Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-20-1994

Sun Buick, Inc. v. Saab Cars USA, Inc.
Precedential or Non-Precedential:

Docket 93-7476




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                          No. 93-7476


           SUN BUICK, INC., t/a Sun Buick-Saab Inc.;
                      EUGENE J. SCHLANGER,

                                  Appellants

                                  v.

                       SAAB CARS USA, INC.

                                  Stephen A. Melnick,
                                  Intervenor-Appellant, Per Clerk
                                  Order of September 10, 1993



         On Appeal from the United States District Court
             for the Middle District of Pennsylvania
                     (D.C. Civ. No. 93-00429)


                    Argued February 28, 1994

                 Before: SLOVITER, Chief Judge,
       ALITO, Circuit Judge, and ROBINSON1, District Judge

                     (Filed June 20, 1994)

Joseph R. Solfanelli
Scranton, PA 18503
          Attorney for Appellants

James A. Mollica, Jr. (Argued)
Timothy Murray
Mollica, Murray & Hogue
Pittsburgh, PA 15219
          Attorney for Appellee

James T. Shoemaker (Argued)
Hourigan, Kluger, Spohrer & Quinn

   1
   Hon. Sue L. Robinson, United States District Judge for the
         District of Delaware, sitting by designation.


                                  1
Wilkes-Barre, PA 18701
          Attorney for Intervenor-appellant



                         OPINION OF THE COURT
SLOVITER, Chief Judge.

            The threshold issue presented by this appeal is whether

an administrative agency, specifically the Pennsylvania Board of

Vehicle Manufacturers, Dealers and Salespersons ("Pennsylvania

Board of Vehicles"), should be considered a "State court" for

purposes of allowing removal from it under 28 U.S.C. § 1441(a)

(1988).    The issue is a legal one over which our review is

plenary.
                                  I.

             In September 1992, Sun Buick, Inc., t/a Sun Buick-Saab,

Inc., and Eugene Schlanger (collectively "Sun Buick"), who

operated a Buick dealership, purchased a Saab franchise and

entered into a franchise agreement with Saab Cars U.S.A., Inc.

Sun Buick operated the Saab dealership out of the same location

that it was operating the Buick dealership it owned.

             On January 26, 1993, Sun Buick entered into an

agreement to sell the Saab franchise to intervenor Stephen

Melnick.    The agreement was contingent on Melnick securing a

dealership from Saab and he began to complete the necessary

paperwork.     In the meanwhile, on February 11, 1993 Sun Buick sold

the Buick dealership to S.B.I. Management Corp.     S.B.I. took over

Sun Buick's lot space and its dealer license, thereby divesting

the Saab dealership of both a location and a license.



                                  2
           Because Saab had informed S.B.I. that Saab operations

could not continue on that lot, Sun Buick suggested to Saab two

alternative locations on which it could operate the Saab

dealership until completion of the sale to Melnick.       Saab

rejected the suggested locations allegedly because it had not

been given enough time to evaluate them, noting that allowing a

relocation at that time would create instability as the

dealership would presumably be moving again once it was sold.

           In a letter dated February 23, 1993, Saab rejected

Melnick as a dealer on the ground that he did not have the staff

or facilities to begin operation of a dealership.       In the same

letter, Saab terminated its franchise with Sun Buick on three

grounds:   (1) Sun Buick lost its dealer license when it sold the

Buick dealership on February 11; (2) since that time and

continuing at least seven business days, no Saab operations were

conducted at the approved facility; and (3) Sun Buick's interest

in the approved facility was terminated in breach of its

obligation to maintain the facility.

           The termination was effective immediately although Saab

acknowledged that Pennsylvania law requires that a manufacturer

give a dealer 60 days notice before termination except in a

situation where "the nature or character of the reason for

termination . . . is such that the giving of such notice would

not be in the public interest."       Pa. Stat. Ann. tit. 63,

§818.9(c) (Supp. 1993).   Saab claimed that immediate termination

was in the public interest because Saab operations had ceased and

Sun Buick was unlicensed.   Saab alleged that it wished to be able


                                  3
to establish replacement Saab representation as soon as possible

so that Saab customers in the area would have access to service.

          On March 2, 1993, Sun Buick filed a complaint with the

Pennsylvania Board of Vehicles alleging that Saab's actions

violated the Board of Vehicles Act, Pa. Stat. Ann. tit. 63,

§818.1 et seq. (Supp. 1993), by terminating the franchise without

good cause and the required 60 days notice,2 and in bad faith.

