The opinion of the court was delivered by: HERMAN
This action has arisen as a result of an automobile collision which occurred in Lancaster County, Pennsylvania, on August 11, 1967, in which the plaintiffs Lillian and Alfred Ryer were occupants in one of the vehicles (driver and passenger, respectively), and the defendant Harold F. Mohn was the driver of the other vehicle. Defendant Mohn is employed by defendant Harrisburg Kohl Brothers, Inc., which leased the vehicle involved herein from Landau Auto Leasing, Inc.
Suit was commenced by the plaintiffs on or about August 12, 1968 in the Supreme Court of the State of New York, County of Bronx, Defendants Harrisburg Kohl Brothers, Inc., Landau Auto Leasing, Inc., and Harold F. Mohn are Pennsylvania citizens, not doing business in the State of New York. Jurisdiction was obtained pursuant to an attachment proceeding of the insureds' (Harrisburg Kohl Brothers, Inc., and Harold F. Mohn) automobile liability insurance policy issued issued by Potomac Insurance Company, intervenor herein, which company is licensed to do business in the State of New York. N.Y. CPLR Section 5201.
Thereafter, the defendants, appearing specially, petitioned the United States District Court for the Southern District of New York for removal, pursuant to 28 U.S.C. Section 1441. Defendants (except Landau which had no interest in the insurance policy) having petitioned for removal then sought an order to vacate the attachment of the insurance policy and a dismissal of the complaint, and the plaintiffs moved for a remand to the State Supreme Court. The District Court for the Southern District of New York denied plaintiffs' motion to remand, and also denied defendants' motions to vacate the order of attachment and to dismiss the complaint.
An immediate appeal was granted of the interlocutory order, pursuant to 28 U.S.C. Section 1292, wherein defendants again contested the validity of the attachment proceeding. Upon notice of appeal to the Second Circuit plaintiffs, apparently because of the proximity of the expiration of the Pennsylvania Statute of Limitations which is two years in a tort action (12 P.S. Section 31), filed a pro se action in the District Court for the Middle District of Pennsylvania on July 15, 1969, as a protective suit in the event the Second Circuit would vacate the attachment.
The Second Circuit refused to entertain an appeal of the District Court's decision upholding the validity of the attachment procedure for the reason that that court had decided the exact issue in Minichiello v. Rosenberg, 410 F.2d 106 (2d Cir. 1968).
Subsequently, the defendants filed a motion, pursuant to 28 U.S.C. Section 1404(a), seeking a transference of the within matter to the United States District Court for the Middle District of Pennsylvania, and the District Court for the Southern District of New York granted defendants' motion. See: Ryer v. Harrisburg Kohl Brothers, Inc., 307 F. Supp. 276 (S.D.N.Y. 1969).
The court will initially address its attention to defendants' motion to dismiss.
Defendants contend "that in the interest of justice, to avoid a possible multiplicity of actions and to most expeditiously litigate the issues, the action commenced in this district (the pro se action) should be continued and the transferred action dismissed."
The multiplicity claim is founded on the defendants' well-reasoned premise that since the New York action is a quasi in rem proceeding, the recovery is limited to the extent of the policy limitations of the attached res, subject to the jurisdiction of the court, Freeman v. Alderson, 119 U.S. 185, 7 S. Ct. 165, 30 L. Ed. 372 (1886), so long as the defendants do not submit to in-persona jurisdiction. If, assuming a verdict and judgment would be rendered in plaintiffs' favor and that judgment exceeds the monetary limitations of the res (the subject of the in rem proceeding), a de novo action would be required in order to recover any excess. The plaintiffs would be precluded from execution on the unsatisfied judgment derived from an in rem proceeding since the defendants would not have been personally subject to the jurisdiction of the court. Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565 (1877). The extent of the in rem jurisdiction of the court is limited to a determination of the respective interests in the res which is the subject matter of the litigation, and in a quasi in rem proceeding the underlying theory upon which the claimant asserts his interests.
Necessarily, plaintiffs must re-litigate the issues in a jurisdiction wherein they might obtain personal jurisdiction over the defendants regardless of whether or not the latter court would afford comity to the prior court's determination on the factual merits. At this juncture defendants' premises falter. Any averred potential suits seeking recovery on a judgment in excess of the quasi in rem res are, or would be, barred by the Pennsylvania two-year Statute of Limitations.
Although the plaintiffs have offered a stipulation to limit recovery to the attached insurance policy, the plaintiffs on their own motion have voluntarily precluded themselves from seeking any additional recovery arising from the "automobile collision" by moving for a voluntary dismissal of their pro se action filed in the Middle District, which the court has this day granted.
Defendants further contend that in the interest of justice and to most expeditiously litigate the issues, the transferred action should be dismissed because of the complex conflicts of law questions which may arise and that by permitting the transferred action to continue the court would be effectuating a remedy which is repugnant to the policy of Pennsylvania and not afforded to its own citizens. The underlying motivations upon which defendants' motion is based are that under New York law, if New York law is applicable in the transferred action, defendants are prohibited from impleading a joint tortfeasor (in this case the husband-driver Alfred Ryer), Brown v. Cranston, 132 F.2d 631 (2d Cir. 1942), and are permitted to bring into the case the fact that defendants are insured contrary to Pennsylvania's policy against disclosure to a jury of a defendant's insurance coverage. Kiernan v. Van Schaik, 347 F.2d 775 (3d Cir. 1965).