Cassarello v. United States

• Decision Date: 01 January 1919
• Docket Number: 1137.
• Parties: CASSARELLO v. UNITED STATES.
• Court: U.S. District Court — Middle District of Pennsylvania

265 F. 326

CASSARELLO v. UNITED STATES.

No. 1137.

United States District Court, M.D. Pennsylvania.

December Term, 1919

A. A Vosburg, of Scranton, Pa., for plaintiff.

R. L Burnett, U.S. Atty., of Scranton, Pa.

WITMER District Judge.

The plaintiff brought an action against the defendant, the United States of America, to recover upon certificate No. 1753749 issued by the Bureau of War Risk Insurance of the Treasury Department, for the benefit of the brother of the insured one Patrick Cilletto, otherwise known as Patrick Chilant.

The suit was instituted in accordance with the procedure and practice established in Pennsylvania. On plaintiff's request a summons was issued, requiring the defendant to appear, followed by the filing of plaintiff's statement, with notice. The United States attorney, on whom service was attempted, appeared specially, and presented his petition on behalf of defendant, the United States, representing that plaintiff's action was brought and summons therein issued and served without legal authority, obtaining a rule on plaintiff to show cause why the summons should not be quashed.

Plaintiff points to the act of Congress approved October 6, 1917 (40 Stat.pt. 1, p. 410), as authority for instituting this suit. Though article 4 of this act was subsequently amended by striking out section 405, which authorized an action in the event of failure to compromise, however, by the amending act of May 20, 1918 (40 Stat.pt. 1, p. 556; U.S. Comp. Stat. 1918, Comp. St. Ann. Supp. 1919, Sec. 514kk), the same proviso regarding this authority, together with the forum for instituting suit, was recognized in the proviso:

'No claim agent or attorney shall be recognized in the presentation or adjudication of claims under articles 2, 3, and 4, except that in the event of disagreement as to a claim under the contract of insurance between the bureau and any beneficiary or beneficiaries thereunder an action on the claim may be brought against the United States in the District Court of the United States in and for the district in which such beneficiaries or any one of them resides.'

Continuing the section limits and fixes the amount of attorney's fee, with the manner and means of its payment, providing, also, certain penalties for violation of its provisions. While authorizing the bringing of an action against the United States to recover upon a claim under the contract of insurance in the District Court of the habitat of the claimant, the act is absolutely silent as to how such suit shall be instituted and conducted. It is therefore reasonable to suppose that the lawmakers, having in mind the provisions relating to the bringing of suits against the government of the United States as set forth in Act March 3, 1887, c. 359, Secs. 5, 6, 24 Stat. 505 (U.S. Comp. Stat. Secs. 1575, 1576), known as the Tucker Act, intended that the same should be controlling in the proceedings which they authorized. After conferring upon the Court of Claims jurisdiction to hear and determine 'all claims founded upon the Constitution of the United States or any law of Congress, except for pensions, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable' (Comp. St. Sec. 1136(1)), the act proceeds to confer concurrent jurisdiction with the Court of Claims, within certain limitations,...