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GAGLIOTI v. CUMMINGS

United States District Court, Eastern District of Pennsylvania


July 20, 1999

ANGELINE G. GAGLIOTI AND ANTHONY GAGLIOTI
v.
THOMAS J. CUMMINGS, BELLMAWR BOROUGH, ELEANOR M. BELL

The opinion of the court was delivered by: Dalzell, District Judge.

MEMORANDUM

This diversity action, involving a three-car automobile accident with drivers from three states, presents a difficult choice of law problem. The case law instructs that we must apply the state law as if we were a state court, see Erie Railroad v. Tompkins 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), Instructional Systems, Inc. v. Computer Curriculum Corp., 35 F.3d 813, 823 (3d Cir. 1994), and this includes the forum state's choice of law rules, here Pennsylvania's. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), Compagnie des Bauxites de Guinee v. Argonaut-Midwest Ins. Co., 880 F.2d 685 (3d Cir. 1989).

The facts relevant to our choice of law inquiry are not in dispute. The accident happened on April 3, 1997 in Upper Chichester Township, Delaware County, Pennsylvania. Plaintiff Angeline Gaglioti ("Gaglioti"), a domiciliary of Pennsylvania, alleges she was injured in the accident because of the negligence of defendant Thomas J. Cummings ("Cummings"), a New Jersey domiciliary, and defendant Marie Bell ("Bell"), a domiciliary of Delaware. Cummings, a firefighter for defendant Bellmawr Borough ("Bellmawr") in Camden County, New Jersey, was at the time of the accident driving a Bellmawr Fire Department vehicle and was acting in the scope of his employment to retrieve a piece of equipment for the Bellmawr Fire Department from somewhere in Pennsylvania. Bellmawr is providing Cummings with a defense and indemnification in this matter. Bellmawr is a municipal public entity funded solely by New Jersey tax dollars, derives no business in Pennsylvania, and conducts its business in New Jersey.*fn1

Defendants Cummings and Bellmawr now move to dismiss the complaint for lack of subject matter jurisdiction because they contend that when we apply Pennsylvania choice of law rules to this case, we must honor the limited sovereign immunity granted to Bellmawr and Cummings under the New Jersey Tort Claims Act, see N.J. Stat. Ann. § 59:1-1, et. seq., which would require dismissal of the complaint without prejudice to plaintiffs' right to refile the case in New Jersey. See Flamer v. New Jersey Transit Bus Operations, Inc., 414 Pa. Super. 350, 607 A.2d 260, 264-65 & n. 4 (1992).

The Pennsylvania Superior Court has twice addressed the application of the New Jersey Tort Claims Act against a Pennsylvania plaintiff. See Flamer, 414 Pa. Super. 350, 607 A.2d 260, and Laconis v. Burlington County Bridge Comm'n, 400 Pa. Super. 483, 583 A.2d 1218 (1990). At the outset, we note that a limited doctrine of sovereign immunity as embodied in the New Jersey Tort Claims Act is not repugnant to the public policy of Pennsylvania. See Flamer, 607 A.2d at 263. Accordingly, we turn to the well-established Restatement (Second)*fn2 choice of law principles applied in Laconis and Flamer to determine which state, Pennsylvania or New Jersey, has the most significant relationship to this case:

  Under principles of comity, the rights and
  liabilities of the parties with respect to a tort
  action are determined by the law of the state
  which has the most significant relationship to the
  occurrence and the parties. The following
  contacts, which are to be applied qualitatively
  rather than quantitatively under the case law,
  that are taken into account in determining which
  state law applies: the place where the injury
  occurred; the place where the conduct causing the
  injury occurred; the domicile, residence,
  nationality, place of incorporation, and place of
  business of the parties; and the place where the
  relationship between the parties is centered.
  Furthermore, in an action for personal injuries,
  the law of the state where the injury occurred
  normally determines the rights and liabilities of
  the parties, unless another state, applying the
  contacts test, has a more significant relationship
  to the occurrence and parties.

Laconis, 583 A.2d at 1222-23 (citations omitted).

In Laconis, the Superior Court applied these principles to reach the conclusion that Pennsylvania had the more significant relationship in a case where the plaintiff, a citizen of Pennsylvania, was injured by a tort that occurred in Pennsylvania and the defendant was a county bridge commission incorporated in New Jersey, but which necessarily conducted a significant portion of its business in Pennsylvania and was not funded by any New Jersey tax money. See Laconis, 583 A.2d at 1222. Based upon these facts, the Superior Court concluded that the trial court was not required to afford the defendant immunity under the New Jersey Tort Claims Act. See id.

