by Commonwealth to one Ledbetter covering Ledbetter's truck. The truck caught fire on April 30, 1982 and was totally destroyed. Commonwealth failed to pay on its policy.
Hutchinson sued Commonwealth in Alabama court, obtaining a judgment for $1,650 plus $34.55 in court costs. Hutchinson Financial Corp. v. Commonwealth Marine & General Assurance Corp., Ltd., No. DV-83-053 (Ala.D.Ct., Calhoun County, March 23, 1983). Hutchinson made a claim on the Fund through Fidelity on May 11, 1983 by sending Fidelity a copy of the docket in the Alabama action. The notice sent Fidelity said nothing concerning the appeal period. Hutchinson's Statement of Claim in this interpleader action, however, contained such an affidavit from the Alabama clerk of court. Hutchinson filed its Statement of Claim on July 19.
(11) NEB, Ltd. ("NEB")
NEB purchased fire insurance for its restaurant from Commonwealth. In April, 1982, NEB suffered a fire loss at its business which Commonwealth did not pay. NEB sued in Hawaii court and obtained a default judgment for a total of $201,897.28 plus post-judgment interest at a rate of ten percent per annum. NEB, Ltd. v. Commonwealth Marine & General Assurance Co., Ltd., Civil No. 74196 (Haw.Circuit Ct., 1st Cir., May 16, 1983). NEB gave Fidelity notice of this judgment, thereby making a claim against the Fund, on June 10. The appeal period ran on June 11.
(12) Anne and Art Johnston d/b/a Treasure Harbor Sailing Yachts ("The Johnstons")
The Johnstons obtained a judgment against Commonwealth for $34,000 in a Florida proceeding. Johnston v. Welch, No. 81-9212 (Fla.Circuit Ct., 11th Cir., April 13, 1983). Although the caption in that case indicates that the matter involved an insurance policy -- one of the defendants, subsequently dismissed, is an insurance agency -- the record before me on summary judgment does not reflect this fact.
The Johnstons filed their Florida judgment in the Court of Common Pleas. Johnston v. Commonwealth Marine and General Assurance Co., Ltd., No. 585, June Term (Pa.C.P., Phila. County, June 8, 1983). That judgment named Fidelity Bank as a garnishee. Fidelity received notice of that judgment on June 17. The Johnstons did not obtain a writ of execution against Fidelity.
(13) Reid, Inc. ("Reid")
Reid sold a truck to one Taylor. International Harvester Credit Corporation financed the truck. Commonwealth issued an insurance policy on the truck naming International Harvester Credit as the loss payee. Reid remained contingently liable to International Harvester Credit on the truck. An accident destroyed the truck. Taylor defaulted on the debt. Commonwealth did not pay on its policy.
Reid and International Harvester Credit sued Taylor and Commonwealth in Georgia court. On July 5, 1983, Reid and International Harvester Credit took a default judgment against Commonwealth. Reid v. Taylor, Civil Action No. 83-S-261 (Ga.Super.Ct., Coffee County, July 5, 1983). With its Statement of Claim, Reid has filed the certificate of the clerk of the Superior Court of Coffee County that, as of August 18, no appeal had been filed. Reid avers that the appeal period has run. International Harvester Credit has assigned all of its rights in the Georgia judgment to Reid. Reid, then, claims under the Trust Agreement by virtue of the notice given in its Motion to Intervene and Statement of Claim filed August 29.
As will become clear below, the chronological sequence in which events occurred will determine the rights of the parties in this matter. Four events -- in addition to those described in the previous subsection of this Opinion and tabulated in the next paragraph -- have possible relevance. First, on February 22, 1983, Fidelity gave notice of its intention to resign as trustee of Commonwealth's trust. Second, on April 23, 1983, this notice took effect and Fidelity resigned. Third, on April 29, Fidelity commenced this action and paid the interpleaded fund into court. Fourth, on May 19 I entered an Order pursuant to 28 U.S.C. § 2361 which restrained and enjoined all claimants in this action from "instituting or prosecuting or carrying forward in any manner, any suit or action in any court, state or federal, against plaintiff relating to the disposition of the interpleader fund now within the jurisdiction of the court, except as a claimant in this action."
With respect to each claim, six events have particular importance. First, obtaining a judgment against Commonwealth. For those proceeding under the Pennsylvania rules: second, entering the judgment in Pennsylvania court and, third, serving a writ of execution upon a garnishee. For those claimants proceeding under the Trust Agreement, the fourth, fifth and sixth events correspond to satisfying the three requirements of the Trust Agreement beyond obtaining a judgment: making a claim on the Fund, proving the judgment's "finality" (no appeal has been taken), and waiting thirty days. The following table illustrates the times of these six events for each claimant.
Entered Writ Claim Finality 30 Days
Date Judgment In Pa. Served Made Certified Expired
5/28/82 Mamiye Mamiye
2/23/83 FIDELITY NOTICE OF RESIGNATION AS TRUSTEE
2/25/83 Lynch Lynch
3/15/83 Horizon Jackson
3/16/83 Horizon Horizon
4/ 4/83 Pak-Mor Brown #1
4/ 6/83 Horizon
4/ 8/83 Fountain Fountain Jackson
4/18/83 Pak-Mor Horizon
4/19/83 Townson Pak-Mor
4/23/83 FIDELITY RESIGNS Townson
4/27/83 Brown #2 Lynch
4/29/83 COMPLAINT FILED AND FUND PAID INTO COURT
5/11/83 Hutchinson Pak-Mor
5/19/83 CLAIMANTS' ACTIONS IN OTHER COURTS STAYED
6/ 8/83 Johnston
6/10/83 NEB NEB Pak-Mor
7/ 5/83 Reid
8/29/83 Reid Reid
9/ 7/83 Phillips
9/ 9/83 Phillips
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