Sun Buick also alleged that Saab had unreasonably withheld

consent to the sale to Melnick in violation of section

818.9(b)(3).3   On March 17, Sun Buick filed a second complaint

with the Board of Vehicles alleging that Saab "improperly and

unfairly rejected the request for approval of the relocation of

[Sun Buick's] dealership facility."   App. at 37.   The Board

consolidated the two complaints.


2
 Pa. Stat. Ann. tit. 63, § 818.9(c) (Supp. 1993) provides in
relevant part that:

          It shall be a violation of this act for any
          manufacturer . . . to unfairly, without due
          regard to the equities . . . and without just
          provocation cancel the franchise of any
          distributor. . . . Not less than 60 days
          advance notice of such termination . . .
          shall be given . . . unless the nature and
          character of the reason for termination . . .
          is such that the giving of such notice would
          not be in the public interest.

3
 Pa. Stat. Ann. tit. 63 § 818.9(b)(3) (Supp. 1993) provides that
it is a violation of the Act for any manufacturer to:

          Unreasonably withhold consent to the sale,
          transfer or exchange of the franchise to a
          qualified buyer capable of being licensed as
          a new vehicle dealer in this Commonwealth.


                                 4
          Saab removed the action to federal district court on

March 29, 1993.    Melnick filed a motion to intervene, Sun Buick

moved to remand to the Board, and Saab moved to dismiss.     The

district court filed an opinion and order on June 23, 1993: (1)

denying a remand; (2) granting a dismissal for failure to state a

claim; and (3) dismissing the motion to intervene as moot.      Sun

Buick and Melnick appeal.4
                                II.

          We must consider at the outset the underlying

jurisdictional issue presented by the district court's refusal to

remand this case to the Pennsylvania Board of Vehicles.    28

U.S.C. § 1441(a) (1988) governs the removability of actions from

state to federal court and provides in relevant part that "any

civil action brought in a State court of which the district

courts of the United States have original jurisdiction, may be

removed by the defendant" (emphasis added).    Although Sun Buick

did not contend in its brief that the Board of Vehicles was not a

"court" for purposes of section 1441, we raised the issue sua

sponte pursuant to our obligation to be assured of our own

jurisdiction.    See Trent Realty Assocs. v. First Fed. Sav. & Loan
Ass'n, 

, 35 (3d Cir. 1981) ("A federal court is bound

to consider its own jurisdiction preliminary to consideration of

the merits.").

                                 A.

                       The "Functional Test"

4
 Melnick did not file a timely appeal but we granted his motion
to intervene on behalf of the appellants.


                                 5
          On its face, the removal statute limits removal to

cases pending before a state "court."   This should be

dispositive, as the Pennsylvania Board of Vehicles is, by

definition, not a "court."

          The district court found, nonetheless, that the

Pennsylvania Board of Vehicles was a "court" for purposes of

removal because "an examination of its functions . . . revealed

that it was acting in an adjudicatory manner rather than in an

administrative one."   District court op. at 3-4.   In so holding,

it was following the prior determination by a judge of the same

court in Corwin Jeep Sales & Service, Inc. v. American Motors

Sales Corp., 

, 594-95 (M.D. Pa. 1986), which

treated the Pennsylvania Board as a "court" because it would be

adjudicating a dispute between private parties, interpreting a

franchise contract and utilizing the same procedures that courts

use in deciding such disputes.

          The genesis of the "functional test" for purposes of

removal appears to have been the decision in Tool & Die Makers

Lodge No. 78 International Ass'n of Machinists v. General
Electric Co. X-Ray Dep't, 

(E.D. Wis. 1959), in

which the district court refused to remand to the Wisconsin

Employment Relations Board complaints filed by unions alleging

that an employer had engaged in unfair labor practices and

violated the collective bargaining agreement.   The court found

that the Employment Board was a "court" because the subject

matter was in essence breach of contract, the procedures that the

Board employed, e.g., taking depositions and issuing subpoenas,

                                 6
were those of a court, and the Board could enter an order

requiring the person complained of to cease and desist from the

contract violations and reinstate the employees with or without

pay.

          Two decades after the Tool & Die decision, the Court of

Appeals of the Seventh Circuit adopted the "functional test" to

allow removal from an administrative agency.   In Floeter v. C. W.

