PITTSTON-LUZERNE CORPORATION v. United States, Civ. No. 3181.

• Decision Date: 19 July 1949
• Docket Number: Civ. No. 3181.
• Citation: 84 F. Supp. 800
• Parties: PITTSTON-LUZERNE CORPORATION v. UNITED STATES et al.
• Court: U.S. District Court — Middle District of Pennsylvania

84 F. Supp. 800

PITTSTON-LUZERNE CORPORATION v. UNITED STATES et al.

Civ. No. 3181.

United States District Court M. D. Pennsylvania.

July 19, 1949.

Daniel J. F. Flood, James L. Brown, Wilkes Barre, Pa., Raymond A. Livingston, Wilkes Barre, Pa., Daniel S. Ring, Washington, D. C., for plaintiff.

Arthur A. Maguire, U. S. Atty., Scranton, Pa., for defendants.

WATSON, Chief Judge.

This is a petition for an equitable determination praying for relief from alleged losses suffered in performance of contracts with the United States during the war. The action is brought under the War Contracts Hardship Claims Act, also known as the Lucas Act, c. 864, sections 1-6, 60 Stat. 902, as amended June 25, 1948, c. 646, section 37, 62 Stat. 992, 41 U.S.C.A. § 106 note.

The action is before the Court on a motion by defendants to dismiss the petition on the grounds that this Court is without jurisdiction of the subject matter, and that plaintiff has failed to state a claim against the defendants upon which relief can be granted under the Lucas Act and Executive Order Oct. 5, 1946, No. 9786, because (1) plaintiff seeks recovery of alleged losses under contracts under which it did not furnish work, supplies or services for the agency involved, the Department of the Navy, on or before August 14, 1945, in contravention of Sections 1 and 2(a) of said Act and Paragraph 305 of Executive Order 9786; (2) plaintiff seeks recovery of alleged losses sustained both before and after August 14, 1945, without any specification of the amount of losses allegedly sustained on or before August 14, 1945, in contravention of Sections 1, 2(a), and 3 of said Act and Paragraphs 101.4, 101.5, 101.7, 101.8, 101.9, 101.11 and 305 of Executive Order 9786; and (3) the agency involved, the Department of the Navy, did not find that plaintiff would have been granted relief under the First War Powers Act of 1941, 50 U.S.C.A.Appendix, § 611, if final action with respect to its claim had been taken on or before August 14, 1945, in contravention of said Act and Paragraph 307 of Executive Order 9786. In the alternative, defendants seek summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., on the ground that there is no genuine issue as to any material fact, and that defendants are entitled to judgment as a matter of law. In support of the motion, defendants filed an affidavit with exhibits attached thereto by L. T. Harrison, Contracting Officer, Bureau of Ships.

Defendant Forrestal, as Secretary of Defense, and Defendant Sullivan, as Secretary of the Department of the Navy, also move to dismiss the petition as to them on the ground that this Court lacks venue. In a Stipulation entered into April 20, 1949, by and between counsel for the parties, and filed April 22, 1949, plaintiff agreed that the action be discontinued and dismissed as to James V. Forrestal, Pentagon Building, Washington 25, D. C., as Secretary of Defense, and John L. Sullivan, Navy Building, Washington 25, D. C., as Secretary of the Department of the Navy. Under Rule 41 (a) (1) of the Federal Rules of Civil Procedure, 28 U.S.C.A., an action may be dismissed without order of Court by the filing of such stipulation signed by all parties who have appeared in the action.

Plaintiff's Amended Complaint states: "6. During said period, to wit: From August 1944 to the 14th day of August, 1945, in furnishing work, supplies and services under the provisions of Contract NObs-16054 and without fault or negligence on its part, plaintiff incurred a loss of $33,603.48 in that the cost of performance amounted to $62,179.48 and the contract price amounted to $28,576.00. 7. During said period, to wit, from August 1944 to August 14, 1945, in furnishing work, supplies and services under the provisions of Contract NObs-17461, and without fault or negligence on its part, plaintiff incurred a loss of $65,917.61...