Collord v. Reconstruction Finance Corp., Civ. No. 8871.

• Decision Date: 25 March 1952
• Docket Number: Civ. No. 8871.
• Citation: 103 F. Supp. 794
• Parties: COLLORD v. RECONSTRUCTION FINANCE CORP.
• Court: U.S. District Court — Eastern District of Pennsylvania

103 F. Supp. 794

COLLORD v. RECONSTRUCTION FINANCE CORP.

Civ. No. 8871.

United States District Court W. D. Pennsylvania.

March 25, 1952.

Lester K. Wolf, Pittsburgh, Pa., Earl Whittier Shinn, and Shinn, Grimes, Harlan, Strong & Carson, all of Washington, D. C., for plaintiff.

Harold W. Sheehan, Washington, D. C., Richard K. Bloch, Cleveland, Ohio, and Louis F. Adelman, Pittsburgh, Pa., for defendant.

STEWART, District Judge.

Plaintiff brought this action under the Contract Settlement Act of 1944, 41 U.S. C. § 101, seeking to recover the sum of $26,962.75, allegedly fair compensation due from the Government on a war contract. Prior to filing an answer, defendant filed a motion to dismiss the complaint alleging various grounds therefor. Judge Marsh of this Court, pursuant to an opinion dated December 26, 1950, entered an order denying the motion to dismiss. 94 F.Supp. 828. Subsequently, defendant filed an answer to the complaint.

Defendant has now filed a motion for summary judgment alleging the same grounds in support thereof as were alleged in the motion to dismiss. In addition, two affidavits in support of the motion for summary judgment have been filed by the defendant. All of the grounds alleged in the motion for summary judgment were decided adversely to the defendant by Judge Marsh in his decision denying the motion to dismiss.

We recognize that the tests on a motion to dismiss and on a motion for summary judgment are different. The test on a motion to dismiss is whether the complaint states a claim upon which relief can be granted, Shapiro v. Royal Indemnity Company, D.C.W.D.Pa.1951, 100 F.Supp. 801, whereas the test on a motion for summary judgment is whether "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law". Rule 56(c), Federal Rules of Civil Procedure, 28 U.S.C.; Toebelman v. Missouri-Kansas Pipe Line Co., 3 Cir., 1942, 130 F.2d 1016; United States v. Costa, D.C.W.D.Pa.1951, 11 F.R.D. 492; Michel v. Meier, D.C.W. D.Pa.1948, 8 F.R.D. 464. All doubts are resolved against the moving party. Sarnoff v. Ciaglia, 3 Cir., 1947, 165 F.2d 167; United States v. Costa, supra. However, this difference neither authorizes nor requires a re-examination of Judge Marsh's decision.

The only matter argued by counsel in support of the motion for summary judgment is that relating to the alleged default of plaintiff. Judge Marsh had this same contention, as well as all the others, before him on the motion to dismiss, and treated it as follows, 94 F.Supp. at page 830:

"The defendant contends that the plaintiff's contract was terminated or cancelled by the Metals Reserve Company because the plaintiff was in default, and by virtue of Section 3 of the Act, a termination of a war contract because of the default of the contractor is not a termination within the meaning of Section 6 of the Act; therefore, plaintiff is not entitled to the benefits of said Act.

"Section 3(d) of the Act provides: `The terms "termination", "terminate", and "terminated" refer to the termination or cancelation, in whole or in part, of work under a prime contract for the convenience or at the option of the Government (except for default of the prime contractor) * * *.'

"The...