and a motion by plaintiffs to dismiss the affirmative defenses and counterclaim contained in the defendants' answer. Simultaneously, plaintiffs have, in addition to the above motion, petitioned the court to voluntarily dismiss their pro se action filed in the Middle District, to which defendants object. (Ryer v. Harrisburg Kohl Brothers, Inc., No. 69-281 Civil)
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).
Though defendants' argument is appealing, the rationale of Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964) is compelling and the court must deny defendants' motion. In Van Dusen the Supreme Court considered the application of 28 U.S.C. Section 1404(a) and its effect upon a transferred action. Succinctly, the case involved numerous actions arising from an airplane crash in which various claims were filed in several district courts. The plaintiffs who had proceeded in the Pennsylvania district court were all personal representatives of the victims of the crash. Defendants moved for a transference to the United States District Court for the District of Massachusetts, pursuant to 28 U.S.C. Section 1404(a), and the district court granted the motion for transfer on the basis of convenience to the parties "regardless of whether the transferred action would be governed by the choice of law rule of either state." Popkin v. Eastern Airlines, Inc., 204 F. Supp. 426 (E.D. Pa. 1962). The plaintiffs then filed a writ of mandamus seeking a vacation and setting aside of the order of the district court transferring the action. The circuit court vacated the district court's order, Barrack v. Van Dusen, 309 F.2d 953 (3d Cir. 1962), and certiorari was granted by the Supreme Court to consider the construction and operation of Section 1404(a).
The Supreme Court considered, in addition to the interpretation of the tests or standards utilized in determining whether or not the transfer was justified, the question whether the effect of a venue change pursuant to Section 1404(a) would affect the applicable state law. Under the Massachusetts Death Act recovery is limited to the sum of $20,000 relative to the degree of culpability of the tortfeasor; whereas, under Pennsylvania law Wrongful Death actions are based on the principle of compensation for losses with no monetary limitation.
Plaintiffs argued that a transfer under Section 1404(a) might work a severe prejudice upon them if the transferee forum state applying its own choice of law rule would impose the more restrictive Massachusetts rule. The plaintiffs drew the analogy that if the transferee forum employed a shorter statute of limitations a transference might be tantamount to a dismissal under certain circumstances.
Defendants countered that plaintiffs were enabled to forum shop in order to find the most advantageous state laws. The Supreme Court regretfully agreed that forum shopping inherently is a part of our judicial system, but at the same time said there is nothing in the language or policy of Section 1404(a) to justify its usage by defendants to defeat plaintiffs substantive rights where plaintiffs have chosen a forum with proper jurisdiction even though inconvenient. Nothing in 28 U.S.C.A. justified the defendant "getting a bonus" for a change of venue. Therefore, the Supreme Court held that the law of the original transferor forum, including its conflicts rule, is applicable.
Implementing the policy of the Van Dusen decision to the matter before the court, it appears that the defendants sought removal from the State court, then sought a vacation of the attachment procedure; upon denial, the defendants then sought a transference of the action to the Middle District. And now the action, having been transferred, the defendants seek to dismiss the transferred action and proceed with a protective suit filed pro se by the plaintiffs. The "bonus" denied the defendants in Van Dusen should not inure to the benefit of the defendants by reason of plaintiffs' diligence in filing a protective suit in the Middle District, nor should that policy enunciated by the Van Dusen decision be circumvented by such a device.
The court having denied defendants' motion to dismiss the transferred action herein, will now consider plaintiffs' motion to dismiss the affirmative defenses and counterclaim.
Plaintiffs' complaint sets forth three causes of action. The first cause of action is filed on behalf of the plaintiff Lillian Ryer seeking compensatory damages for injuries alleged to have been suffered due to the negligence of the defendants. The second cause of action reiterates the allegations contained in the first cause, and seeks exemplary damages arising from wanton and gross negligence of the defendants. The third cause of action again reiterates the allegations set forth in the first cause, and is filed on behalf of the plaintiff Alfred Ryer for loss of services and medical expenses incurred by plaintiff Lillian Ryer's suffering.
Defendants essentially denied the crucial averments of plaintiffs' complaint and set forth the following affirmative defenses and counterclaim:
"AS AND FOR A FIRST AFFIRMATIVE DEFENSE TO THE COMPLAINT
" IX. the Court lacks jurisdiction over the person of the said defendants and the intervenor.