                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-10-2005

Witco Corp v. Herzog Bros Trkng
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2252




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NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  Case No: 02-2252

                              WITCO CORPORATION,
                                    Appellant

                                           v.

                      HERZOG BROTHERS TRUCKING, INC.,

                                           v.

                              NATIONAL CITY BANK,
                                    Garnishee


                    On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                        District Court No.: Misc. No. 96-75 Erie
                   District Judge: The Honorable Sean J. McLaughlin


                               Argued January 10, 2003


          Before: SCIRICA, Chief Judge, BARRY and SMITH, Circuit Judges

                                 (Filed: June 10, 2005)

David V. Weicht (argued)
Leech, Tishman, Fuscaldo & Lampl
525 William Penn Place
30 th Floor, Citizens Bank Building
Pittsburgh, PA 15219
        Counsel for Appellant
C. James Zeszutek (argued)
Jeff D. Aronsohn, Jr.
Thorp Reed & Armstrong, LLP
One Oxford Centre
301 Grant St., 14th Fl.
Pittsburgh, PA 15219-1425
       Counsel for Appellee-Garnishee


                                        OPINION


SMITH, Circuit Judge.

      The salient facts of this appeal are uncontested and well-known to the parties, and

will not be recounted here. This dispute came before this Court on January 10, 2003, on

appeal from an Order of the United States District Court for the Western District of

Pennsylvania. The District Court granted summary judgment for the defendant-

garnishee National City Bank on the ground that the garnishee never received

“possession” of certain funds of the debtor, Herzog Brothers Trucking, Inc., as that word

is defined under Pennsylvania garnishment law, that the plaintiff-garnishor Witco

Corporation could attach. Having read the briefs and submissions of the parties and

having heard oral argument, the panel concluded that the appeal raised serious and

unanswered questions concerning the proper interpretation of the Pennsylvania Rules of

Civil Procedure, Pa.R.Civ.P. 3101, Pa.R.Civ.P. 3111, and Pennsylvania public policy

toward garnishment.

      On February 3, 2003, we petitioned the Pennsylvania Supreme Court for


                                            2
certification of three questions of Pennsylvania law which govern the appeal. The

Pennsylvania Supreme Court granted our petition on January 6, 2004 and issued its

decision on December 21, 2004. Witco Corp. v. Herzog Brothers Trucking, Inc., 863

A.2d 443 (Pa. 2004); see id. at 444 (stating the three questions raised in the petition and

answered in the opinion).

       The Pennsylvania Supreme Court concluded:

              (1) that National City Bank “was in possession of the checks
              and cash once Herzog turned them over to the Bank’s tellers,
              for the purposes of Rule 3101(b), notwithstanding that
              Herzog did not formally deposit the funds into Herzog
              Brothers’ account with the Bank,” id. at 446-47;

              (2) that this “possession obligated the Bank to hold the funds
              for Witco in accordance with Rule 3111(c),” id. at 449; and

              (3) that “the public policy of Pennsylvania prohibits a
              garnishee bank with notice of a judgment order from
              engaging in transactions with the judgment debtor that it
              knows or should know will facilitate the judgment debtor in
              attempts to avoid the lawful garnishment of its assets.” Id. at
              451.

       Each of the Pennsylvania Supreme Court’s conclusions is contrary to the position

of National City Bank, and is in favor of that of Witco. Therefore, we will vacate the

judgment of the District Court, and will remand this case for further proceedings to be

conducted in accordance with the decision of the Pennsylvania Supreme Court.




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