Transport, Inc., 

(7th Cir. 1979), the court held

that the Wisconsin Employment Relations Commission was a "court"

for removal purposes.   The court adopted a "functional test" that

requires "evaluat[ing] the functions, powers, and procedures of

the state tribunal and . . . the respective state and federal

interests in the subject matter and in the provision of a forum."

  In deciding removal was proper, the court relied

on the facts that the action was one for breach of contract

between private parties, it would have to be decided by federal

law, the procedures and process of the Commission were

essentially judicial, and the Supreme Court of Wisconsin had

recognized that the Commission was vested with "judicial power."

Sch. of Art & Design v. Wisconsin Employment
Relations Comm'n, 

, 230 (Wis. 1978)).

          Similarly, the First Circuit has stated, albeit in

dictum, in Volkswagen de Puerto Rico, Inc. v. Puerto Rico Labor

Relations Board, 

(1st Cir. 1972), that an action

before the Puerto Rico Labor Relations Board would be removable

under the "functional test."   The court reasoned that the

proceedings before the Board were between private parties and

                                7
involved essentially a breach of contract dispute. Significantly,

the court relied on the judicial nature of the Board in general

and not just on the judicial nature of the current proceedings by

emphasizing the Board's "lack of rule-making or 'legislative'

power," "its adjudicative format," and the reference by the

Puerto Rico Supreme Court to the Board's function as being a

"quasi-judicial" one.   

& n.9.   The court lastly

reasoned that, in balancing federal and state interests, the

federal interest in deciding federal law outweighed whatever

interest the state may have.   See 

           The "functional test" was also used by the Fourth

Circuit in Kolibash v. Committee on Legal Ethics, 

(4th Cir. 1989), in its holding that a United States Attorney

could remove a state bar disciplinary proceeding to the federal

court.   The court reasoned that the proceeding was adjudicatory

in nature in that the Committee was an arm of the state court and

conducted itself as a court in holding evidentiary hearings and

taking testimony.   See 

  The force of Kolibash on the

issue before us is diminished, however, because removal in

Kolibash was based on 28 U.S.C. § 1442(a),5 the federal officer
removal statute, which is broadly construed, as distinguished
5
28 U.S.C. § 1442(a) (1988) provides in relevant part:

           A civil action or criminal prosecution
           commenced in a State court against any of the
           following persons may be removed by them to
           the district court . . . :

                   (1) Any officer of the United
                States . . . for any act under
                color of such office . . . .

                                8
from section 1441, the removal statute here, which is strictly

construed.    See id; Abels v. State Farm Fire & Casualty Co., 

(3d Cir. 1985) (28 U.S.C. § 1441(a) "should be strictly

construed and all doubts should be resolved in favor of remand").

             In contrast to some of the above cases, the functional

test was disapproved in County of Nassau v. Cost of Living

Council, 

(Temp. Emer. Ct. App. 1974), where the

court rejected removal from the Cost of Living Council which had

issued an order limiting pay increases.    The court stated that

section 1441(a) contemplates removal from other court proceedings

rather than the "interruption of administrative proceedings." 

see also California Packing Corp. v. I.L.W.U. Local 142,

, 598-99 (D. Haw. 1966) (holding removal from

administrative agencies improper because statute speaks to

removal only from courts and finding Tool & Die reasoning

"strained").

             The courts that have adopted the "functional test" for

interpreting what is a "court" under section 1441 have relied in

large part on the reasoning used by the Supreme Court in Upshur
County v. Rich, 

(1890), where the Court held that

notwithstanding the nomenclature of "county court" as the entity

from which removal was sought, the case did not involve a

removable "suit".    It is true that the Court looked to the actual

powers, composition and procedures of the entity in making its

decision, saying:




                                  9
          The principle . . . is, that a proceeding,
          not in a court of justice, but carried on by
          executive officers in the exercise of their
          proper functions, as in the valuation of
          property for the just distribution of taxes
          or assessments, is purely administrative in
          its character, and cannot, in any just sense,
          be called a suit . . . .

               [T]he appeal from the assessment was
          made to the 'county court' eo nomine, yet
          that this is not a judicial body, invested
          with judicial functions, except in matters of
          probate; but is the executive or
          administrative board of the county, charged
          with the management of its financial and
          executive affairs.

see also Village of Walthill v. Iowa Elec. Light &

Power Co., 

, 648-53 (8th Cir. 1956) (holding removal

from the Nebraska "condemnation court" improper in that "[t]he

three-judge condemnation court [was] in reality just another

board of appraisers").

