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HANCHEY v. ELLIOTT TRUCK BROKERAGE COMPANY (04/19/66)

decided: April 19, 1966.

HANCHEY, APPELLANT,
v.
ELLIOTT TRUCK BROKERAGE COMPANY, INC.



Appeal from order of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1962, No. 3886, in case of James L. Hanchey v. Elliott Truck Brokerage Company, Inc., and American Fidelity and Casualty Company of Virginia.

COUNSEL

Lewis Kates, with him Leonard B. Edelstein, for appellant.

G. Wayne Renneisen, with him Norman Paul Harvey, and Liebert, Harvey, Herting and Short, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 421 Pa. Page 132]

In February of 1963, appellant, Hanchey, entered judgment against appellee, the Elliott Truck Brokerage Company, Inc. (Elliott), pursuant to a judgment note dated October 9, 1962, in the amount of $16,800, including interest and collection charges. This represented $15,000 which appellee had promised to pay Hanchey in 90 days. On February 28, 1964, a writ of execution was issued, naming as garnishee the American Fidelity and Casualty Company of Virginia (American). American had issued a policy of insurance to Elliott, insuring against cargo damage, and under the circumstances and conditions therein described, it was believed by appellant that Elliott had a claim payable to it under the policy.

In March of 1964, appellant directed interrogatories to the garnishee, American, duly endorsed with a notice to plead. On May 19, 1964, American filed answers to the interrogatories and new matter. On May 21, 1964, appellant, Hanchey, filed additional interrogatories termed "Supplemental Interrogatories", which had not been answered. These interrogatories were

[ 421 Pa. Page 133]

    also endorsed with a notice to plead. On November 19, 1964, appellant filed a praecipe requesting the prothonotary to enter judgment against the garnishee, American, in the amount of $16,800, together with interest and costs for failure to answer the interrogatories. American's petition to have the judgment stricken was granted by the court below; this appeal followed.

Rule 3145, Pa. R. C. P., provides that: "(a) 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 assumpsit. (b) The garnishee in his answer under 'new matter' may include (1) the defenses of the immunity or exemption of property; (2) any defense or counterclaim which he could assert against the defendant if sued by him but he may not assert any defense on behalf of the defendant against the plaintiff or otherwise attack the validity of the attachment; Note: Objections to the attachment, other than the defenses of immunity or exemption, must be raised preliminarily. See Rule 3142. (3) any claim which he could assert against the plaintiff if sued by him."

Rule 3146 provides: "(a) If the garnishee within the time allowed by these rules fails to file an answer to interrogatories containing a notice to answer, the prothonotary on praecipe of the plaintiff shall enter judgment in favor of the plaintiff and against the garnishee in the same amount as the judgment of the plaintiff against the defendant, together with interest and costs. (b) The prothonotary, on praecipe of the plaintiff, shall enter judgment against the garnishee for the property of the defendant admitted in the answer to interrogatories to be in the garnishee's possession, subject to any right therein claimed by the garnishee, but no money judgment entered against the garnishee

[ 421 Pa. Page 134]

    shall exceed the amount of the judgment of the plaintiff against the defendant together with interest and costs. The entry of judgment shall not bar the right of the plaintiff to proceed against the garnishee as to any further property ...


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