INDIANA LIMESTONE COMPANY v. Branna Constr. Corp.

• Decision Date: 14 April 1966
• Docket Number: Civ. A. No. 66-290.
• Citation: 252 F. Supp. 959
• Parties: INDIANA LIMESTONE COMPANY, Inc., an Indiana corporation and City of Pittsburgh to Use of Indiana Limestone Company, Inc., an Indiana corporation, Plaintiff, v. BRANNA CONSTRUCTION CORPORATION, a Pennsylvania corporation, and United States Fidelity and Guaranty Company, a Maryland corporation, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

252 F. Supp. 959

INDIANA LIMESTONE COMPANY, Inc., an Indiana corporation and City of Pittsburgh to Use of Indiana Limestone Company, Inc., an Indiana corporation, Plaintiff, v. BRANNA CONSTRUCTION CORPORATION, a Pennsylvania corporation, and United States Fidelity and Guaranty Company, a Maryland corporation, Defendants.

Civ. A. No. 66-290.

United States District Court W. D. Pennsylvania.

April 14, 1966.

Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for plaintiff.

Markel, Markel, Levenson & Fischer, Pittsburgh, Pa., for defendants.

WEBER, District Judge.

In the above action the defendants have moved to dismiss the complaint on the ground that the amount in controversy is less than $10,000 exclusive of interest and costs. There is no dispute between the parties that the balance due for labor and materials under the fixed contract price pleaded by plaintiff with the allowance for credits to defendants shown in plaintiff's complaint is less than $10,000. It is only by the inclusion of an additional sum claimed by the plaintiff for Pennsylvania Sales and Use Tax that the plaintiff's total claim exceeds $10,000. Defendants claim that under the fixed price contract pleaded by plaintiff and the credits allowed defendants by plaintiff there is no grounds upon which plaintiff may properly make a claim for inclusion of its sales tax claim. Defendants further allege that the contract pleaded by plaintiff makes no provision for the payment of sales tax and that the sales tax statute and its administrative regulations placed the burden of the sales tax upon the subcontractor who used or consumed the materials in the prosecution of his contract, unless specifically otherwise provided by agreement between the parties. Plaintiff has not pleaded a subsequent modification of the fixed price contract but in his complaint the demand for damages supported by a statement of account attached as an exhibit lists this item as part of the total claim in excess of $10,000.

While defendants claim that under the contract pleaded, and under the applicable Pennsylvania law, there is no right shown to support a claim for inclusion of the sales tax item, nevertheless we are of the opinion that the determination of this question involves the determination of disputed questions of fact or law.

"* * * Except in the plainest cases the issue of jurisdictional amount should not be decided if the ruling constitutes at the same time a decision on the merits." Jaconski v. Avisun Corp. and

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