Submitted under Third Circuit Rule 12(6) March 3, 1993.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Helen W. Angus appeals from an order entered on July 22, 1992, which denied her motion to remand this action to the Court of Common Pleas of Allegheny County, Pennsylvania, and which converted defendant Shiley Inc.'s motion to dismiss into a motion for summary judgment which the court then granted. We will affirm.
We decide this appeal on the facts as alleged in Angus's complaint in the common pleas court. Angus, a Pennsylvania citizen, charged that in 1985 Shiley, a California corporation with its principal place of business in California, was in the business of manufacturing and selling Bjork-Shiley Convexo-Concave mitral heart valves for insertion into patients' hearts. On July 29, 1985, a surgeon implanted a Shiley valve into Angus's heart. Shiley manufactured and sold the valve anticipating that it would be implanted without further inspection or testing and knowing that a valve failure was likely to lead to the recipient's death or injury.
According to the complaint, prior to July 29, 1985, Shiley knew that an increasing number of its valves had experienced "strut fracture," i.e., an "outlet strut" would fracture spontaneously and without warning and cause the recipient's death or injury. Furthermore, Shiley recognized that valve recipients who learned of this risk were likely to suffer from extreme anxiety and emotional distress and to change their lifestyles by restricting their activities. On or about April 2, 1991, Angus learned that her valve was at significant risk of a fracture which could lead to her death.
Angus charged that Shiley was liable to her because it deliberately manufactured the valves notwithstanding its knowledge of the strut fracture problem, failed to warn Angus of the problem, misrepresented the product, and concealed its knowledge of the problem.
As a result Angus asserted that Shiley was liable to her for "intentional infliction of emotional distress," "punitive damages," and "negligent infliction of emotional distress." Thus, she sought to recover on three counts, one for each of these theories, in each count seeking damages "in excess" of $20,000.
Shiley filed a timely notice removing the case to the district court. Shiley asserted that it believed Angus's claimed damages would exceed $50,000, exclusive of interest and costs, and that the matter was thus within the jurisdiction of the district court under 28 U.S.C. § 1332 and was removable pursuant to 28 U.S.C. § 1441(a). Shiley attached an affidavit of its attorney to the notice of removal which, though denying that Shiley was liable, recited his belief that Angus's claim exceeded $50,000, exclusive of interest and costs.
Angus filed an "answer to notice of removal" in the district court denying that she claimed damages in excess of $50,000 and indicating that she "hereby stipulates that her damages do not exceed the sum of $50,000.00." Thus, she contended that the case had not been removed properly to the district court and asked that it be remanded to the state court. The district court treated the answer as a motion to remand.
Shiley filed a motion to dismiss in the district court pursuant to Fed.R.Civ.P. 12(b)(6), pointing out that the valve had not failed and was functioning properly. Accordingly, Shiley asserted that Angus "failed to state any claim against [it] because [she] has not sustained any legally-cognizable present injury." Shiley contended that Angus simply claimed that the "valve may eventually fail."
The district court disposed of the case in a memorandum opinion and accompanying order of July 22, 1992. The court held, citing Edwards v. Bates County, 163 U.S. 269, 16 S.Ct. 967, 41 L.Ed. 155 (1896), and Government of Virgin Islands v. Sun Islands Car Rentals, Inc., 819 F.2d 430, 432 (3d Cir.1987), that it had jurisdiction because Angus's three claims totaled $60,000. It then said that even if the two claims for infliction of emotional distress were treated as one, it was still likely that the $50,000 jurisdictional threshold was met because Shiley filed an affidavit detailing its good faith belief that the claimed damages exceeded the jurisdictional amount.
The court then held that Angus's stipulation that the amount in controversy did not exceed $50,000 was ineffective as it was filed after the case was removed and that Shiley was entitled to invoke federal jurisdiction predicated on the allegations in the complaint. Accordingly, because jurisdiction attached when the case was removed, Angus could not defeat it with her subsequent stipulation.
