The opinion of the court was delivered by: ALFRED J. LECHNER, JR.
Presently before the court is the question as to whether this matter should be remanded to the Superior Court pursuant to 28 U.S.C. § 1447(c).
For the reasons set forth below, this matter is remanded to the Superior Court, pursuant to 28 U.S.C. § 1447(c).
On 3 May 1994, Plaintiff filed a complaint (the "Complaint") in the Superior Court bearing docket number FM-19-443-94. The Complaint sought a dissolution of the parties' marriage, a support order, equitable distribution of personal property, counsel fees and costs. Complaint at 2.
On or about 21 September 1994, Plaintiff filed a notice of motion in the Superior Court, seeking to expedite the case and to schedule an early settlement panel in the matter. Notice of Removal, Exhibit E. On or about 13 October 1994, Defendant filed a cross-notice of motion seeking to dismiss the Complaint. Notice of Removal, P 3. Thereafter, as Defendant states in her Notice of Removal, on 16 November 1994, Plaintiff filed an amended notice of motion (the "16 November Motion") seeking, among other relief, "the sequestration of Plaintiff's ERISA pension benefits if the Plaintiff died during the pendency of the [divorce] action." Notice of Removal, P 3. Plaintiff's pension benefits were allegedly provided by a plan that falls within the coverage of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq. Notice of Removal, P 3.
On 15 December 1994, Judge Lorraine C. Parker ("Judge Parker") of the Superior Court entered an order (the "15 December Order") denying Plaintiff's request to sequester the ERISA survivorship benefits in Plaintiff's pension. Notice of Removal, P 4, Exhibit D.
On 8 January 1995, Plaintiff died. Id., P 5. Defendant, the named beneficiary of Plaintiff's pension benefits, began to receive Plaintiff's pension death benefits from CoreStates Bank, the trustee of Plaintiff's pension benefits. Id., P 7.
On or about 3 February 1995, Plaintiff filed another notice of motion (the "3 February Motion") in the Superior Court.
Notice of Removal, P 8. The 3 February Motion sought to amend the Complaint and to restrain the Defendant from "eroding or dissipating the marital assets, including, but not limited to, the [ERISA] pension benefits," pending a determination as to the parties' respective rights to those benefits. Notice of Removal, Exhibit E.
On or about 21 February 1995, Defendant filed a notice of cross-motion (the "Cross-Motion"), seeking the denial of Plaintiff's 3 February Motion to restrain Defendant from dissipating the marital assets, including the ERISA benefits. Id., P 9. The Cross-Motion also sought to dismiss the divorce action on the grounds that it had abated upon Plaintiff's death. Id.
Judge Parker entered an order (the "14 March Order") providing that the Superior Court would retain jurisdiction for the purposes of determining whether Plaintiff's ERISA death benefits were, in fact, part of the marital estate "and whether the estate has standing to seek a constructive trust for any portion of the marital estate." Id., P 10.
Defendant contends in the Notice of Removal: