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FIDELITY BANK v. COMMONWEALTH MARINE & GEN. ASSUR.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


February 24, 1984

The FIDELITY BANK
v.
COMMONWEALTH MARINE AND GENERAL ASSURANCE COMPANY, LTD, J.E. Mamiye & Sons, Inc., Maurice L. Jackson, Floyd Fountain and Farmers State Bank of Center, Texas, George K. Lynch, Horizon Medical Administrators, Inc., G. A. Brown, Pak-Mor Manufacturing Company, Delan Townson and First Alabama Bank of Conecuh County, Phillips & Sons, Inc., Hutchinson Financial Corporation of Alabama, Neb, Ltd., Anne and Art Johnston d/b/a Treasure Harbor Sailing Yachts, and Reid, Inc.

The opinion of the court was delivered by: POLLAK

LOUIS H. POLLAK, District Judge.

  I. INTRODUCTION

 Commonwealth Marine and General Assurance Company, Ltd. ("Commonwealth") is an insurance company incorporated in Belize, Central America. Commonwealth sold insurance policies in the United States for some period prior to the commencement of this action. As security for its customers in the United States, Commonwealth established a Trust Fund on deposit with plaintiff, The Fidelity Bank ("Fidelity"), by a Trust Agreement entered into on January 19, 1979 and attached to this Opinion as an appendix. Commonwealth initially deposited approximately five hundred thousand dollars ($500,000) in the Trust Fund.

 At some point prior to the commencement of this action, Commonwealth ceased paying on some or all of its insurance policies. Several of Commonwealth's creditors sought to perfect claims to the Trust Fund either under the Trust Agreement's terms or through Pennsylvania's attachment process. On April 29, 1983, Fidelity filed a complaint in interpleader initiating this action. Fidelity paid into this court's registry a sum of $440,891.61. On May 23 I ordered that the clerk place this fund into thirteen-week Treasury Bills and other interest-bearing accounts; the fund therefore now exceeds the initial $441,000. *fn1"

 In addition to Commonwealth, Fidelity listed eleven claimants to the money paid into court in the initial complaint. On June 28, I gave Fidelity leave to amend its complaint to add four additional claimants. These fifteen claimants, however, only assert twelve separate claims on the funds in court. In addition to these twelve claims, a further claimant, Reid, Inc., moved to intervene on August 29. The court thus has before it thirteen claims upon the interpleaded fund. The court has received correspondence (all filed of record) suggesting that outside the contours of this litigation there are a number of other disappointed Commonwealth customers.

 All of the claimants have filed statements of claim with this court. In lieu of having each claimant file an answer to all the others' statements of claim, on August 1 I ordered the parties to file motions for summary judgment, if they so desired, by August 29. Eight of the twelve claimants and Reid, Inc., moved for summary judgment by August 29. Two claimants, NEB, Ltd. and Hutchison Financial Corp. of Alabama, missed the August 29 deadline, but moved for summary judgment in any event. George K. Lynch, Floyd Fountain and The Farmers State Bank of Center, Texas have neither moved for summary judgment nor responded to the other parties' motions.

 In addition to its response to the other motions for summary judgment, claimant G. A. Brown moved to strike the pleadings and affidavits of several parties on a variety of grounds.

 On December 2, I heard oral argument on the pending motions: Reid, Inc.'s motion to intervene, Brown's motions to strike, and the motions for summary judgment. At the argument I granted Reid's motion to intervene and denied Brown's motions to strike. I did add, however, that with regard to those parties whose pleadings Brown had moved to strike for lack of compliance with Local Rule 13, I would strike no pleadings or affidavits, but I would require all counsel other than William Cattie, Esq., a member of this court's bar from Wilmington, to associate themselves with local counsel so as to comply with Rule 13. *fn2"

 Two issues arose at oral argument. First, Pak-Mor Manufacturing Company attacked the validity of J.E. Mamiye & Sons, Inc.'s New York judgment against Commonwealth. Pak-Mor has moved to intervene in the New York proceedings. I asked counsel for Pak-Mor to keep me abreast of developments in the New York suit. Second, some claimants have requested the court to award post-judgment interest out of the interpleaded fund. I asked counsel for further briefing on the propriety of such an award. Counsel have responded to both my requests. As part of its response, Pak-Mor has requested leave to submit an affidavit of Joseph Reiter, Esq., which I now grant. The motions for summary judgment are ripe for disposition, as the parties dispute few material facts. Where unresolved fact issues have appeared, I note them below.