The court next addressed the case on the merits, indicating that it would treat Shiley's motion to dismiss as a motion for summary judgment. It said that while ordinarily it would give a plaintiff an opportunity to present additional materials to meet a motion to dismiss converted into a motion for summary judgment, it would not do so in this case because nothing could change the facts that the valve always functioned properly and Angus's emotional distress was related to a revelation of the valve problems to her by a third party rather than to Shiley's conduct. The court acknowledged that while under Pennsylvania law, which the parties agree is applicable, there might be recovery for emotional distress without a physical injury, such a recovery could be possible only if the defendant's conduct was so outrageous that
A. The jurisdictional issue.
Angus first contends that the district court should have remanded the case to the Court of Common Pleas of Allegheny County because the amount in controversy did not exceed the sum or value of $50,000, exclusive of interest and costs, as required for the exercise of diversity jurisdiction under 28 U.S.C. § 1332(a). Thus, in Angus's view, Shiley could not remove the case under 28 U.S.C. § 1441(a). In this regard she cites Boyer v. Snap-On-Tools Corp., 913 F.2d 108, 111 (3d Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991), for the proposition that the removal statutes are "to be strictly construed against removal and all doubts should be resolved in favor of remand." She maintains that she has only one claim for emotional distress predicated on alternative theories. Therefore, according to Angus, her total claim was for damages in excess of only $40,000, $20,000 compensatory and $20,000 punitive. She also points out that in her answer to the notice of removal she stipulated that her damages do not exceed $50,000.
As an initial matter, we note that Angus's stipulation that her damages do not exceed $50,000 has no legal significance because a plaintiff following removal cannot destroy federal jurisdiction simply by amending a complaint that initially satisfied the monetary floor. See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 293-94, 58 S.Ct. 586, 592-93, 82 L.Ed. 845 (1938); Albright v. R.J. Reynolds Tobacco Co., 531 F.2d 132, 135 (3d Cir.), cert. denied, 426 U.S. 907, 96 S.Ct. 2229, 48 L.Ed.2d 832 (1976).
The general federal rule is to decide the amount in controversy from the complaint itself. Horton v. Liberty Mutual Ins. Co., 367 U.S. 348, 353, 81 S.Ct. 1570, 1573, 6 L.Ed.2d 890 (1961). Assuming, as Angus's urges us to do, that the complaint asserts only two claims, one for compensatory damages in excess of $20,000, and one for punitive damages in excess of $20,000, we find, as did the district court, that the jurisdictional minimum is met. Contrary to
In reaching our result, we note that contrary to Angus's contention, Boyer v. Snap-On-Tools Corp. supports our decision. In Boyer, the defendants sought to remove on a diversity basis a case in which the plaintiff and certain of the defendants were not diverse. In that context, we indicated that the removing defendant has a heavy burden of persuasion to demonstrate that the plaintiffs fraudulently have joined a party to destroy diversity jurisdiction and that all doubts should be resolved in favor of remand. 913 F.2d at 111. Thus, to avoid remand, the defendant was required to demonstrate that there was no possibility that a state court would find that the plaintiff pleaded a valid cause of action against a defendant who was not diverse.
The reasoning of Boyer requires an affirmance of the order denying remand for in Boyer we emphasized that the district court could disregard a party for diversity purposes only following a generous reading of the complaint. Accord Batoff v. State Farm Ins. Co., 977 F.2d 848, 851-52 (3d Cir.1992). Here a similarly generous reading of the complaint requires that the motion to remand be denied for if Angus suffered from the anxiety and ailments she attributed to the valve it would have been unreasonable for the court to hold that her damages could not exceed $50,000.
