Kohlman v. Smith
Citation | 71 F. Supp. 73 |
Decision Date | 18 March 1947 |
Docket Number | Civ. No. 4586. |
Parties | KOHLMAN v. SMITH. |
Court | U.S. District Court — Western District of Pennsylvania |
Samuel Avins, of Pittsburgh, Pa., for plaintiff.
Irwin A. Swiss, Asst. U. S. Atty., of Pittsburgh, Pa., for defendant.
This is an action, which was brought by Plaintiff against S. A. Bodkin, Postmaster of the City of Pittsburgh. By amendment, agreed to by the parties March 3, 1947, James C. Smith, Postmaster of the City of Pittsburgh, is now substituted as the party defendant.
Plaintiff in his amended complaint avers that at all times material, he was a permanent employee of the Post Office Department of the United States as guard or watchman; that this position is in the classified Civil Service; that he was appointed July 28, 1937 by Ralph Smith, then Postmaster of the City of Pittsburgh; that on July 15, 1943 he was removed from said office or employment by S. A. Bodkin, then Postmaster of the City of Pittsburgh. He also avers that although he had been charged with repeated failures to pay his debts, that he had been acquitted of said charges. Plaintiff made four prayers for specific relief and one prayer for general relief. Prayers for general relief are paragraphs (a), (b), (c), and (d). In these prayers, plaintiff prays that this Court enter a declaratory judgment that he has title to the office or position of guard or watchman in the Post Office Department to which he was appointed; that he was illegally removed from said office and that an order be made reinstating plaintiff to said position or office with full seniority and perquisites.
Defendant moved for judgment in his favor, that the action be dismissed. The motion was made under Rules 12(b) (6) and 56(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Defendant assigned a number of reasons in support of his motion, numbers 1 and 5 thereof being that the amended complaint fails to state a claim against defendant upon which relief can be granted and that plaintiff is barred from relief by his laches.
Plaintiff was removed from his position July 15, 1943. He brought this action July 16, 1945. Defendant filed a motion to dismiss the original complaint in this case September 13, 1945. This Court made an order which was filed November 7, 1945 granting leave to plaintiff to amend his complaint within two (2) weeks from said date. Plaintiff filed his amended complaint May 6, 1946.
In U. S. ex rel. Arant v. Lane, Secretary of the Interior, 249 U.S. 367, 39 S.Ct. 293, 294, 63 L.Ed. 650, the relator filed his application for a mandamus under the Code of the District of Columbia to compel the Secretary of the Interior to reinstate him in the office which he had held. This application was made 20 months after his removal. The pleadings consisted of petition, answer and demurrer. The relator's demurrer was overruled, on the ground of laches. The Supreme Court in an opinion by Justice Clarke stated:
"His only explanation for this delay is the allegation, which was denied, that he had made every reasonable effort to have his rights in the premises accorded him and to be restored to office, but without avail.
* * * * * *
In Caswell v. Morgenthau, Secretary of the Treasury, et al., 98 F.2d 296, 297, 69 App.D.C. 15, which was a petition to compel the relator's reinstatement as an employee of the Treasury Department and to pay his salary from the time of his discharge, etc., the United States Court of Appeals for the D. C., in a Per Curiam opinion stated:
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