Scanlin v. Uitca First Ins. Co.

Decision Date06 April 2006
Docket NumberNo. 3:06 CV 385.,3:06 CV 385.
Citation426 F.Supp.2d 243
PartiesTimothy SCANLIN Plaintiff, v. UTICA FIRST INSURANCE COMPANY Defendant.
CourtU.S. District Court — Middle District of Pennsylvania

Howard A. Rothenberg, Herlands Rothenberg & Levine, Scranton, PA, for Plaintiff.

Jay Barry Harris, Lee Applebaum, Fineman, Krekstein & Harris, P.C., Philadelphia, PA, for Defendant.


KOSIK, District Judge.

Before the court is the plaintiff, Timothy Scanlin's (hereinafter "Plaintiff") motion to remand to state court. This garnishment action follows a suit for personal injuries filed by Plaintiff against Robert Brown and Marywood University in the Lackawanna County Court of Common Pleas. Plaintiff and Mr. Brown entered into an agreement pursuant to which: (1) judgment in the amount of $350,000 was entered against Mr. Brown; (2) Mr. Brown assigned to Plaintiff any claims that Mr. Brown had against his insurer, UTICA First Insurance Company (hereinafter "Utica"); and, (3) Plaintiff agreed not to execute the judgment against Mr. Brown. Plaintiff initiated the instant garnishment action by serving UTICA with a writ of execution. UTICA removed the matter to this court with jurisdiction founded upon diversity. For the reasons that follow, we will deny Plaintiffs motion to remand and direct Plaintiff to Me a complaint within twenty (20) days of the attached order.


On August 6, 2002, Plaintiff brought an action for personal injuries against Robert Brown and Marywood University. Plaintiff alleged that Mr. Brown struck Plaintiff with a chair on or about March 18, 2000. Mr. Brown's parents held a homeowner's insurance policy with UTICA at the time of the assault. On February 26, 2001, Mr. Brown pleaded guilty to criminal charges arising from the incident. On November 12, 2002, UTICA notified Mr. Brown's parents that coverage would not be provided and that counsel retained by UTICA for Mr. Brown would request withdrawal. On February 5, 2003, the Lackawanna County Court of Common Pleas granted Mr. Brown's counsel leave to withdraw. Plaintiff subsequently reached an agreement with Mr. Brown pursuant to which the latter would permit an award of $350,000 to be entered against him and assign to Plaintiff any claims, including bad faith, that Mr. Brown had against UTICA resulting from it's denial of coverage. In exchange for the entry of an award and the assignment of claims, Plaintiff agreed to abstain from enforcing the judgment against Mr. Brown. On March 23, 2005, Judge Carmen Minora of the Lackawanna County Court of Common Pleas signed an order entering judgment in favor of Plaintiff. Judge Minora's order included the following: "IT IS FURTHER ORDERED AND DECREED that the Honorable Carmen Minora of the Court of Common Pleas of Lackawanna County shall retain jurisdiction over this matter and all matters related to this Judgment."

On January 19, 2006, Plaintiff filed a praecipe for writ of execution to be served upon UTICA in order to enforce the judgment entered against. Mr. Brown. Plaintiff filed the praecipe under the same state court docket number as the suit between Plaintiff and Mr. Brown. UTICA received the writ on January 23, 2006. The sheriff's return of service of the writ upon UTICA was filed on January 30, 2006. UTICA filed a notice of removal with this court on February 21, 2006, on the basis of diversity jurisdiction. (Doc. 1). Plaintiff filed a motion to remand on February 22, 2006. (Doc. 2). UTICA filed a response and both parties filed subsequent reply and sur-reply briefs. (Does. 3, 6-9).


Plaintiffs motion seeks to remand this action to Judge. Minora of the Lackawanna County Court of Common Pleas. Plaintiff notes that the state court order entering judgment in favor of Plaintiff and against tortfeasor, Robert Brown, provides that Judge Minora of the Court of Common Pleas for Lackawanna County is to retain jurisdiction over that matter and, "all matters related to [the] judgment." Plaintiff contends that the garnishment action against UTICA is a matter related to the judgment entered in the tort action to which UTICA was not a party. Plaintiff concludes, therefore, that the state court retains jurisdiction in this instance. More recently, in his reply brief in support of the motion to remand, Plaintiff requests that we alternatively consider his motion as one for abstention. Plaintiff requests that we stay any further proceeding until the state court has had the opportunity to conduct a hearing on the garnishment action. Neither of Plaintiffs arguments persuade us to decline jurisdiction.


Under 28 U.S.C. § 1441(a), "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 . . . to the district court of the United States." 28 U.S.C. § 1441(a). An action shall be remanded pursuant to 28 U.S.C. § 1447(c), at any time the district court appears to lack jurisdiction. A defendant may remove an action on the basis of diversity of citizenship if there is complete diversity between all named plaintiffs and all named defendants, and no defendant is a citizen of the forum State. Lincoln Prop. Co. v. Roche,___ U.S. ___, ___, 126 S.Ct. 606, 610, 163 L.Ed.2d 415 (U.S.2005). Upon a motion to remand, the removing party bears the burden of demonstrating that removal was proper. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). "The party asserting jurisdiction bears the burden of showing the action is properly before the federal court. The statute governing removal, 28 U.S.C. § 1441, must be strictly construed against removal." Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 219 (3d Cir.2005) (citing Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir.2004)). Ruling on the removal of any action is the prerogative of the federal courts. See Harrison v. St. Louis & S.F.R. Co., 232 U.S. 318, 329, 34 S.Ct. 333, 58 L.Ed. 621 (1914) ("as the right given to remove by the United States law is paramount, it results that it is also of the essence of the right to remove, that when an issue of whether a prayer for removal was rightfully asked arises, a Federal question results which is determinable by the courts of the United States free from limitation or interference arising from an exertion of state power").