In Flamer, another panel of the Superior Court reached the opposite conclusion in a case involving Pennsylvania plaintiffs where the tort occurred in New Jersey and the defendant was a New Jersey public entity which received a significant portion of its operating budget from New Jersey tax dollars and conducted most of its business in New Jersey. See Flamer, 607 A.2d at 264-65. In Flamer, the court concluded that New Jersey had the more significant relationship and, therefore, that the trial court properly afforded the defendant immunity under the New Jersey Tort Claims Act and properly dismissed the case. See id.

While the Gagliotis' case appears to fall between Laconis and Flamer, upon a careful review of the record we find that New Jersey has the more significant relationship.*fn3 Although the accident here occurred in Pennsylvania, and Pennsylvania has an interest in regulating the safety of its streets and highways as well as in protecting its citizens against tortious acts, we find that the principles of comity — e.g., to foster cooperation, promote harmony, and to build goodwill — support our decision to apply New Jersey law in this case. See, e.g., Lee v. Miller County of Ark., 800 F.2d 1372, 1375-79 (5th Cir. 1986) (applying a comity analysis and holding that an Arkansas county was immune from liability in Texas for an accident that occurred in Texas because failure to recognize Arkansas sovereign immunity laws could lead to a breakdown in communication between the two states and unwillingness to share equipment and personnel as part of a joint civil defense project).*fn4

The New Jersey Tort Claims Act, like its Pennsylvania counterpart, enables injured persons to sue New Jersey governmental entities for damages under limited circumstances. If we do not honor the limitations imposed under the New Jersey Tort Claims Act, and instead put a Pennsylvania citizen's interests ahead of the interests of comity, we believe that there is a risk that our sister states — six of whom border the Commonwealth — would not respect similar Pennsylvania laws.*fn5

Accordingly, because we find that New Jersey's more significant public interest trumps Pennsylvania's interests here, we will apply the New Jersey Tort Claims Act, and, therefore, dismiss this case against defendants Cummings and Bellmawr.*fn6

As our conclusion is, however, nothing more than an Erie/Klaxon guess in the absence of controlling authority from the Pennsylvania Supreme Court, we are well aware of the peril Judge Sloviter has elsewhere identified. See Dolores K. Sloviter, A Federal Judge Views Diversity Jurisdiction Through the Lens of Federalism, 78 Va. L.Rev. 1671, 1679-81 n. 53 (1992) (discussing the difficulty of making "Erie guesses" and citing specific cases where federal predictions of state supreme courts' rulings proved wrong). That peril is magnified here where two panels of the Superior Court have rendered analyses that would lead to opposite conclusions on these facts. There is, therefore, ample basis for concluding that "there is substantial ground for difference of opinion" on this point within the meaning of 28 U.S.C. § 1292(b).*fn7

We are also mindful that the Pennsylvania Supreme Court has for this year only afforded our Court of Appeals an avenue for definitive resolution of this important question of Pennsylvania public policy, and that is to certify to that tribunal important questions of Pennsylvania law like that at issue here. See Rules Regarding Certification of Questions of Law, reprinted in Pennsylvania Rules of Court 727-28 (West 1999).

We therefore certify the following question for appellate review pursuant to 28 U.S.C. § 1292(b):

  Would Pennsylvania courts afford a New Jersey
  municipality and its agent the protection of the
  New Jersey. Tort Claims Act in an action arising
  from injury to a Pennsylvania citizen at a
  Pennsylvania site?

An Order follows.

ORDER

AND NOW, this 20th day of July, 1999, upon consideration of defendants Thomas J. Cummings and Bellmawr Borough's motion to dismiss for lack of subject matter jurisdiction, and plaintiffs' response thereto, and defendants' reply thereto, and for the reasons stated in the accompanying memorandum, it is hereby ORDERED that:

1. Defendant's motion to dismiss for lack of subject matter jurisdiction is GRANTED;

2. Plaintiffs' claims against defendants Thomas J. Cummings and Bellmawr Borough are DISMISSED WITHOUT PREJUDICE;

3. We CERTIFY the following question to the United States Court of Appeals for the Third Circuit:

  Would Pennsylvania courts afford a New Jersey
  municipality and its agent the protection of the
  New Jersey Tort Claims Act in an action arising
  from injury to a Pennsylvania citizen at a
  Pennsylvania site?

4. The Clerk shall TRANSFER the remaining open portion of this case to the Civil Suspense Docket until further order of this Court.


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