          It does not follow that because Upshur County held that

a court is not necessarily a "court" for removal purposes, the

Supreme Court has endorsed the view that an administrative agency

might be a "court" for removal purposes.   Therefore, we find

questionable the reasoning of the Tool & Die court that the

Supreme Court has adopted a functional test which would require

us to judge the propriety of removal from a tribunal "by

reference to the procedures and functions of the State tribunal

rather than the name by which the tribunal is 

.

          There is further evidence in other Supreme Court

decisions from the same era that Upshur County did not broadly


                               10
adopt a "functional test" by which an administrative body would

be treated as a "court" for federal removal purposes simply

because it performs a judicial function.   In those cases, when

the Court held that removal was proper it was careful to note

that the body in question was a judicial body under state law.

For example, in Madisonville Traction Co. v. Saint Bernard Mining

Co., 

, 250-51 (1905), the Court stated:
          We cannot doubt, in view of the authorities,
          that the case presented in the County Court
          was a "suit" or "controversy between citizens
          of different States," within the meaning of
          the Constitution and the laws of the United
          States. It was, as already said, a judicial
          proceeding initiated in a tribunal which
          constitutes a part of the judicial
          establishment of Kentucky, as ordained by its
          Constitution . . . ; and the court, although
          charged with some duties of an administrative
          character, is a judicial tribunal and a court
          of record.

(emphasis added).

          Similarly, in Commissioners of Road Improvement

District No. 2 v. St. Louis Southwestern Railway Co., 

, 556-57 (1922), the Court, in upholding a removal from an

Arkansas County Court, noted that the Arkansas constitution

invested that court with "judicial power" and that the state

supreme court had "held the County Court to be a court and

capable of rendering judgment in a proceeding whose judicial

character is much more questionable than here."   We have found no

case from the Supreme Court, nor have the parties cited one,

holding that a case can be removed from an administrative agency

to federal court on the grounds that the administrative agency is

functionally a court.


                               11
          This court has previously examined the status of

administrative agencies as "courts" in another context, i.e., the

section of the Clean Air Act, 42 U.S.C. § 7401 et seq. (1988),

which provides that a private citizen enforcement action may not

proceed if "the Administrator or State has commenced . . . a

civil action in a court of the United States or a State."      42

U.S.C. § 7604(b)(1)(B) (1988) (emphasis added).     In Baughman v.

Bradford Coal Co., 

(3d Cir.), cert. denied, 

(1979), we had to decide whether the federal court had

jurisdiction over the private action notwithstanding that the

Pennsylvania Department of Environmental Resources had already

begun an action against the same defendant before the

Pennsylvania Environmental Hearing Board.    We stated that for

that purpose, "an administrative board may be a 'court' if its

powers and characteristics make such a classification necessary

to achieve statutory goals."   

  However, we held that

the Pennsylvania Hearing Board was not a court in that it "lacked

the power to enjoin violations" of the company's effluent

restrictions, was "empowered only to assess a penalty which

[could] not exceed $10,000," and there was "lack of citizen

intervention of right in the agency proceeding."     

          We considered the identical citizen suit provision,

albeit in the Clean Water Act, in Student Public Interest

Research Group v. Fritzsche, Dodge & Olcott, Inc., 

,

1136 (3d Cir. 1985), where we held, relying on Baughman, that an

EPA enforcement action was not a "court" proceeding.     We

characterized the Baughman inquiry as a dual one:

                                12
          The first question to be answered is whether
          the coercive powers that the administrative
          agency possesses compel compliance with
          effluent limitations . . . . The second
          inquiry concerns the procedural similarities
          the agency proceeding might have to a suit in
          federal court.

  We noted that the EPA's enforcement powers under

the Act were very limited, consisting of the power to issue

"permits, modify permits, and terminate permits for

noncompliance," and that it could not impose any civil penalty,

while a district court could assess fines of up to $10,000 a day.

  We also noted that the procedure the EPA followed

in its enforcement proceedings did not resemble that of a court

in that there was no independent decisionmaker, no witnesses, no

records kept, and no evidence presented by opposing parties.     See

also Proffitt v. Commissioners, Township of Bristol, 

, 506-07 (3d Cir. 1985) (under identical citizen suit

provisions in other environmental statutes, EPA's compliance

order not a suit in a court because the administrative tribunal

did not have "power to accord relief equivalent to that available

from a court").

