Thomas Cronin Co. v. Lewellyn
| Decision Date | 18 November 1925 |
| Citation | 9 F.2d 974 |
| Parties | THOMAS CRONIN CO. v. LEWELLYN, Late Collector of Internal Revenue. |
| Court | U.S. District Court — Western District of Pennsylvania |
William G. Heiner, of Pittsburgh, Pa., for plaintiff.
John D. Meyer, U. S. Atty., of Pittsburgh, Pa., for defendant.
The plaintiff has brought this suit to recover certain taxes which it claims were unlawfully collected by the collector of internal revenue, and has now moved for judgment for want of a sufficient affidavit of defense. The questions presented are: (1) When made upon information and belief, is the defendant's denial of certain averments of fact contained in the statement of claim sufficient under the Pennsylvania Practice Act to put those averments of the statement of claim in issue? (2) Is the defendant, as collector of internal revenue, bound to know the facts set forth in income tax returns made to a collector other than himself, and is he responsible for any tax moneys collected by a collector other than himself? And (3) does the plaintiff's statement of claim, even taking it all as true, present a case which entitles it to judgment against the defendant?
Before taking up the question raised by the plaintiff's motion, it might be noted that the plaintiff is not in a very good position to urge this motion for want of a sufficient affidavit of defense, in so far as it urges noncompliance by defendant with the Practice Act of Pennsylvania, in view of the fact that the plaintiff itself has not complied with section 9 of the Practice Act of Pennsylvania of May 14, 1915 (P. L. 483; Pa. St. 1920, § 17189), for its statement of claim is not sworn to by the plaintiff, or some person having knowledge of the facts. In the affidavit attached to the plaintiff's statement of claim, Harry Cronin, president of the plaintiff corporation, avers "that the facts contained in the foregoing statement of claim are true and correct to the best of his knowledge and belief." Nowhere does it appear that the affiant has any knowledge of the facts. The facts and circumstances of this claim might be peculiarly within the knowledge of some other officer of the corporation, who would be the only person qualified to make the affidavit. Certainly those portions of the statement of claim which are only true to the best of affiant's knowledge and belief, by one who has no knowledge of the facts, would not make such a sworn statement of the facts as would justify the court in giving a summary judgment for want of a sufficient affidavit of defense.
Turning, now, to the affidavit of defense the plaintiff urges that, as to the paragraphs of statement of claim which the defendant has denied, he has done so only on information and belief, and that such denial is insufficient under the Pennsylvania Practice Act to constitute a defense to the facts. The type of denials complained of by the plaintiff are as follows: "The defendant avers that he has exhausted all sources of knowledge which are open to him for the purpose of determining the truth of the averments in said paragraph of plaintiff's statement of claim, and that from all information received, coupled with his general knowledge of the matter, he believes and avers the said averments complained of to be untrue, and so expects to be able to prove at the trial of this case."
The plaintiff, relying on Buehler v. United States Fashion Plate Co., 269 Pa. 428, 112 A. 632, urges that this is not sufficient, because the defendant did not set out the names of the persons from whom he inquired, nor state all other sources of information to which he applied, in order that the court might in every instance determine whether the defendant had sufficiently exhausted all sources of information, in order to permit him to make a denial on information and belief, so as to put the plaintiff to the proof of the facts alleged. After carefully studying the opinion of Mr. Justice Moschzisker, in the...
To continue reading
Request your trial