Opinion
No. 2357.
April 5, 1944.
James J. Burns, Jr., of Pittsburgh, Pa., for plaintiff.
Scott Fink, of Greensburg, Pa., Co. Sol., and Oliver K. Eaton, of Pittsburgh, Pa., special counsel, for defendant.
This matter was before this court before, and the court, on December 13, 1943, 52 F. Supp. 788, ordered that the complaint be dismissed because it failed to set forth a cause of action upon which relief could be granted. Later counsel for the complainant filed a motion to amend the complaint, and to avert any technical question in relation thereto the court vacated the order of dismissal.
The essential facts, as they appeared to the court when the matter was first heard, appear in the opinion filed with the order of December 13, 1943. The amendment, so far as it is material to the matters considered, simply added a declaration that the treasurer of the county, and his agents, knew that Anna Kate Stewart, who made the payment in question, was not a county, borough or township tax collector, and therefore not required to account to the treasurer for taxes, and also knew that she was tax collector for the School District of Derry Township.
As the court views the amendment, it does not change the situation as it appeared to the court when the original order was made. The payment was made to an officer entitled to receive taxes and was made on behalf of the Estate of C.C. Stewart, father of Anna Kate Stewart, which was indebted to the treasurer for the amount paid on its behalf. That Anna Kate Stewart was not a collector of county taxes and was a tax collector for the School District, although known to the treasurer, would not be notice to the treasurer that she was erroneously or wrongly paying a debt of her father. But even if wrongful receipt of the tax were admitted on the part of the treasurer, it would not change the payment into anything other than an erroneous payment of tax to the county, with the rights of action for its recovery only such as had been granted by statute. Making the treasurer a defendant would not help the plaintiff in a suit against the county.
The complaint, as amended, will be dismissed.