Opinion
March 28, 1974.
December 11, 1974.
Practice — Garnishment — Attachment execution — Attaching creditor claims through debtor — Garnishee not owing money to judgment debtor or having money or property in its possession belonging to judgment debtor — Third party beneficiaries — Summary judgment properly entered for garnishee.
1. In this case, a judgment was entered against the defendant in a trespass action. The defendant brought a separate action against the insurance company which had issued a policy to his stepfather with whom he resided. A summary judgment was entered in favor of the insurance company. The plaintiffs then served the insurance company as garnishee in the original lawsuit. It was Held that the court below properly entered summary judgment in favor of the garnishee in the original action.
2. In the absence of a statute or a policy provision on which such a right may be predicated, a person may not maintain a suit directly against the insurer to recover on a judgment rendered against the insured.
3. Where a party serves an insurance company as a garnishee and does not sue it as the insurer, the position he has chosen is that of an attaching creditor and not a third party beneficiary, and the law of garnishment applies.
4. The principle at the base of an attachment execution is that the garnishee owes money to the judgment debtor, or has in his possession money or property, belonging to the latter, which he (the judgment debtor) has a legal right to require the garnishee to pay him, except for the attachment.
5. If the garnishee owes the judgment debtor nothing or has in his possession no money or property belonging to the latter, the attachment falls.
6. An attaching creditor necessarily claims through his debtor, and in the absence of fraud, can claim no greater right than was vested in the latter at the time the writ was served on the garnishee.
7. It was Held in this case that, when the insurance company was served as garnishee, it owed the defendant in the original action nothing.
Argued March 28, 1974.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 1914, Oct. T., 1973, from order of Court of Common Pleas of Lycoming County, Nov. T., 1966, No. 620, in case of Darlene E. Folmar, Administratrix of the Estate of Robert Lee Folmar, Deceased, and Elsie J. Nittinger, Administratrix of the Estate of Raymond L. Nittinger, Jr., Deceased, v. Aaron D. Shaffer, Jr., and Hartford Accident Indemnity Company. Order affirmed.
Attachment execution.
Order entered granting motion by garnishee for summary judgment, opinion by GREEVY, P.J. Plaintiffs appealed.
Ambrose R. Campana, with him Campana Campana, for appellants.
Arthur Silverblatt, for appellees.
On September 2, 1966, Aaron Shaffer, Jr., was the driver of an automobile that was involved in a collision in which appellants' decedents were killed. Appellants sued Shaffer, who in turn joined a Richard Alexander. On May 28, 1968, a jury returned a verdict against Shaffer and in favor of appellants in the amount of $23,125.00; Alexander was held not liable. Judgment was entered on this verdict on August 13, 1968.
In the meantime, on July 11, 1968, Shaffer brought a separate suit against appellee, claiming that he was covered by a policy issued by appellee to one William H. Liddic, who is Shaffer's stepfather. Shaffer resided with Liddic at the time of the accident. Appellee moved for a summary judgment on the ground that its policy did not cover Shaffer's accident because the automobile he was driving was owned by Liddic. On October 27, 1970, the motion was granted.
Since this lawsuit was separate from the action that resulted in this appeal, it has been necessary to garner the facts contained in this paragraph from allegations and admissions made in documents of record here.
On July 7, 1972, appellee was served as garnishee in the original lawsuit. Appellee resisted the garnishment, contending that any claim Shaffer had had against it had been extinguished by the order of October 27, 1970, and thus there was nothing to attach. On September 19, 1973, on appellee's motion, President Judge GREEVY ordered that summary judgment be entered in appellee's favor, accompanying his order with a careful opinion. This appeal followed.
Appellants claim that they are entitled to sue as third party beneficiaries of the insurance contract. The law is settled that "in the absence of a statute or a policy provision on which such right may be predicated, a person may not maintain a suit directly against the insurer to recover on a judgment rendered against the insured. Ferguson v. Manufacturers' Casualty Insurance Co. of Philadelphia, 129 Pa. Super. 276, 195 A. 661 (1937)." Philadelphia Forrest Hills Corp. v. Bituminous Casualty Corp., 208 Pa. Super. 461, 463, 222 A.2d 493, 494 (1966). As indicated in this statement, suit may be maintained if there is an appropriate provision in the policy. Id. This does not however help appellants. They have not sued appellee as the insurer; they have only served it as garnishee. The position they have chosen is that of attaching creditors, not third party beneficiaries. Thus regardless of the wording of the policy, the law of garnishment applies.
Appellants claim that even under the law of garnishment they must prevail. This claim is also without merit. "The principle at the base of an attachment execution is that the garnishee owes money to the judgment debtor, or has in his possession money or property, belonging to the latter, which he (the judgment debtor) has a legal right to require the garnishee to pay him, except for the attachment. See Meyer v. Pianti, 109 Pa. Super. 313 [, 167 A. 374 (1933)]. If the garnishee owes the judgment debtor nothing or has in his possession no money or property belonging to the latter, the attachment falls: Austin-Nichols Co. v. Union Trust Co., 289 Pa. 341, 346, 137 A. 461 [(1927)]." Fisher v. McFarland, 110 Pa. Super. 184, 186-187, 167 A. 377, 378 (1933). Stated differently "an attaching creditor necessarily claims through his debtor, and in the absence of fraud, can claim no greater right than was vested in the latter at the time the writ was served on the garnishee [citations omitted]." LaBarre v. Doney, 53 Pa. Super. 435, 438 (1913). Accord, Collins v. O'Donnell, 325 Pa. 366, 191 A. 22 (1937); Mignatti v. General Mortgage Financing Corp., 325 Pa. 113, 189 A. 296 (1937). When appellee was served as garnishee it owed Shaffer nothing. It had owed him nothing since October 27, 1970, when summary judgment was entered in its favor against Shaffer. Moreover, any further action by Shaffer being barred under the doctrine of res judicata, it would never owe him anything for the accident with which we are concerned. Accordingly, there was nothing in appellee's possession to which Shaffer had a claim, and thus nothing for appellants to attach.
Appellants also argue that their pleading merely has an erroneous caption and is therefore saved by Pa.R.C.P. 1018(f), 12 P.S. This section was added in 1969 to insure easy amendment in cases of errors in captioning or docketing as a result of the changes in the structure of the courts of common pleas made by a 1968 amendment to the Pennsylvania Constitution. Pa. Const. art. 5, § 5, as amended April 23, 1968. It was not intended to save pleadings that are substantively inadequate.
The order is affirmed.