 7, 2012 dismissal order

remanded the case to the court of common pleas sub silentio. Plaintiffs’ Brief

at 16-18. This claim is meritless. Put simply, no remand order appears on

the court of common pleas docket from the District Court’s August 7, 2012

order and there is no evidence that, in response to that order, the federal clerk

of courts mailed a “certified copy of the order of remand . . . to the clerk of

the State court.” 28 U.S.C. § 1447(c). Therefore, the District Court’s August

7, 2012 dismissal order simply did not remand the case to the court of

common pleas.

      Third, Plaintiffs argue that Appellants acquiesced to Plaintiffs’ actions in

the court of common pleas, when, following the District Court’s August 7, 2012

dismissal order, Appellants filed a notice in the trial court declaring:

“[Appellants] do not oppose the relief [P]laintiffs request in their motions –

reinstatement of the complaints in [the court of common pleas].” Appellants’

Notice of No Opposition, 11/7/12, at 1. Plaintiffs claim that, as a result of this

acquiescence, Appellants “should be estopped from now contending that the

trial court lacked jurisdiction.” Plaintiffs’ Brief at 19.




                                       - 24 -
J-A17017-19



      Plaintiffs’ claim fails. It is irrelevant that Appellants arguably consented

to Plaintiffs’ filing on the 2009 Court of Common Pleas Docket. The issue at

hand implicates the trial court’s subject matter jurisdiction – and subject

matter jurisdiction cannot be “acquired by consent or waiver of the parties.”

Commonwealth v. McNeil, 808 A.2d 950, 954 (Pa. Super. 2002).

      Finally, Plaintiffs contend that 42 Pa.C.S.A. § 5103(b) permitted their

actions in this case. Section 5103 is entitled “[t]ransfer of erroneously filed

matters.” In relevant part, Section 5103 declares:

        (a) General rule.--If an appeal or other matter is taken to
        or brought in a court or magisterial district of this
        Commonwealth which does not have jurisdiction of the
        appeal or other matter, the court or magisterial district judge
        shall not quash such appeal or dismiss the matter, but shall
        transfer the record thereof to the proper tribunal of this
        Commonwealth, where the appeal or other matter shall be
        treated as if originally filed in the transferee tribunal on the
        date when the appeal or other matter was first filed in a court
        or magisterial district of this Commonwealth. A matter which
        is within the exclusive jurisdiction of a court or magisterial
        district judge of this Commonwealth but which is commenced
        in any other tribunal of this Commonwealth shall be
        transferred by the other tribunal to the proper court or
        magisterial district of this Commonwealth where it shall be
        treated as if originally filed in the transferee court or
        magisterial district of this Commonwealth on the date when
        first filed in the other tribunal.

        (b) Federal cases.--

            (1) Subsection (a) shall also apply to any matter
            transferred or remanded by any United States court for a
            district embracing any part of this Commonwealth. In
            order to preserve a claim under Chapter 55 (relating to
            limitation of time), a litigant who timely commences an
            action or proceeding in any United States court for a
            district embracing any part of this Commonwealth is not

                                     - 25 -
J-A17017-19


            required to commence a protective action in a court or
            before a magisterial district judge of this Commonwealth.
            Where a matter is filed in any United States court for a
            district embracing any part of this Commonwealth and the
            matter is dismissed by the United States court for lack of
            jurisdiction, any litigant in the matter filed may transfer
            the matter to a court or magisterial district of this
            Commonwealth by complying with the transfer provisions
            set forth in paragraph (2).

            (2) Except as otherwise prescribed by general rules, or by
            order of the United States court, such transfer may be
            effected by filing a certified transcript of the final
            judgment of the United States court and the related
            pleadings in a court or magisterial district of this
            Commonwealth. The pleadings shall have the same effect
            as under the practice in the United States court, but the
            transferee court or magisterial district judge may require
            that they be amended to conform to the practice in this
            Commonwealth. Section 5535(a)(2)(i) (relating to
            termination of prior matter) shall not be applicable to a
            matter transferred under this subsection.

                                     ...

42 Pa.C.S.A. § 5103.

      As the United States District Court for the Eastern District of

Pennsylvania has explained:

        [Section 5103] provides that a case which has been
        erroneously filed in federal court, but should have been
        brought in state court, can be transferred[, by the litigant,]
        to state court and treated as if it was first filed there. 42
        Pa.C.S.A. § 5103(b)(1). The policy behind this section is that
        a plaintiff who files a timely action in Federal District Court
        should not lose his opportunity to litigate that case on the
        merits simply because he is in error regarding federal
        jurisdiction.

In re Grocott, 507 B.R. 816, 825 (E.D.Pa. 2014) (quotations and some

citations omitted).


                                    - 26 -
J-A17017-19



       Section 5103 thus addresses the procedure by which a litigant may

transfer, to state court, a matter that was erroneously filed in federal court.

The section simply does not speak to the situation currently before this Court,

where a plaintiff seeks to revive a state-court docket that was removed to

federal court and never remanded. Stated another way, Section 5103 has no

applicability to the remand procedures in federal court, which are governed

by federal law, and the section obviously cannot provide the court of common

pleas with subject matter jurisdiction to consider filings on a docket of a state-

court action that had been removed to federal court and never remanded.

Thus, Plaintiffs’ claim fails.2

       Consistent with the above, we conclude that, since the District Court’s

August 7, 2012 order dismissed Plaintiffs’ Third Amended Complaint and did

not remand the case to the court of common pleas, the court of common pleas

did not have subject matter jurisdiction to consider anything that was filed at

the original, 2009 Court of Common Pleas Docket, as that action was removed

to federal court and never remanded. Therefore, we must vacate the trial


____________________________________________


2 The trial court claims that it possessed jurisdiction over the action because
Plaintiffs’ original “state law claims were neither preempted [by ERISA] nor
dismissed with prejudice.” Trial Court Opinion, 7/16/18, at 9. We recognize
that the District Court dismissed Plaintiffs’ state law claims without prejudice
and our holding today is not grounded in concepts of ERISA preemption.
Instead, we merely hold that the trial court did not have subject matter
jurisdiction over the current action because, after the action was removed to
federal court in 2009, the District Court dismissed Plaintiffs’ Third Amended
Complaint and did not remand the case back to the court of common pleas.


                                          - 27 -
J-A17017-19



court’s May 15, 2017 order, which granted Plaintiffs’ Motion to Reinstate the

Third Amended Complaint.

      Orders vacated. Cases remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/20




                                   - 28 -
