                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-6-1995

Wujick v Dale & Dale
Precedential or Non-Precedential:

Docket 93-1853




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Recommended Citation
"Wujick v Dale & Dale" (1995). 1995 Decisions. Paper 5.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/5


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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                           No. 93-1853



               PHYLLIS WUJICK and JOSEPH MATISKA,

                                                       Appellees

                                v.

   DALE & DALE, INC., DALE & DALE DESIGN & DEVELOPMENT, INC.,
      t/d/b/a DALE & DALE HOMES, ATLANTIC FINANCIAL a/k/a
ATLANTIC FINANCIAL FEDERAL, ESTATE OF FINANCIAL FEDERAL R.T.C.,


         Defendants,

                    RESOLUTION TRUST CORP.,
                in its capacity as Receiver for
                  Atlantic Financial Federal,

                                                       Appellant


                         Appeal from the
                  United States District Court
            for the Eastern District of Pennsylvania
                    (D.C. Civil No. 93-1939).




                       Argued March 8, 1994


       BEFORE: MANSMANN, LEWIS and SEITZ, Circuit Judges.

                    (Filed: October 13, 1994)


William R. Thompson, Esquire
Robert C. Seiger, Jr., Esquire
Richard M. Beck, Esquire (Argued)
Klehr, Harrison, Harvey, Branzburg & Ellrs
1401 Walnut Street
Philadelphia, Pennsylvania 19102
    ATTORNEYS FOR APPELLANT
David P. Tomaszewski, Esquire (Argued)
Kimberly D. Borland, Esquire
Borland and Borland
1100 PNC Bank Building
Wilkes-Barre, Pennsylvania 18701
    ATTORNEY FOR APPELLEES

                        ____________________

                        OPINION OF THE COURT


SEITZ, Circuit Judge.



      One of the defendants, Resolution Trust Corporation, in

its capacity as Receiver for Atlantic Financial Federal, appeals

an order of the district court remanding this action to the Court

of Common Pleas of Luzerne County, Pennsylvania.    The issues

before us are whether the district court had subject matter

jurisdiction under 12 U.S.C. § 1441a(l) (Supp. V 1993), which
grants both jurisdiction to the federal courts and removal power

to RTC.    This Court has jurisdiction under 12 U.S.C. § 1441a(l)-

(3)(C) (Supp. V 1993), which empowers RTC to "appeal any order of

remand entered by a United States district court."
                              I. FACTS

          On January 11, 1990, the Office of Thrift Supervision,

Department of the Treasury of the United States, appointed the

Resolution Trust Corporation (RTC) as Receiver for the defendant,

Atlantic Financial Federal ("Old Atlantic"), a savings and loan

association.    After accepting the appointment, RTC created a new

federal savings association, Atlantic Financial Savings, F.A.

("New Atlantic"), pursuant to 12 U.S.C. § 1821(d)(2)(A) (Supp. V
1993), to assume such assets of the failed institution as RTC-

Receiver might deem appropriate.   The Office of Thrift

Supervision then appointed RTC as Conservator of New Atlantic.

RTC-Receiver of Old Atlantic and New Atlantic executed a Purchase

and Assumption Agreement, whereby New Atlantic purchased

substantially all of the assets of Old Atlantic.   Unsecured

obligations to general creditors, however, remained with Old

Atlantic.

       Sometime prior to the takeover of Old Atlantic by

Resolution Trust, the plaintiffs in this action had contracted

with defendant Dale and Dale ("Dale & Dale") to build a home for

them in Pennsylvania.   Old Atlantic had financed the

construction.   Plaintiffs became dissatisfied with the

construction and Old Atlantic's handling of the loan proceeds.

Thereafter, the plaintiffs commenced this action in the Luzerne

County Court of Common Pleas against Dale & Dale and, inter alia,
RTC.   They did so by filing a praecipe for a writ of Summons

("Writ") with that court on April 12, 1990.

       On April 16, 1990, the Luzerne County sheriff served the

Writ at Atlantic Financial offices in Wilkes-Barre, Pennsylvania.

The Writ named RTC as a defendant.1   On that date the Wilkes-

Barre offices were owned and operated by RTC as Conservator for


1
 . Plaintiffs-appellees designated this defendant as "Atlantic
Financial, a/k/a Atlantic Financial Federal; Estate of Financial
Federal R.T.C." RTC-Receiver substituted itself as a defendant
in its later notice of removal.
New Atlantic, not RTC as Receiver for Old Atlantic.     The Writ was

served without a complaint or any other indication of the

subject-matter of the action.    It merely recited that "the

plaintiff(s) have commenced an action in law against you."        The

procedure was consistent with Pennsylvania practice.2

       Plaintiffs contend that on April 16, 1990, four days after

they commenced the action in the Luzerne County court by filing

the praecipe, they filed the statutorily required administrative

claim with the RTC.    They argue that RTC "ignored" the

administrative claim.    There is no documentary evidence of such a

claim in the record.    However, during oral argument, RTC's

counsel stated that although it had no record of the claim, it

conceded that the administrative claim was "constructively

denied" because of RTC's inaction.    Without understanding the

logic of RTC's concession, we shall treat it as a judicial

admission that plaintiffs filed such a claim.    However, RTC did

not concede that any such claim for administrative relief was

timely filed.



