Karno-Smith Co. v. School Dist. of City of Scranton

• Decision Date: 14 May 1942
• Docket Number: No. 806.,806.
• Citation: 44 F. Supp. 860
• Parties: KARNO-SMITH CO. v. SCHOOL DIST. OF CITY OF SCRANTON, LACKAWANNA COUNTY.
• Court: U.S. District Court — Western District of Pennsylvania

44 F. Supp. 860

KARNO-SMITH CO. v. SCHOOL DIST. OF CITY OF SCRANTON, LACKAWANNA COUNTY.

No. 806.

District Court, M. D. Pennsylvania.

May 14, 1942.

John Memolo, of Scranton, Pa., for plaintiff.

John R. Edwards, of Scranton, Pa., for defendant.

JOHNSON, District Judge.

This action has been brought to recover from the defendant the sum of $28,915, with interest from the 15th day of September, 1937, which the complaint alleges is the balance due and owing by the defendant for labor and materials furnished under a contract for the erection of a school building known as South Scranton Junior High School. The case is before us upon defendant's motion to dismiss the action.

The first reason assigned in support of the motion is that the complaint fails to state a claim against the defendant upon which relief can be granted. An examination of the complaint discloses that it contains the essential averments for a cause of action ex contractu. Defendant's brief, as well as its motion, fails to point out wherein the pleading is defective in this respect. The motion cannot be sustained upon this ground.

As the second reason for dismissal of the action defendant states that the complaint is defective by failing to comply with the provisions of the Pennsylvania Practice Act, 1915, P.L. 483, Sec. 5, 12 P.S. Pa. ž 386, in that it avers the existence of a written contract pursuant to which the labor and materials were furnished, yet no copy of the agreement has been attached to the complaint as required by the Practice Act. If the non-attachment to the complaint of the contract upon which the suit is brought were a defect, it would be merely formal and would not justify the dismissing of the action. If the omission of the contract from the pleading rendered it so lacking in definiteness or particularity that the other party is unable properly to prepare his responsive pleading or prepare for trial, it would support a motion for a more definite statement under rule 12(e) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. However, the contract in the present case was in the possession of the defendant. In fact the defendant has attached it to his motion to dismiss.

The purpose of the Federal Rules of Civil Procedure is to supply the federal courts with an independent and uniform system of efficient procedure. Joy Mfg. Co. v. City of New York, D.C., 30 F.Supp. 403. In matters of pleading, the federal courts are governed no longer by state practice. Swift & Co. v. Young, 4 Cir., 107 F.2d 170. The provisions of the Conformity Act, 28 U.S.C.A. ž 724, have been superseded and are no longer of any force or effect. Carnegie Nat. Bank v. City of Wolf Point et al., 9 Cir., 110 F.2d 569; In re Utility Consumers Service, Inc., D.C., 38 F.Supp. 102; De Rosmo v. Feeney, D.C., 38 F.Supp. 834; Warren v. Indian Refining Co., D.C., 30 F.Supp. 281. Therefore, the requirement of the Pennsylvania Practice Act for the attachment to the pleadings of contracts upon which suit is instituted in no way controls procedure in actions in this court from and after the effective date of the Federal Rules of Civil Procedure.

The third and fourth grounds upon which defendant relies for dismissal of this action relate to the arbitration clause in the contract upon which this suit has been brought, and may be treated together. It is contended that the existence of this arbitration agreement is a reason for dismissing the action, per se, and that it should also be dismissed because there is no averment in the complaint of plaintiff's compliance with this agreement. It should be noted preliminarily that the procedure provided in both the Pennsylvania Arbitration Act, 1927 P.L. 381, 5 P.S. ž 1 et seq. and the United States Arbitration Act, 9 U.S.C.A. ž 1 et seq. in cases where suits are instituted upon matters referable to arbitration under a written and enforceable arbitration agreement, is an application for a stay of the trial of the action until the arbitration has been had in accordance with the terms of the agreement. 5 P.S. ž 162; 9 U.S.C.A. ž 3. Neither the state nor the federal statute provides for dismissal of the actions commenced in violation of such arbitration agreements. It should similarly be noted that rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c, requires certain defenses to be set forth affirmatively. Among these defenses which must be affirmatively pleaded are arbitration and award, and res judicata, the latter being another reason argued in support of the motion to dismiss considered in a subsequent part of this opinion. Thus, both of these grounds are not properly before the court on defendant's motion to dismiss. In the interest of expediency, the facts being before the court by exhibits attached to the motion to dismiss and the briefs, these questions will be disposed of so far as possible at this time.

Article 13 of the contract is worded in part as follows: "It is hereby mutually covenanted and agreed that in the event any dispute or disagreement shall arise under any of the clauses of...