          We need not decide the viability of the dictum in these

cases suggesting that a court's right to proceed with a citizen's

suit in an environmental case might be precluded by action before

an administrative agency as well as before a court, because the

issue here is a different one.   However, it is of some interest

that the Baughman reasoning was rejected by both the Second and

Ninth Circuits.   In Friends of the Earth v. Consolidated Rail



                                 13
Corp., 

(2d Cir. 1985), the Second Circuit interpreted

the same citizen suit provision of the Clear Air Act that was at

issue in Baughman.   The court, reasoning that when a statute is

unambiguous the court's task is simply to enforce it as written,

held that it would be "inappropriate to expand th[e] language to

include administrative enforcement actions" as equivalent to

those of civil actions in a "court."    

  Similarly, the

Ninth Circuit rejected Baughman in Sierra Club v. Chevron U.S.A.,

Inc., 

, 1525 (9th Cir. 1987), stating "[w]e prefer

the Second Circuit's reading . . . over the Third Circuit's

reading."   The court emphasized that it would not take the

"extraordinary step of ignoring the plain language of the

statute."   

we were still inclined to follow Baughman's

application of the "functional" test for purposes of permitting

maintenance of a private citizen enforcement suit in

environmental litigation, the removal context is sufficiently

distinct to make the cases distinguishable.    What is significant

is that no case in this court ever held that an administrative

agency was actually a "court."   Nevertheless, we may pretermit

the decision whether removal under section 1441(a) from an

administrative agency is ever permissible in an exceptional case,

because it is clear that the Pennsylvania Board of Vehicles would

not qualify under any circumstances.

                                 B.

            Status of the Pennsylvania Board of Vehicles



                                 14
          Under any test, the Pennsylvania Board of Vehicles

would not qualify as a court because its lack of judicial

attributes is similar to that of the agencies which we held were

not courts in the environmental cases.     As we stated in Baughman,

"[g]enerally, the word 'court' in a statute is held to refer only

to the tribunals of the judiciary and not to those of an

executive agency with quasi-judicial 

.

It follows that even if an entity is not called a "court," it

must have the attributes of a court before it should be

considered as one.

          Rather than possessing the powers of a court, the

Pennsylvania Board of Vehicles administers and enforces the Board

of Vehicles Act.     It regulates the licensing of salespersons,

dealers, brokers and manufacturers.     It passes on the

qualifications for licensure, investigates allegations of

wrongful acts, and brings criminal prosecutions for unauthorized

practices (i.e. acts as a prosecutor).     An examination of the

Board's powers and duties makes it clear that its powers are

those of the usual type of administrative agency rather than

those of a court.6
6
Section 818.4 entitled "Powers and duties of board" provides:

          The board shall have the power and its duty
          shall be to:

             (1) Provide for and regulate the licensing
          of salespersons, dealers, brokers,
          manufacturers, factory branches,
          distributors, distributor branches, factory
          or distributor representatives and
          wholesalers as defined in this act.



                                  15
   (2) Review and pass upon the
qualifications of applicants for licensure
and to issue, except as otherwise provided
herein, a license to engage in the said
businesses to any applicant who is approved
by the board and who meets the requirements
of this act.

   (3) Investigate on its own initiative,
upon complaint of the Department of
Transportation, Department of Community
Affairs, Department of Revenue or the Office
of the Attorney General, or upon the verified
complaint in writing of any person, any
allegations of the wrongful act or acts of
any licensee or person required to be
licensed hereunder.

   (4) Administer and enforce this act and to
impose appropriate administrative discipline
upon licensees found to be in violation of
this act.

   (5) Bring criminal prosecutions for
unauthorized, unlicensed or unlawful
practices and bring an action to enjoin such
practices.

   (6) Require each licensee to register
biennially with the board.

   (7) Keep a record showing the names and
addresses of all licensees licensed under
this act.

   (8) Keep minutes and records of all its
transactions and proceedings especially with
relation to the issuance, denial,
registration, formal reprimand, suspension
and revocation of licenses. In all actions
or proceedings in any court, a transcript of
any board record or any part thereof, which
is certified to be a true copy by the board,
shall be entitled to admission in evidence.