2
.   The Pennsylvania rule provides:
       Rule 1007.   Commencement of Action
               An action may be commenced by filing with
          the prothonotary
               (1) a precipe for a writ of summons,

                (2) a complaint, or

                 . . . .
PA. STAT. ANN. tit. 42, § 1007 (1987).
       No further pertinent action appears to have taken place

until January 19, 1993, when the plaintiffs filed a complaint in

the Luzerne County action.   On March 23, 1993, it was served on

RTC-Receiver in Norristown, Pennsylvania.   RTC then removed the

case to the United States District Court for the Eastern District

of Pennsylvania on April 12, 1993.   Based on 28 U.S.C. § 1447(c)

(Supp. V 1993),3 plaintiffs made a timely motion for remand to

the state court which was granted.   RTC now appeals that order

which has been stayed.


                 II. SUBJECT MATTER JURISDICTION

       The Financial Institutions Reform, Recovery, and

Enforcement Act of 1989 ("FIRREA") confers original subject

matter jurisdiction on United States district courts to hear

cases involving RTC. 12 U.S.C. § 1441a(l)(1).4   Section

3
 . As the Fifth Circuit has pointed out: "FIRREA imposes no time
limit on motions to remand. In the absence of specific contrary
provisions, we look to the general removal statute, 28 U.S.C.
§ 1447(c) . . . ." Resolution Trust Corp. v. Sonny's Old Land
Corp., 937 F.2d 128, 131 (5th Cir. 1991).
4
.   FIRREA provides:
       (l) Power to Remove; jurisdiction
          (1) In general
           Notwithstanding any other provisions of law,
       any civil action, suit, or proceeding to which the
       Corporation is a party shall be deemed to arise
       under the laws of the United States, and the
       district courts shall have original jurisdiction
       over such action, suit, or proceeding.


12 U.S.C. § 1441a(l)(1) (Supp. V 1993).
1441a(l)(3) of the Act permits RTC to remove any suits, to which
it is a party, to the district court within certain time frames.5

In the present case, the district court concluded that RTC had

not timely removed the state action.   RTC argues that the state

action was timely removed because 1) the April 16, 1990 service

was improper and 2) a Writ is not a document which initiates the

thirty-day removal provision.

       Compliance with the procedures for removal, e.g.

timeliness of removal, are procedural issues to be distinguished

from subject matter jurisdiction in the district court. See

Medlin v. Boeing Vertol Co., 620 F.2d 957, 960 (3d Cir. 1980);

see also Spring Garden Assoc., L.P. v. Resolution Trust Corp., 26

F.3d 412, 415 (3d Cir. 1994); In re Digicon Marine, Inc., 966


5
.   The section reads:
       (l) Power to Remove; jurisdiction           (3)
       Removal and remand

                 (A) In general
                 . . . .

                 The removal of any such suit or
          proceeding shall be instituted

                    (i)   not later than 90 days after the
               date the Corporation is substituted as a
               party, or
                    (ii) not later than 30 days after
               service on the Corporation, if the
               Corporation is named as a party in any
               capacity and if such suit is filed after
               August 9, 1989.

12 U.S.C. § 1441a(l)(3) (Supp. V 1993).
F.2d 158, 160 (5th Cir 1992); Nolan v. Boeing Co., 919 F.2d 1058,
1063 n.6 (5th Cir. 1990) ("The time limitation for removal is not

jurisdictional; it is merely `modal and formal and may be

waived.'").

      This Court has stated, "[E]very federal appellate court

has a special obligation to satisfy itself not only of its own

jurisdiction, but also that of the lower courts in a cause under

review." Spring Garden, 26 F.3d at 415 (quoting Employers Ins. of

Wausau v. Crown Cork & Seal Co., 905 F.2d 42 (3d Cir. 1990)).

Therefore, we shall put aside addressing the procedural problems

presented by the parties and address directly the subject matter

jurisdiction of the district court with respect to RTC.     This

Court exercises plenary review in determining whether the lower

courts had subject matter jurisdiction. National Union Fire Ins.

Co. v. City Savings, F.S.B., 28 F.3d 376, 383 (3d Cir. 1994).


Exhaustion of Administrative Remedies

      Since our Court has an independent obligation to determine

the subject matter jurisdiction of the district court, we proceed

to that task.   Although the district court did not address the

issue of its subject matter jurisdiction, we conclude that the

ends of judicial economy dictate that we resolve this legal issue

because the facts relevant to its disposition are not in dispute.

      Plaintiffs commenced their suit in state court by filing a

praecipe for a writ of summons on April 12, 1990.   However, they
did not file their administrative claim with RTC until April 16,

1990, some four days after the filing of this suit in state

court.    The critical question is whether the state action is

jurisdictionally infirm under FIRREA because it was filed by the

plaintiffs against RTC, etc., prior to exhaustion of their

administrative remedies.    We turn now to the pertinent provisions

of FIRREA.

