Appeal from the United States District Court For the Eastern District of Pennsylvania (D.C. Civil Action No. 01-cv-05387) District Judge: J. Curtis Joyner
Before: Roth, Smith and CUDAHY,*fn1 Circuit Judges.
The opinion of the court was delivered by: Smith, Circuit Judge
Appellant in this case is a City of Philadelphia police officer who seeks to have this Court reverse an Order of the District Court for the Eastern District of Pennsylvania remanding this case to the state court in which the complaint was originally filed. The appellant, Police Officer Tonkinson, is a third-party defendant brought into this action through a "Joinder Complaint" filed in state court by one of the original defendants below, John Palko. Because the District Court interpreted the removal statutes, 28 U.S.C. S 1441, et seq., to prohibit third-party defendants like Police Officer Tonkinson from removing cases to federal court, the District Court concluded that the removal"was improper under S 1441," and remanded the case to state court. Because we lack jurisdiction to hear an appeal of a remand order entered "on the basis of any defect," 28 U.S.C. S 1447(c) (Supp. 2002), we will dismiss the appeal.
The original plaintiff in this case, Deborah Cook, commenced this action on September 20, 2000, in the Court of Common Pleas of Philadelphia County, Pennsylvania. Ms. Cook alleges that John Palko, the manager of the apartment building in which she resided, subjected her to various forms of harassment in September of 1999, and that Gerald Wikler, the owner of the building, was negligent in his supervision of Palko. In response to Ms. Cook's complaint against him, Mr. Palko counter-claimed against Ms. Cook and joined Police Officer Tonkinson, the appellant in this matter, as a third-party defendant to his counter-claim.
According to appellee Palko's state "joinder complaint,"*fn2 around 7:00 P.M. on the evening of September 28, 1999, Palko answered a knock on his apartment door to find several police officers and Ms. Cook standing in the hallway. Ms. Cook had evidently called the police to complain about loud music she alleged was coming from
Mr. Palko's apartment, which was located below hers. After investigating the complaint and interviewing Palko, the police departed shortly thereafter without taking any action. Within hours, however, Police Officer Tonkinson appeared and pounded on Palko's apartment door. Palko alleges that, without so much as a single question, Police Officer Tonkinson barged into his apartment, then seized and assaulted him. Palko alleges that Police Officer Tonkinson conspired with Cook to swear out a "bogus" criminal complaint against Palko and have him arrested. These allegations form the basis of Palko's counter-claim against Cook and his joinder of Police Officer Tonkinson, which included counts of assault and battery, false arrest and imprisonment, malicious prosecution and abuse of process, and one federal civil rights count pursuant to 42 U.S.C. S 1983.
On October 24, 2001, with Ms. Cook's consent and in response to the S 1983 claim, Police Officer Tonkinson, a third-party defendant, removed the case to the District Court. He alleged that the federal courts properly had subject matter jurisdiction over the action pursuant to 28 U.S.C. SS 1331 and 1367. Palko responded five days later by filing a motion to remand, asserting that a joinder defendant's removal of a case is improper under the removal statutes.
Before the District Court, Police Officer Tonkinson asserted that removal was proper and authorized by 28 U.S.C. S 1441. Furthermore, Police Officer Tonkinson asserted that Palko waived his right to remand, notwithstanding the fact that Palko had already filed a motion for remand, by later seeking a Rule 55 default against Ms. Cook on his cross-claim.*fn3 The District Court did not agree. Concluding that removal "by third-party defendant Tonkinson was improper under S 1441," the District Court remanded the case to the Court of Common Pleas. This appeal followed.
After the docketing of this appeal, appellee Palko filed a motion to dismiss the appeal for lack of jurisdiction pursuant to 28 U.S.C. S 1447(d). That section provides that an "order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . ." 28 U.S.C. S 1447(d) (1994).*fn4 As the Supreme Court has explained, S 1447(d) "prohibits review of all remand orders issued pursuant to S 1447(c) whether erroneous or not and whether review is sought by appeal or by extraordinary writ." Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 343 (1976) (emphasis added). However, this prohibition is limited by the requirement that " 'S 1447(d) must be read in pari materia with S 1447(c), so that only remands based on grounds ...