   (9) Adopt, promulgate and enforce such
rules and regulations not inconsistent with
this act as are deemed necessary and proper
to effectuate the provisions of this act,


                     16
             In the cases following Baughman where we determined

that various administrative actions were not proceedings in a

"court," we held that an administrative agency would not be

considered a court if it did not have the "power to accord relief

equivalent to that available from a court."     

.    The Pennsylvania Board of Vehicles does not have such

power in that it cannot award damages.     Its powers of action to

afford relief are circumscribed: it can only enjoin a franchise

termination alleged to be in violation of section 818.9(c) or the

addition or relocation of a new vehicle dealer that is in

violation of section 818.18,7 and it can impose disciplinary

sanctions.     As the Pennsylvania Commonwealth Court has

recognized:

             including but not limited to, established
             place of business.

                (10) Submit annually, to the
             Transportation Committees of the House and
             Senate, a description of the types of
             complaints received, status of the cases,
             board action which has been taken and length
             of time from the initial complaint to final
             board resolution.

                (11) Submit annually to the department an
             estimate of the financial requirements of the
             board for its administrative, investigative,
             legal and miscellaneous expenses.

             (12) Submit annually to the House and
          Senate Appropriations Committees, 15 days
          after the Governor has submitted his budget
          to the General Assembly, a copy of the budget
          request for the upcoming year which the board
          previously submitted to the department.
7
 Section 818.18 governs when a new vehicle dealer may be
established or relocated into a relevant market area where the
same line-make is already represented.


                                  17
          The Act provides for a temporary stay in the
          event of a franchise termination appeal
          brought under Section 9(c). It does not,
          however, imbue the Board with injunctive
          powers in any other area. Consequently, any
          determination by the Board that a
          manufacturer has acted unreasonably in
          withholding consent to the sale of a
          franchise under Section 9(b)(3) could result
          only in a disciplinary sanction against the
          manufacturer.

University Lincoln Mercury, Inc. v. Pennsylvania Board of Vehicle

Manufacturers, 

, 1150 (Pa. Commw. Ct. 1990).

          The limited nature of the Board's powers was also

emphasized in Trailmobile, Inc. v. State Board of Manufacturers,

(Pa. Commw. Ct. 1992), appeal denied, 

(Pa. 1993):
               The Act grants certain disciplinary
          powers to the Board. When the Board
          determines that a violation of the Act has
          been committed it may formally reprimand,
          suspend the license of, or refuse to issue or
          renew the license of the violator.
          Additionally, Section 19 of the Act provides
          that the Board may levy a civil penalty of
          $1,000 upon any current licensee who violates
          a provision of the Act.

               We reject Tri-State's request for
          additional relief because the Act is specific
          in its grant of power to the Board. We have
          already stated that the power and authority
          to be exercised by administrative commissions
          must be conferred clearly and unmistakably by
          the legislature; a doubtful power does not
          exist. Other than the temporary stay that
          may be issued in a suspected violation of
          Section 18 of the Act, and the permanent
          injunction that may issue if the Board
          determines that there is good cause for not
          permitting the addition or relocation of a
          new vehicle dealer under Section 18, the Act
          does not grant the Board injunctive powers.




                               18


(citations omitted).    The fact that the Board can only

assess fines of $1,000 is significant considering our reliance in

Baughman on the Environmental Hearing Board's ability to impose

fines of only $10,000 as one of the factors influential to our

finding that the Board was not a 

.

          We assume that the Pennsylvania legislature expressly

provided that any person who may be injured by a violation of the

Act may bring an action for damages, including punitive damages,

or equitable relief including injunctive relief in any court of

competent jurisdiction8 in recognition of the Board's inability

to award damages or full injunctive relief.

          Not only does the Pennsylvania Board of Vehicle's have

a dearth of judicial-type powers but its composition also has

none of the characteristics of a court such as disinterestedness,
8
Section 818.20 entitled "Civil actions for violations" provides:

             (a) Action for damages. -- Notwithstanding
          the terms, provisions or conditions of any
          agreement or franchise or other terms or
          provisions of any novation, waiver or other
          written instrument, any person who is or may
          be . . . injured in his business or property
          by a violation of a provision of this act
          relating to that franchise, or any person so
          injured because he refuses to accede to a
          proposal for an arrangement which, if
          consummated, would be in violation of this
          act, may bring an action for damages and
          equitable relief, including injunctive
          relief, in any court of competent
          jurisdiction.

             (b) Punitive Damages. -- If any person
          engages in continued multiple violations of a
          provision or provisions of this act, the
          court may award punitive damages in addition
          to any other damages under this act.


