Creedon v. Bowman, Civ. A. No. 6765.

• Decision Date: 06 January 1948
• Docket Number: Civ. A. No. 6765.
• Citation: 75 F. Supp. 265
• Parties: CREEDON v. BOWMAN.
• Court: U.S. District Court — Western District of Pennsylvania

75 F. Supp. 265

CREEDON v. BOWMAN.

Civ. A. No. 6765.

District Court, W. D. Pennsylvania.

January 6, 1948.

David R. Levin, of Pittsburgh, Pa., for plaintiff.

J. Frank McAllister, of Pittsburgh, Pa., for defendant.

GOURLEY, District Judge.

This cause came before the Court for consideration on motion of the defendant for summary judgment on the pleadings. The action is one for injunctive relief brought by the Housing Expediter of the United States, and is based on certain alleged violations of the defendant in her failure to comply with orders of the Area Rent Director which related to real estate interests of which the defendant was the landlord of housing accommodations within the Pittsburgh Defense Rental Area. On December 8, 1947, the motion for judgment on the pleadings was denied, and the defendant was directed to file an answer to the complaint within twenty days from the date of said order.

The principles of law which had application to the questions raised appeared so settled that it did not seem necessary to file a written opinion at the time the motion for judgment on the pleadings was refused. It has come to the attention of the Court that the defendant on the 29th day of December, 1947 filed an appeal with the Circuit Court of Appeals for the Third Circuit from the order denying the motion for judgment on the pleadings. The Court believes that it is proper and would be material to a proper adjudication of the questions which exist for this Court to now file a written opinion in which the reasons for the order entered are set forth.

In accordance with the provisions of Rule 75 (h), of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and in order to assist the appellate court in the adjudication of the questions which have been raised, this opinion is, therefore, filed.

The Housing Expediter bases the claim for injunctive relief under the provisions of the Emergency Price Control Act of 1942, its supplements and amendments, Act of Jan. 30, 1942, c. 26, Title 1, § 1, 56 Stat. 23, as amended October 2, 1942, c. 578, § 7 (a), 56 Stat. 767, June 30, 1944, c. 325, Title 1, § 101, 58 Stat. 632, Act of July 25, 1946, c. 671, § 12 and 13, 60 Stat. 676 and 677, 50 U.S.C.A.Appendix, § 901 et seq.; and the Housing and Rent Act of 1947, Public Law No. 129, 80th Congress, 50 U.S. C.A.Appendix, § 1881 et seq., together with the Housing Rent Regulations issued thereunder. 12 F.R. 4331.

It is contended, inter alia, by the Housing Expediter: —

(a) That during the period of the Rent Control Act which became effective on July 25, 1946, the defendant demanded and received rent for the use and occupancy of the premises in excess of the amount for which an order had been made by the Area Rent Director fixing the rent at an amount less than that charged by the defendant.

(b) That during the period of the Housing and Rent Act of 1947 the defendant demanded and received rent for the use and occupancy of the premises in excess of the amount for which an order had been made by the Area Rent Director fixing the rent at an amount less than that charged by the defendant.

The Housing Expediter contends that if it is established that the defendant has failed and neglected to comply with the provisions of either the Acts of 1946 or 1947, injunctive relief should be granted and the defendant should be ordered and directed to refund to the tenants, in connection with whom overcharges were made, the amount thereof.

The defendant's motion for judgment on the pleadings sets forth, inter alia, that the pleading of the Housing Expediter fails to set forth a claim upon which relief can be granted, more particularly —

(a) That the Emergency Price Control Act of 1942, and its amendment of July 25, 1946, violates the Fifth Amendment of the Constitution;

(b) That the District Court has no jurisdiction under the provisions of the Housing Rent Act of 1947; and

(c) That the Housing Expediter has violated the provisions of the Fifth Amendment of the Constitution in that the defendant has been deprived of property without due process of law.

The defendant moved for judgment on the pleadings without filing an answer. Under the provisions of Rule 7 (a) of the Federal Rules of Civil Procedure, the pleadings are not closed until at least an answer has been filed. Moore's Federal Practice 1938, Section 12.05 Supplement, p. 278; Edelman v. Locker, D.C., 6 F.R.D. 272.

Since no answer has been filed, the motion filed by the defendant could be considered either as a motion for summary judgment or to dismiss the complaint. In either instance all facts well pleaded in the complaint must be presumed to be true. Williams v. Walnut Park Plaza, Inc., D.C., 68 F.Supp. 957.

The complaint must be viewed in a light most favorable to the plaintiff, and truth of facts well pleaded including facts alleged on information or belief are admitted. Federal Rules of Civil Procedure, Rules 8 (f), 11, 12 (b), 28 U.S.C.A. following Section 723c.

The complaint should not be dismissed unless it appears certain that the plaintiff is not entitled to relief under any state of facts which could be proved in support thereof. This is true no matter how likely it may seem that the pleader will be unable to prove his case; he is entitled, upon averring a claim, to an opportunity to try and prove it. Continental Colliers, Inc., v. Shober, Jr., 3 Cir., 130 F.2d 631, 635; Carroll et al. v. Morrison Hotel Corp. et al., 7 Cir., 149 F.2d 404.

The Emergency Price Control Extension Act of 1946, 50 U.S.C.A.Appendix, § 901 et seq., does not violate the provisions of the Fifth Amendment of the Constitution. Porter v. Shibe et al., 10 Cir., 158 F. 2d 68.

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