B. The procedure in the district court.
The district court said that it was treating Shiley's motion to dismiss as if it sought summary judgment. Angus contends that the court erred in this procedure because it did not give the parties a reasonable opportunity as required by Fed. R.Civ.P. 12(b) to present all material made pertinent to a motion under Fed.R.Civ.P. 56. After a careful review, we have not been able to understand why the district court said that it was converting the motion to dismiss into a motion for summary judgment for we see nothing in its opinion referring to matters outside of the pleadings. The district court did consider Shiley's attorney's affidavit reciting his belief that Angus's claim exceeded $50,000, but that affidavit was germane only on the remand issue. The only fact that was not explicitly set forth in the complaint on
C. The merits.
Angus basically contends that under Pennsylvania law a purchaser of a properly functioning product can recover damages against its manufacturer even though the product has caused no direct physical harm to her and she cannot plead that it ever will. Neither party points to any Supreme Court of Pennsylvania precedent directly controlling the result. Nonetheless, based on the cases involving the infliction of emotional distress, we are convinced that the district court correctly found that no basis for relief was stated in Angus's complaint.
It seems to us that the Supreme Court of Pennsylvania would find that no relief may be granted on the allegations of the complaint here for two independent reasons, either of which would bar this action. First, whatever may have been true in other cases, Angus has not alleged that the valve implanted in her is defective, a prerequisite to liability in a products liability action. See Walton v. Avco Corp., 530 Pa. 568, 610 A.2d 454, 458 (1992). While Angus has not pleaded this case as a classic products liability action, there is no escaping that her action is dependent on Shiley's having supplied the valve. Thus, regardless of how Angus pleaded her claims, they include a products liability aspect. Second, Angus has not suffered a compensable injury as the direct impact from the manufacture, sale, and implanting of the valve was on her emotional state and the allegations of this case will not support a recovery for emotional injuries. See Deleski v. Raymark Indus., Inc., 819 F.2d 377, 380 (3d Cir.1987); Brinkman v. Shiley, Inc., 732 F.Supp. at 34; Beradi v. Johns-Manville Corp., 334 Pa.Super. 36, 482 A.2d 1067, 1071-72 (1984).
We are aware, as was the district court in Brinkman, that Pennsylvania courts have recognized causes of action for intentional infliction of emotional distress even though the plaintiff has not suffered a direct physical injury, but these cases have been in narrow situations involving particular plaintiffs in which defendants were accused of wrongful conduct either aimed specifically at the plaintiffs or likely to have a special impact on them as distinguished from a large group of persons. 732 F.Supp. at 34. See Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118, 121-22 (1970) (stating that where defendant allegedly assisted another person who killed plaintiffs' son in concealing the body, cause of action for intentional infliction of emotional distress could lie); Banyas v. Lower Bucks Hosp., 293 Pa.Super. 122, 437 A.2d 1236, 1238-39 (1981) (defendant's employees allegedly fabricated records to suggest plaintiff killed third party, causing criminal charges to be filed against plaintiff); see also Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir.1979) (in banc) (defendant's team physician falsely stated to the press that plaintiff suffered
Finally we acknowledge that Angus contends that Shiley is liable to her because it failed to warn her of the dangers associated with the valve. But this allegation at least at this time cannot be the basis for liability because the valve has not failed and the lack of warning did not cause Angus somehow to misuse the valve or was not otherwise the proximate cause of injury to Angus. See Morris v. Pathmark Corp., 405 Pa.Super. 274, 592 A.2d 331, 333 (1991), allocatur granted, 530 Pa. 644, 607 A.2d 254 (1992).
The order of July 22, 1992, will be affirmed.
Cole obviously is distinguishable from this case because there was nothing speculative in Shiley's assessment of the value of Angus's claims. Thus, we have no occasion to consider whether we should follow Cole. We do indicate, however, that where a complaint is ambiguous as to the damages asserted and the controversy seems small, it is conceivable that a court justifiably might consider a subsequent stipulation as clarifying rather than amending an original pleading. There is, after all, a distinction between explaining and amending a claim. Of course, as the Supreme Court explained in St. Paul Mercury Indemnity Co. v. Red Cab Co., a plaintiff seeking to guarantee against removal "may resort to the expedient of suing for less than the jurisdictional amount." 303 U.S. at 294, 58 S.Ct. at 593.