                                  19
separation from the executive and learnedness in the law.    The

Board is composed of three new car dealers, three used car

dealers, one mobile home dealer, one salesperson, one

recreational dealer, one motorcycle dealer, the Commissioner of

Professional and Occupational Affairs, the Secretary of the

Department of Transportation or his designee, the Director of

Consumer Protection in the Office of Attorney General or his

designee and four members of the general public having no

connection to the vehicle business.   See Pa. Stat. Ann. tit. 63,

§ 818.3(a) (Supp. 1993).    This composition is unlike that of a

court in that it is composed mostly of people who have jobs other

than that of serving as judges, see Pa. Const. art. 5, § 17(a)

(mandating that judges devote full time to their judicial

duties), and includes members of the executive branch as well as

persons who are likely to be partial toward dealers and their

industry.   While lay persons may sometimes be well versed in the

law, the absence of any requirement of legal knowledge or

experience by almost all of the members of the Board is striking.

            Additionally, Pennsylvania, itself, does not consider

the Board a court.    See 

; University
Lincoln 

.    It is not described in the

portions of the Pennsylvania Constitution related to its court

system, see Pa. Const. art. 5, or in the Pennsylvania statutes

relating to the court system.   See 42 Pa. Cons. Stat. Ann. et

seq. (1981 & Supp. 1993).

            In enumerating the ways in which the Pennsylvania Board

of Vehicles is unlike a court, it becomes clear that Floeter,

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Volkswagen, and Tool & Die are distinguishable on their facts. In

both Floeter and Volkswagen, the administrative agencies had been

acknowledged by their state supreme courts as having judicial

powers, and the agencies had more judicial powers and procedures

than the Pennsylvania Board of Vehicles has.     The Tool & Die

court relied in part on powers that the administrative agency at

issue there had that exceeded the powers of the Board of

Vehicles, namely, ordering the affirmative relief of

reinstatement of employees with pay.

            Finally, we note that the district court in this case

adopted the analysis used in Corwin Jeep 

, when it held that removal was proper if the Board "was

acting in an adjudicatory manner rather than in an administrative

one."   District court op. at 3-4.    However, this reasoning

inappropriately conflates two requirements of the removal

statute.    Under 28 U.S.C. § 1441(a), "any civil action" of which

the district courts have original jurisdiction and was "brought

in a State court" may be removed to the district court.     The

requirement that it be a "civil action" is separate from the

requirement that it be brought in a "State court."

            The distinction was made clear in Commissioners of Road
Improvement District No. 2 v. St. Louis Southwestern Railway, 

, 550 (1922), where the Supreme Court analyzed these

requirements separately in deciding whether a proceeding in a

state county court "to assess benefits and damages growing out of

a road improvement was properly removed to the federal District

Court."    The Court, after noting that the county court had been

                                 21
recognized by the state supreme court to be a court, went on to

examine the proceeding to determine whether it was a "judicial

controversy," as opposed to an administrative concern:
          Of course, the statutory designation of the
          action of a body as a judgment, or the
          phrasing of its finding and conclusion in the
          usual formula of a judicial order, is not
          conclusive of the character in which it is
          acting. When we find, however, that the
          proceeding before it has all the elements of
          a judicial controversy, to wit, adversary
          parties and an issue in which the claim of
          one of the parties against the other capable
          of pecuniary estimation, is stated and
          answered in some form of pleading, and is to
          be determined, we must conclude that this
          constitutional court is functioning as such.

(citation omitted).

          If we analyze the status of the Pennsylvania Board of

Vehicles separately from the nature of the proceedings before it,

it becomes clear that, in general, the Board's procedures,

functions, and character do not make it a court.   It is therefore

irrelevant whether the proceeding may qualify as a "civil action"

because it is a contract dispute between two private parties, or
even whether it could be brought as an original proceeding in the

district court on the basis of diversity jurisdiction.    The

matter was not brought in a "State court" and therefore was not

removable under section 1441(a).
                                 III.

          Applying the general principle that the removal statute

is to be strictly construed, we hold that an administrative

agency without the attributes of a court should not be considered



                                 22
a "State court" under 28 U.S.C. § 1441(a).   Therefore, we will

reverse the judgment of dismissal of the district court and

remand this case to the district court with directions that it be

remanded to the Pennsylvania Board of Vehicles.




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