 II. FACTUAL BACKGROUND

 The claimants have attempted to perfect claims on the Trust Fund in three ways. First, some claimants have complied with the terms of the Trust Agreement. Second, some claimants have attempted to attach the assets of the Fund under the Pennsylvania procedure. Third, some claimants have merely filed a statement of claim in this suit without completely satisfying either the requirements of the Trust Agreement or the Pennsylvania rules.

 In order to explicate the disputes in this case, I first outline the procedures under the Trust Agreement and the attachment procedures under the Pennsylvania Rules of Civil Procedure which certain claimants assert apply here. I then detail the claims of each claimant and the extent to which each claimant has satisfied either set of procedures. With these factual matters in mind, I proceed to consider the legal issues involved in these motions for summary judgment.

 (A) The Trust Agreement

 The first paragraph of article II of the Trust Agreement provides that "the Trust Fund shall be exclusively available, but only as in this Agreement specifically provided, for the payment of claims under American policies" and for payment of expenses of the trustee. The second paragraph of article II defines the process by which a claimant can obtain payment from the Fund:

 

A claim against the Company under an American policy issued subsequent to the execution of this trust agreement shall be enforceable by the policy-holder against the Trust Fund when all of the following four conditions have been complied with and not otherwise.

 

(A) A judgment has been obtained by the policy-holder against the Company in any Court of competent jurisdiction within the United States of America in respect of the Company's liability under an American policy;

 

(B) Such judgment has become final in the sense that the particular litigation has been concluded either through the failure to appeal within the time permitted therefore or through the final disposition of any appeal or appeals that may be taken, the word "Appeal" being used herein to include any similar procedure for review permitted by the applicable law;

 

(C) A certified copy of the said judgment has been filed with the Trustee, together with such proof as to its finality and its conformance with the other conditions specified in this Article II as the Trustee shall require;

 

(D) A period of thirty (30) days from the date of the filing with the Trustee of the said certified copy of the said judgment and all of said proofs has expired, without such judgment having been satisfied, provided, however, that the expiration of such thirty-day period shall not be required in the event the same extends beyond the termination date of the Trust;

 

WHEREUPON the said judgment shall be forthwith satisfied by the Trustee out of the Trust Fund then in its hands, without regard to the rights of any other policyholder or policyholders, provided that the Company at its option may waive any or all of the foregoing conditions mentioned in Subdivisions (A), (B), (C), and (D) hereof and direct the Trustee in writing to pay from the Trust Fund the claim of any policyholder against the Company under an American policy without such claim having become enforceable as above defined, whereupon the said claim shall be forthwith satisfied by the Trustee out of the Trust Fund then in its hands without regard to the rights of any other policyholder or policyholders and provided further that the Trustee shall be absolutely protected in acting upon any such written direction from the Company without investigation and shall be under no obligation to see to the application of any such payment and shall not be concerned to ascertain or inquire as to the validity of such claim or the propriety of such direction.

 Under the Trust Agreement, then, only a holder of an "American policy" can ever obtain satisfaction from the Fund. Unless Commonwealth directed Fidelity otherwise, the policyholder would have to (a) obtain a judgment in the United States; (b) survive all appeals of that judgment; (c) file proof of the judgment and its finality with Fidelity; and (d) wait thirty days. As an alternative, a claimant under an American policy may obtain a direction from Commonwealth to Fidelity that Fidelity should pay the claimant without regard to the four conditions.

