permitting the removal of the garnishment proceeding that arose in this case after the state had entered a judgment for plaintiff. The following sets forth the court's reasons for so ordering.
On December 10, 1978, James E. Graef was driving an automobile northbound on I-95 with his wife, Kathleen Graef, as a passenger. The automobile crashed into the truck of Joel Vernon Fox which was parked along the side of the highway. As a result, James Graef was killed and Kathleen Graef was seriously injured. On November 21, 1979, Kathleen Graef brought an action against Robert Graef, administrator of the estate of James Graef, in the Philadelphia Court of Common Pleas.
Robert Graef's legal representation was provided by Nationwide Mutual Insurance Co. ("Nationwide"), since Nationwide had provided $1,500,000 in automobile insurance coverage to James Graef.
In October, 1983, a trial was held in state court, and a jury found that James Graef's negligence was the proximate cause of Kathleen Graef's injuries. Damages were given to plaintiff in the amount of $3,725,161. An appeal was then taken, alleging that certain evidence had been improperly admitted. However, no supersedeas appeal bond had been filed in accordance with Pennsylvania Rule of Appellate Procedure § 1731, et seq. For this reason, plaintiff was able to bring a garnishment proceeding against Nationwide in state court. Nationwide, in timely fashion, removed the garnishment proceeding to federal court based on diversity of citizenship and an amount in controversy in excess of $10,000.00. Plaintiff alleges that Nationwide is liable for the entire amount of the verdict, despite the $1,500,000 policy limit. Apparently plaintiff is alleging that Nationwide acted in bad faith by not settling this case before trial.
Nationwide does not dispute the fact that it will be liable for the entire $1,500,000 if it loses its appeal before the Supreme Court of Pennsylvania, but denies any liability beyond this amount.
The controlling statute in determining whether an action is removable to federal court is 28 U.S.C. § 1441, which states:
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.