         FIRREA has created a comprehensive administrative

procedure for adjudicating claims against a failed depository

institution.    RTC as Receiver initiates the administrative

process by notifying the failed institution's creditors to

present their claims to RTC Receiver. 12 U.S.C.

§ 1821(d)(3)(B)(i) (Supp. V 1993).    Once a creditor timely

presents its claim, the RTC-Receiver has 180 days to consider the

claim and determine whether it will be allowed or disallowed, and

to notify the claimant of its disposition. 12 U.S.C.

§ 1821(d)(5)(A)(i) (Supp. V 1993).

         Section 1821(d)(6)(A) provides for judicial review only

for suits brought within sixty days after the claim has been

disallowed by the RTC-Receiver or the 180-day statutory period

has expired without action on the claim by the Receiver.       The

statute provides:
       (D) Limitation on judicial review
          Except as otherwise provided in this subsection,
       no       court shall have jurisdiction over
             (i) any claim or action for payment from, or
           any action seeking a determination of rights
           with respect to, the assets of any depository
           institution for which the Corporation has been
          appointed receiver, including assets which the
          Corporation may acquire from itself as such
          receiver . . . .


12 U.S.C. § 1821(d)(13)(D) (Supp. V 1993).6    This Court has very

recently stated:
       [W]e have characterized the jurisdictional restric-
       tion in § 1821(d)(13)(D) as a statutory exhaustion
       requirement: in order to obtain jurisdiction to
       bring a claim in federal court, one must exhaust
       administrative remedies by submitting the claim to
       the receiver in accordance with the administrative
       scheme for adjudicating claims detailed in
       § 1821(d).


National Union Fire Ins. Co., 28 F.3d at 383 (citing Rosa v.

Resolution Trust Corp., 938 F.2d 383, 391 (3d Cir.), cert.

denied, 112 S. Ct. 582 (1991)) (footnote omitted).    Therefore, a

court would lack subject matter jurisdiction unless the

administrative procedures set out in FIRREA were exhausted. See

id.; Althouse v. Resolution Trust Corp., 969 F.2d 1544, 1545-46

(3d Cir. 1992); Praxis Properties, Inc. v. Colonial Sav. Bank,

S.L.A., 947 F.2d 49, 63 (3d Cir. 1991); FDIC v. Shain, Schaffer &
Rafanello, 944 F.2d 129, 132 (3d Cir. 1991).

       At the time plaintiffs filed the praecipe with the Luzerne

County, Pennsylvania court seeking a Writ, no court had subject

matter jurisdiction over the suit because plaintiffs had failed

to exhaust the administrative remedies mandated by section

1821(d)(13)(D) of FIRREA.   In their later letter brief to this


6
 . The provisions of 12 U.S.C. § 1821 are made applicable to RTC
by 12 U.S.C. § 1441a(b)(4)(A).
Court, as well as in the briefs originally filed in this Court,

plaintiffs argue a "no-harm, no-foul" rule.     They contend that

"the end result would be the same whether the Plaintiff waited to

file the Writ of Summons after the one hundred and eighty (180)

day period." Letter Brief of Appellee at 3, Wujick v. Dale &
Dale, Inc., et. al., No. 93-1939 (Feb. 25, 1994).     Plaintiffs'

argument is incompatible with controlling law.

      As this Court has stated, "Congress expressly withdrew

jurisdiction from all courts over any claim to a failed bank's

assets made outside the procedures set forth in section 1821."

Shain, Schaffer & Rafanello, 944 F.2d at 132.    In addition, the

United States Supreme Court, in interpreting the exhaustion

provision of the Federal Tort Claims Act, firmly rejected the "no

harm, no foul" reasoning and held that where Congress has imposed

an administrative exhaustion requirement by statute, the

exhaustion of those procedures is mandatory. See McNeil v. United

States, 113 S. Ct. 1980 (1993).

      Finally, plaintiffs say that RTC never responded to their

administrative claim once it was filed on April 16, 1990.     Under

the statutory scheme, however, that argument is irrelevant

because their administrative claim was initiated after their

state action was commenced in 1990.   Since plaintiffs did not

timely exhaust their administrative claim, the district court

lacked subject matter jurisdiction of the action.     Since the

state court also lacked subject matter jurisdiction for the same
reason, a remand by the district court would be a vacuous act.

We will therefore direct the district court to dismiss the claims

against RTC.


                         III.    OTHER CLAIMS

      Plaintiffs' state court complaint named certain other

defendants, e.g., Dale & Dale.     On the present record, we are not

in a position to dispose of the claims against the other

defendants.    Consequently, we will, therefore, remand the case as

to such claims to afford those parties an opportunity to present

their positions to the district court for appropriate

disposition.


                           IV.   CONCLUSION

      The order of the district court remanding this action

against RTC to the state court will be reversed with a direction

to dismiss the claim against it.

      So much of the order of the district court as remands the

claims against the defendants other than RTC will be vacated and

the claims remanded to the district court for appropriate

disposition.
