J-S75017-16
2016 PA Super 223
FEDERAL DEPOSIT INSURANCE IN THE SUPERIOR COURT OF
CORPORATION, AS RECEIVER FOR FIRST PENNSYLVANIA
CORNERSTONE BANK
v.
EDWARD FILBY AND TENANT/OCCUPANT
APPEAL OF: EDWARD L. FILBY
No. 700 EDA 2016
Appeal from the Order Entered February 10, 2016
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2014-10792-RC
BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.
OPINION BY MOULTON, J.: FILED OCTOBER 13, 2016
In this action for ejectment brought by First Cornerstone Bank,
Appellant Edward L. Filby appeals from two orders entered on February 10,
2016, in the Court of Common Pleas of Chester County. In light of the filing
of a notice of removal during the pendency of the appeal by substituted
Appellee Federal Deposit Insurance Corporation (“FDIC”), we stay this
matter pending final disposition in, or remand from, federal court.
On February 10, 2016, the trial court entered two orders – one
granted summary judgment in favor of First Cornerstone Bank and the other
struck Filby’s counterclaims. Filby filed a notice of appeal on March 9, 2016,
claiming that the trial court erred as a matter of law by concluding that
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Filby’s counterclaims constituted an improper collateral attack on the earlier
sheriff’s sale of the property in question. During the pendency of this
appeal, First Cornerstone Bank became insolvent. The Secretary of the
Pennsylvania Department of Banking and Securities and the FDIC agreed
that the FDIC would act as a receiver for First Cornerstone Bank. On June
13, 2016, First Cornerstone Bank petitioned this Court to substitute the FDIC
as the Appellee, in its capacity as Receiver for First Cornerstone Bank. On
August 12, 2016, this Court granted the substitution in a per curiam order.
On August 16, 2016, the FDIC filed a notice of removal with the United
States District Court for the Eastern District of Pennsylvania. On September
6, 2016, the FDIC filed a copy of the notice with this Court and served the
notice on Filby.1 The FDIC asserts that pursuant to 12 U.S.C. §
1819(b)(2)(B) it has a statutory right to remove the pending appeal to
federal court.2
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1
This Court has not received a brief from the FDIC. Filby filed his brief on
July 25, 2016. Under Pennsylvania Rule of Appellate Procedure 2815(a)(1),
the FDIC’s brief would have been due August 25, 2016. The FDIC, because
it filed its Notice of Removal to federal court before that date, presumably
believed that it did not need to file a brief with this Court.
2
The statute provides in relevant part:
Except as provided in subparagraph (D), the [FDIC] may,
without bond or security, remove any action, suit, or
proceeding from a State court to the appropriate United
States district court before the end of the 90-day period
beginning on the date the action, suit, or proceeding is
(Footnote Continued Next Page)
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Ordinarily, removal occurs while the case is pending in the trial court,
see, e.g. Wenrick v. Schloemann-Siemag Aktiengesellschaft, 522 A.2d
52 (Pa.Super. 1987), aff’d on other grounds, 564 A.2d 1244 (Pa. 1989), and
we have found no Pennsylvania authority addressing removal by the FDIC of
a case on appeal. At least two United States Courts of Appeal, however,
have allowed the FDIC, acting as a receiver, to remove state appellate
actions to federal court. See, e.g. Fed. Deposit Ins. Corp. v. Keating, 12
F.3d 314 (1st Cir. 1993) (allowing FDIC to remove then pending state appeal
to federal district court); Matter of Meyerland Co., 960 F.2d 512 (5th Cir.
1992) (en banc) (confirming FDIC’s ability to remove any action in a state
court to appropriate federal district court based on plain language of 12
U.S.C. § 1819). And the Court of Appeals for the Third Circuit permitted the
Resolution Trust Corporation, with statutory removal authority similar to that
of the FDIC, to remove to federal court a case then pending in this Court.
Resolution Trust Corp. v. Nernberg, 3 F.3d 62 (3d. Cir. 1993).
To comply with the federal removal statute, a party seeking removal
must: (1) file a notice of removal with the United States district court; (2)
file a copy of the notice of removal with the clerk of the State court; and (3)
give written notice to all adverse parties. 28 U.S.C. § 1446(a), (d). When
_______________________
(Footnote Continued)
filed against the [FDIC] or the [FDIC] is substituted as a
party.
12 U.S.C. § 1819(b)(2)(B) (emphasis added).
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the moving party meets these requirements, removal to the federal court is
complete and “the State Court shall proceed no further unless and until the
case is remanded.” Id. § 1446(d). The FDIC complied with the statute by
filing its notice of removal with the district court, filing a copy with the
Prothonotary of the Superior Court, and serving a copy upon Filby. This
Court is therefore without jurisdiction to proceed with the appeal.
In light of the command contained in section 1446(d), we are
compelled to stay the appeal pending final disposition in federal court. This
Court has found that the filing of a petition for removal “has the effect of
statutory stay of further state proceedings.” Wenrick, 522 A.2d at 54. If,
after removal, the federal court finds that the removal was improper, federal
law provides that it shall remand the matter to the state court. See 28
U.S.C. § 1447(c) (“If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded . .
. . The State Court may thereupon proceed with such case.”). If the district
court or the United States Court of Appeals for the Third Circuit were to
make such a ruling, then this Court would regain jurisdiction over the
appeal.3 We therefore stay the appeal pending final disposition in, or
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3
What the federal district court should do with a case removed from a state
appellate court is a question not before us, though it has been addressed
elsewhere. See Keating, 12 F.3d at 317 (“Where . . . post-judgment relief
is no longer available, the district court shall adopt the decision of the state
court as its own, prepare the record as required for appeal, and forward the
case to the federal appeals court for review”).
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remand from, federal court and direct the FDIC to notify the Prothonotary of
the Superior Court as to any such disposition.
Appeal stayed. Panel jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2016
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