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09/20/68 MARBLE CRAFT COMPANY v. DUNDEE

September 20, 1968

MARBLE CRAFT COMPANY, INC., A CORPORATION OF THE STATE OF DELAWARE,
v.
DUNDEE, INCORPORATED, A CORPORATION OF THE STATE OF DELAWARE, AND RELIANCE INSURANCE COMPANIES, A CORPORATION OF THE STATE OF PENNSYLVANIA



The opinion of the court was delivered by: Bifferato

VINCENT A. BIFFERATO, ASSOCIATE JUDGE

UNREPORTED OPINION

On September 6, 1968, defendants' Motion to Dismiss was submitted to this Court on briefs. The pertinent facts are as follows:

On June 18, 1965, Dundee, Incorporated, entered into a contract with the United States Government for the construction of a school on the Dover Air Force Base. The payment bond required by 40 U.S.C.A., Section 270 (A) was furnished by Reliance Insurance Companies.

Thereafter, Dundee, Incorporated entered into a subcontract with Marble Craft Company, Inc. Marble Craft Company, Inc. instituted suit against Dundee, Incorporated and Reliance Insurance Companies on the basis of this contract. Defendants, Dundee, Incorporated and Reliance Insurance Companies moved to dismiss the complaint.

Defendants allege that the Superior Court does not have jurisdiction over Plaintiff's alleged cause of action. Defendants rely on 40 U.S.C.A., Section 270 (B) (b).

Plaintiff concedes that the Superior Court lacks jurisdiction over the defendant, Reliance Insurance Companies. The Court agrees with both the defendants' and plaintiff's position that the action should be dismissed as to the defendant, Reliance Insurance Companies. The statute is clear on this point.

As to defendant, Dundee, Incorporated the Court holds that the Superior Court does have jurisdiction over the cause of action filed by the plaintiff.

It is the Court's position that 40 U.S.C.A., Section 270 (B) (b) confers exclusive jurisdiction to the United States District Court over claims against the surety on the bond required by 40 U.S.C.A., Section 270 (A).

In the present case, plaintiff is asserting a claim against defendant, Dundee, Incorporated for materials and services rendered. Plaintiff's action will not be defeated because he joined the bonding company as a defendant. Plaintiff is not asserting a direct claim against the bonding company.

The Motion to Dismiss as to defendant, Reliance Insurance Companies, is granted. The Motion to Dismiss as to defendant, Dundee, Incorporated is denied.

IT IS SO ORDERED.

19680920

© 1997 VersusLaw ...

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