 The Trust Agreement defines "American policy" to mean "any contract or policy of insurance or reinsurance issued or any agreement to insure made by [Commonwealth] wherein the premiums and losses are expressed to be payable in U.S.A. currency." Trust Agreement, art. I, para. 2. The next paragraph defines "policyholders" as holders of American policies. Further, "'claim' means a claim against [Commonwealth] by a policyholder for a loss under an American policy." Id., P 4.

 (B) Pennsylvania Attachment

 Rules 3101-3149 of the Pennsylvania Rules of Civil Procedure govern enforcement of judgments for the payment of money in Pennsylvania. A judgment creditor must enter his judgment in a Pennsylvania court. See Pa.R.Civ.P. 3101(a) (Purdon 1975) (defining "judgment"). The judgment creditor may then obtain a writ of execution from the prothonotary of the county in which the judgment has been entered upon a praecipe filed by plaintiff. Pa.R.Civ.P. 3102-3104 (Purdon 1975). The prothonotary issues the writ to a sheriff who, in the case of intangible personal property, serves the writ upon a garnishee. Pa.R.Civ.P. 3108(a)(4) (Purdon Supp.1982).

 

Service of the writ upon the garnishee shall attach all property of the defendant which may be attached under these rules which is in the possession of the garnishee. It shall also attach all property of the defendant which may be attached under these rules and which comes into the garnishee's possession thereafter until judgment against him even though no such property of the defendant was in his possession at the time of service.

 Pa.R.Civ.P. 3111(b) (Purdon 1975).

 Along with the writ served by the sheriff, the plaintiff may serve interrogatories upon the garnishee requesting specific information concerning any property or transaction involving the garnishee. Pa.R.Civ.P. 3144(a) (Purdon 1975). The garnishee answers the interrogatories as if they were a complaint. Pa.R.Civ.P. 3145 (Purdon 1975). In the event of a default, the prothonotary issues a judgment against the garnishee. Pa.R.Civ.P. 3146 (Purdon Supp.1982). If the garnishee presses the matter to trial, a court may enter a judgment against the garnishee for any property of the defendant in the garnishee's hands. Pa.R.Civ.P. 3147, 3148 (Purdon 1975 and Supp.1982). The garnishee, however, need not defend the action if he gives notice to the defendant of the writ or interrogatories. Pa.R.Civ.P. 3140, 3141 (Purdon 1975).

 (C) Defendants' Claims

 Twelve defendants have filed statements of claim in this action. I describe here the nature of the claims and the steps that each defendant has taken to perfect its claim under either the Trust Agreement or the Pennsylvania Rules of Civil Procedure.

 (1) J.E. Mamiye & Sons, Inc. (" Mamiye ")

 Mamiye obtained a New York judgment upon a surety bond where Commonwealth was the surety. J.E. Mamiye & Sons, Inc. v. Commonwealth Marine & General Assurance Co., Ltd., judgment entered at Index No. 11909/82 (N.Y.Sup. Ct., N.Y. County, May 24, 1982). *fn3" Mamiye entered this judgment in the Court of Common Pleas in the amount of $177,654.45. J.E. Mamiye & Sons, Inc. v. Commonwealth Marine & General Assurance Co., Ltd., No. 6566, May Term (Pa.C.P., Phila. County, May 28, 1982). Mamiye then attempted to attach the property of Commonwealth in Fidelity's hands by writ of execution served along with interrogatories, on Fidelity on May 28, 1982. Fidelity's initial response to Mamiye's interrogatories only disclosed the existence of two Commonwealth checking accounts with a combined balance of $31,147. Commonwealth filed a bond in the amount of $31,147 to release these accounts. On June 24, 1982, Fidelity filed amended answers to Mamiye's interrogatories disclosing the existence of the Trust Fund. Mamiye has a claim to the Fund in the amount of its judgment ($177,654.45) plus 6 percent annual simple interest *fn4" from May 28, 1982 ($29.20 per day) less the $31,147 bond, or $159,831.53 as of August 29, 1983.

 Commonwealth and Pak-Mor have moved to attack the New York judgment in New York. On June 22, 1983, before Fidelity instituted this federal suit, Judge Gafni had stayed Pennsylvania proceedings on the transferred judgment until resolution of the New York challenge. More importantly, Mamiye conceded at oral argument that its judgment is not a "claim" within the meaning of the Trust Agreement because the surety bond was not an "American policy" within the Agreement's definition. Mamiye, then, asserts a right to the interpleaded fund entirely upon the efficacy of its attachment as a general judgment creditor of Commonwealth.

 (2) Horizon Medical Administrators, Inc. (" Horizon ")

 Horizon purchased a casualty insurance policy from Commonwealth covering certain premises of Horizon for the period from October 9, 1978, through October 9, 1979. Horizon suffered damage to those premises and filed a claim with Commonwealth in July, 1979. Commonwealth did not pay Horizon's claim, so Horizon brought suit in New York. Commonwealth and Horizon settled the New York litigation for a promise by Commonwealth to pay $83,000 by March 14, 1983; if Commonwealth did not pay, Horizon could confess judgment against Commonwealth on March 15. Affidavit of Confession of Judgment, Horizon Medical Administrators, Inc. v. Commonwealth Marine General Assurance Company, Ltd., Index No. 7277/81 (N.Y.Sup.Ct., County of Bronx, January 24, 1983). When Commonwealth did not pay, Horizon confessed judgment against Commonwealth on March 15 for the $83,000 plus $80 of costs.

 On March 16, Horizon filed the New York judgment in the Court of Common Pleas, filed a praecipe for a writ of execution, obtained the writ, and had the writ served on Fidelity. Docket, Horizon Medical Administrators, Inc. v. Commonwealth Marine General Assurance Co., Ltd., No. 2265, March Term (Pa.C.P., Phila. County, April 8, 1983).

 In its answers to Horizon's attachment interrogatories, Fidelity disclosed the existence of the Trust Fund. On April 6, 1983, Horizon submitted to Fidelity a certified copy of the New York judgment. Fidelity requested further proof of this judgment's finality pursuant to article II, paragraph 2(c), of the Trust Agreement. Commonwealth complied on April 18.

 Horizon, then, claims against the fund both as an attaching creditor and as a claimant under the Trust Agreement. Horizon claims $83,080 plus interest from March 15, 1983, costs and attorneys' fees.

 (3) George K. Lynch (" Lynch ")

 Lynch purchased insurance covering a truck and trailer from Commonwealth. In June, 1982, an accident caused $12,900 of damage to the truck and trailer. When Commonwealth did not pay Lynch's claim, Lynch brought suit in Texas and obtained a default judgment. Lynch v. Commonwealth Marine & General Assurance Co., Ltd., No. 83-081 (Tex.D.Ct., El Paso County, Feb. 25, 1983). On February 25, the same day as the judgment, Lynch gave notice to Fidelity and asserted a claim under the Trust Agreement. However, Lynch did not at that time provide Fidelity with a certified copy of the docket entries in the Texas action showing that Commonwealth had not appealed. Fidelity received the copy of the docket entries on March 28.

 Lynch filed a Statement of Claim in this action on June 20, 1983. The Statement of Claim for some reason only asserts a claim to $12,000, rather than the $12,900 figure in the Texas default judgment and Fidelity's initial and amended complaints. Lynch has not moved for summary judgment and he has not responded to any of the other motions for summary judgment. Thus, although Lynch claims under the Trust Agreement, his claim appears in a difficult procedural posture.

 (4) G. A. Brown (" Brown ")

 Brown also purchased an insurance policy from Commonwealth to cover a tractor and trailer which Brown used in his business. An accident damaged the truck and Brown made a claim under his policy on August 12, 1982. Commonwealth's adjuster authorized repairs to be made on the tractor and trailer, so Brown took the truck to a repair shop. Commonwealth never paid the repair bill. The repair shop kept the tractor and trailer causing Brown to lose considerable business.

 Brown sued Commonwealth in Texas on his policy. Brown obtained a default judgment for $112,066.12 in damages, $5,000 of attorneys' fees, and post-judgment interest at the rate of nine percent. Brown v. Commonwealth Marine & General Assurance Co., Ltd., No. 13,501 (Tex.D.Ct., Morris County, Mar. 15, 1983).

 On March 15, Brown made a claim against the Fund by notifying Fidelity of the Texas judgment. On April 30, Brown provided Fidelity with a certified copy of the Texas docket showing that the appeal period had run.

 Brown filed his Texas judgment in the Court of Common Pleas. Brown v. Commonwealth Marine & General Assurance Co., Ltd., No. 6651, March Term (Pa.C.P., Phila. County, March 31, 1983). Brown had a writ of execution served on Fidelity on April 4. Brown had a second writ served on Fidelity on either April 27 or April 28. *fn5"

 Brown, then, claims as both an attaching creditor and as a claimant under the Trust Agreement.

 (5) Maurice L. Jackson (" Jackson ")

 Jackson purchased an insurance policy from Commonwealth covering Jackson's Portland, Oregon, planing mill and the personal property associated with the mill. The mill sustained windstorm damage in November, 1981, and Jackson made a claim under his policy. Commonwealth did not pay Jackson's claim so Jackson sued in Oregon. The Oregon court entered a default judgment against Commonwealth for $13,906.93 of general damages, $1,251.62 of prejudgment interest, $25,000 of punitive damages, $86.50 of costs, and postjudgment interest at nine percent per annum. Jackson v. Commonwealth Marine & General Assurance Co., Ltd., No. 8208-05027 (Or. Circuit Ct., Multnomah County, Feb. 14, 1983).

 Jackson made a claim against the Trust Fund on March 15 and gave Fidelity adequate assurance that no appeal had been taken on April 8. Jackson, then, claims solely under the Trust Agreement.

 (6) Floyd Fountain ("Fountain") and Farmers State Bank of Center, Texas ("Farmers")

 Fountain owned a truck in which Farmers held a security interest. Commonwealth issued an insurance policy on the truck with Farmers as the loss payee. In June, 1982, an accident caused $12,000 of damage to the truck. Commonwealth did not pay on its insurance policy.

 Fountain and Farmers sued in Texas court and obtained a default judgment against Commonwealth for $12,000 of general damages, $4,000 of attorneys' fees, court costs, and post-judgment interest at the rate of nine percent per annum. Fountain v. Commonwealth Marine & General Assurance Co., Ltd., No. 21,065 (Tex.D.Ct., Shelby County, April 8, 1983). On April 8, Fountain and Farmers made a claim against the Fund, informing Fidelity that the appeal period would run until May 9. Neither Fountain nor Farmers gave Fidelity any further notice that Commonwealth had not appealed until they filed a Statement of Claim in this interpleader action on June 13. Fountain and Farmers claim only under the Trust Agreement.

 (7) Pak-Mor Manufacturing Company ("Pak-Mor")

 Pak-Mor purchased liability insurance from Commonwealth on which Commonwealth failed to perform. Pak-Mor sued in Texas, obtaining a default judgment for $460,749.68 and post-judgment interest at the rate of nine percent per annum. Pak-Mor Manufacturing Co. v. Commonwealth Marine & General Assurance Co., Ltd., No. 82-CI-19634A (Tex.D.Ct., Bexar County, April 4, 1983). Judge Biery's judgment in that case details Commonwealth's failures to perform.

 Pak-Mor filed its Texas judgment in the Court of Common Pleas on April 18. Pak-Mor Manufacturing Co. v. Commonwealth Marine & General Assurance Co., Ltd., No. 4139, April Term (Pa.C.P., Phila. County, April 18, 1983). On the same day Pak-Mor obtained a writ of execution and Pak-Mor had the writ served on April 19.