1. Procedure And Substance Of Garnishment Actions in Pennsylvania

Generally, a garnishment action is a means by which a plaintiff may recover upon judgment against a defendant by executing against a third party holding property or some other interest owed to the defendant. The procedure for garnishment actions in Pennsylvania is set forth in Pa.R.Civ.P. 3101-59. A garnishment action is initiated when a plaintiff files a praecipe for writ of execution to be served upon the garnishee. The plaintiff may then file and serve interrogatories upon the garnishee that frame the issues to be litigated. Pa.R.Civ.P. 3144. "The procedure between the plaintiff and the garnishee shall, as far as practicable, be the same as though the interrogatories were a complaint and the answer of the garnishee were an answer in a civil action." Pa.R.Civ.P. 3145(a).

Pennsylvania courts permit a tort plaintiff to institute a garnishment action against a defendant's insurer. "In a motor vehicle trespass action resulting in judgment against an insured defendant, execution against the defendant's insurer as garnishee has long been recognized under prior practice and under the present Rules of Civil Procedure as a means of satisfying plaintiffs judgment. The defendant insurer is a garnishee within the meaning of Rule 3101(b) defining a garnishee. Service of the writ of execution under Rule 3111 constitutes the attachment." Helms v. Chandler, 423 Pa. 77, 80, 223 A.2d 30 (Pa.1966). Insurance coverage issues may be litigated in a garnishment action. See Id. (permitting defendant insurer to file amended new matter asserting no coverage owed insured due to his failure to cooperate in defense of underlying personal injury action); see also Jennison v. Aacher, 201 Pa.Super. 583, 193 A.2d 769 (1963) (affirming denial of garnishee's motion for judgment n. o. v. in action where garnishee offered defense of tortfeasor's failure to cooperate in underlying personal injury action). Specifically, bad faith claims against a tort defendant's insurer may be raised in garnishment proceedings. See Shearer v. Reed, 286 Pa.Super. 188, 428 A.2d 635 (1981) (affirming jury award in bad faith garnishment action).

2. Flexible Analysis Employed To Determine Whether Garnishment Proceedings Properly Removed

The Third Circuit has not addressed whether a garnishment action in state court may be removed to a federal district court on diversity grounds. Similarly, there is no helpful precedent from this District Court on the issue. There are several reported cases dealing with the issue from the Eastern District of Pennsylvania. The Eastern District cases fail to provide one rule governing the removal of all garnishment proceedings. Rather, those cases rely upon a flexible analysis to determine whether a particular action is removable on a case by case basis. We find the reasoning employed in the Eastern District opinions persuasive and apply a similar analysis here.

In its brief in opposition to Plaintiff's motion, UTICA relies heavily upon the Eastern District case of Graef v. Graef 633 F.Supp. 450 (E.D.Pa.1986), for the proposition that Pennsylvania garnishment actions are removable to federal court. Graef involved a motor vehicle accident in which the plaintiff/wife won a verdict against the defendant/husband in state court. Plaintiff then pursued a garnishment action in state court against defendant's insurer, apparently seeking damages based upon a claim of bad faith. Id. at 451. The insurer/garnishee, removed the matter to federal court,...

To continue reading

Request your trial
23 cases
  • Stark–romero v. the Nat'l R.R. Passenger Co. (amtrak)
    • United States
    • U.S. District Court — District of New Mexico
    • January 12, 2011 the case presented “several issues for resolution that are distinct from the original state action”); Scanlin v. Utica First Ins. Co., 426 F.Supp.2d 243, 250 (M.D.Pa.2006) (finding that the garnishment proceeding was removable as a “distinct ‘civil action’ ” where the issue sought to be ......
  • Mach v. Triple D Supply Llc
    • United States
    • U.S. District Court — District of New Mexico
    • February 28, 2011
    ...factor this court can consider in determining whether a civil action is separate for purposes of removal. See Scanlin v. Utica First Ins. Co., 426 F.Supp.2d 243, 248 (M.D.Pa.2006).Nungesser v. Bryant, 2007 WL 4374022, at *6.3. Procedural Requirements for Removal. Section 1446 of Title 28 of......
  • Hayes v. Reliance Standard Life Ins. Co.
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • March 17, 2015 remand a removed action, the removing party bears the burden of demonstrating that removal was proper. Scanlin v. Utica First Ins. Co., 426 F.Supp.2d 243, 246 (M.D.Pa.2006) (citing Boyer v. Snap–On Tools Corp., 913 F.2d 108, 111 (3d Cir.1990) ). “The party asserting jurisdiction bears th......
  • Boggs v. Harris
    • United States
    • U.S. District Court — Western District of Pennsylvania
    • December 22, 2016
    ...the majority of those cases involved garnishment actions. SeeId .; Connecticut Bank , 440 F.Supp.2d at 352 ; Scanlin v. Utica First Ins. Co. , 426 F.Supp.2d 243, 245 (M.D. Pa. 2006) ; Haines by Midlantic Bank, N.A. v. Donn's, Inc. , No. CIV. A. 95–1025, 1995 WL 262534, at *1 (E.D. Pa. Apr. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT