Robbins v. Nagelberg

8 F.R.D. 36, 1948 U.S. Dist. LEXIS 3199

• Court: District Court, E.D. Pennsylvania
• Decided: March 10, 1948
• Docket: Civ. A. No. 5445
• Status: Published

Opinion

McGRANERY, District Judge.

This is a suit for damages for an overcharge under the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, § 901 et seq. Service of the summons and complaint was made upon Rose Nagelberg, 7032 N. Broad St., Philadelphia, Pa. The complaint states in Paragraph 3 that suit is against “defendants, husband and wife, residing at 7032 No. Broad Street, Philadelphia, Pa.,” who “sold and delivered to plaintiff, other than in the course of plaintiff’s trade or business, a used mechanical household refrigerator, known as a 1940 Norge Refrigerator, Model V. R. S. 6, * * at a price of Two Hundred and Sixty ($260.00) Dollars.” The caption of the complaint and summons incorrectly states the name of defendant Rose Nagelberg’s husband as Sydney, rather than Irving, Nagelberg. At the hearing, attorney for plaintiff stated that the suit is unopposed, that counsel for Rose Nagelberg so informed him, and that Irving, not Sydney, Nagelberg is the name of Rose Nagelberg’s husband. An affidavit setting forth information supporting the last assertion has been filed. Accordingly, therefore, he moved to amend the caption of the process and of the complaint to correctly state the name of Irving Nagelberg. Since the original complaint gave adequate notice that suit was actually against husband and wife, and since it was served upon a proper person, as to both defendants, I am allowing the amendment. Cf. Commentaries, 2 Fed. Rules Svc., 150, 5 Fed.Rules Svc. 4h.l. Accordingly, therefore, after hearing and testimony in open Court, I, also made the following:

Findings of Fact

1. On December 28, 1944, plaintiff, A. Allen Robbins, purchased for the sum of $260 a 1940 Norge household refrigerator, Model V. R. S. 6, “As is’’ from the defendants, Rose Nagelberg and Irving Nagel-berg.

2. Irving Nagelberg was and is the husband of the defendant, Rose Nagelberg.

3. Said consideration of $260 was paid to the defendants on December 28, 1944.

4. Under the OPA Maximum Price Regulation No. 139, the maximum legal price for sale of said 1940 Norge refrigerator, Model V. R. S. 6, was $100.50.

Conclusions of Law

1. This Court has jurisdiction over the subject matter and the parties to this action.

2. Judgment will be entered for plaintiff against Rose and Irving Nagelberg in the sum of $194.50 which includes an attorney’s fee of $35.00.