 On May 10 Pak-Mor made a claim under the Trust Agreement. On May 11, Fidelity submitted proof to Fidelity that Commonwealth had never appealed.

 Accordingly, Pak-Mor claims pursuant to its attachment and also under the Trust Agreement.

 (8) Delan Townson ("Townson") and First Alabama Bank of Conecuh County ("First Alabama")

 Townson owned a truck in which First Alabama held a security interest. Townson and First Alabama insured the truck with Commonwealth. On February 26, 1982, an accident caused $7,000 of damage to the truck. Commonwealth did not pay on its policy, so Townson and First Alabama sued. An Alabama court entered a default judgment against Commonwealth for $6,500 plus court costs amounting to $42.65. Townson v. Commonwealth Marine & General Assurance Co., Ltd., No. CV-83-009 (Ala.Circuit Ct., Conecuh County, April 19, 1983).

 Townson and First Alabama claimed under the Trust Agreement on April 23, 1983. However, on April 23 they could not certify that the appeal period had run on their Alabama judgment. This certification is included in their Statement of Claim filed June 13.

 (9) Phillips & Sons, Inc. ("Phillips")

 Phillips purchased automobile liability insurance from Commonwealth on which Commonwealth has not paid. Phillips instituted suit in Texas for its actual damages due to Commonwealth's failure to defend Phillips in several actions covered by the insurance policy and for treble damages under the pertinent Texas statute. After this interpleader action had begun Phillips obtained a judgment in the amount of $219,840.28 plus post-judgment interest at the rate of nine percent per annum. Phillips & Sons, Inc. v. Commonwealth Marine and General Assurance Co., Ltd., No. 83-17162 (Tex.D.Ct., Harris County, Sept. 7, 1983). Phillips had attempted to assert its claim without the judgment, but amended its motion for summary judgment to reflect the Texas court's ruling on September 9. On November 14 Phillips gave notice that Commonwealth had not appealed.

 (10) Hutchinson Financial Corporation of Alabama ("Hutchinson")

 Hutchinson was the loss payee on a fire, theft and casualty insurance policy issued 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.

 (D) Chronology

 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. ยง 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. CHRONOLOGICAL TABLE Entered Writ Claim Finality 30 Days Date Judgment In Pa. Served Made Certified Expired ?/??/82 Mamiye 5/28/82 Mamiye Mamiye 2/14/83 Jackson 2/23/83 FIDELITY NOTICE OF RESIGNATION AS TRUSTEE 2/25/83 Lynch Lynch 3/15/83 Horizon Jackson Brown Brown 3/16/83 Horizon Horizon 3/23/83 Hutchinson 3/28/83 Lynch 3/31/83 Brown 4/ 4/83 Pak-Mor Brown #1 4/ 6/83 Horizon 4/ 8/83 Fountain Fountain Jackson 4/13/83 Johnston 4/18/83 Pak-Mor Horizon 4/19/83 Townson Pak-Mor 4/20/83 Brown 4/23/83 FIDELITY RESIGNS Townson 4/27/83 Brown #2 Lynch 4/29/83 COMPLAINT FILED AND FUND PAID INTO COURT 5/8/83 Jackson 5/10/83 Pak-Mor 5/11/83 Hutchinson Pak-Mor 5/16/83 NEB 5/18/83 Horizon 5/19/83 CLAIMANTS' ACTIONS IN OTHER COURTS STAYED 5/20/83 Brown 6/ 8/83 Johnston 6/10/83 NEB NEB Pak-Mor 6/13/83 Fountain Townson 7/ 5/83 Reid 7/10/83 NEB 7/13/83 Fountain Townson 7/19/83 Hutchinson 8/18/83 Hutchinson 8/29/83 Reid Reid 9/ 7/83 Phillips 9/ 9/83 Phillips 9/28/83 Reid 11/14/83 Phillips 12/14/83 Phillips

19840224

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