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ZIPLEY v. UNITED STATES

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


March 6, 1959

Henry T. ZIPLEY t/a Glenside Roofing & Siding Co.,
v.
UNITED STATES of America

The opinion of the court was delivered by: DUSEN

Sur petitions for payment of money in registry of court to Henry T. Zipley (Document No. 18), *fn1" United States of America (Document No. 20) and to the trustee in bankruptcy of Elayne M. Zipley, trading as Glenside Roofing & Siding Company (Document No. 23).

I. History of the case

 This action was instituted on February 3, 1954, for the recovery of inadvertently and erroneously paid Federal Insurance Contributions (see 26 U.S.C.A. § 1400 ff.) and Federal Unemployment Compensation Taxes (see 26 U.S.C.A. § 1600 ff.). After a trial, Judge Watson entered judgment for the plaintiff upon the basis of an opinion containing Findings of Fact and Conclusions of Law ( Document No. 8, D.C., 156 F.Supp. 141). Subsequently, the defendant filed a motion for leave to pay the amount of the judgment *fn2" into the registry of the court. After hearing on this motion and agreement by all counsel concerned, *fn3" the undersigned granted the motion by order filed August 7, 1958 (Document No. 17), pursuant to which defendant paid $ 3,333.61 into the registry of the court on August 19, 1958, and $ 1,755.23 of this sum was paid to plaintiff's tax attorneys on the same date, leaving a balance of $ 1,578.38 in the registry of the court.

 Subsequently, the above-mentioned petitions were filed for payments out of the balance in the registry. Henry T. Zipley claims $ 902.34 ($ 1,578.38 less $ 676.04, which he concedes is owing to the United States of America *fn4" ). The United States of America claims $ 676.04, being the amount due on a judgment entered December 27, 1956, against Henry T. Zipley (No. 769, Nov. Term 1954, Court of Common Pleas of Montgomery County, Pa.), which judgment was marked to the use of the United States of America on October 21, 1957. *fn5" Henry S. Miller, trustee in bankruptcy of the estate of Elayne M. Zipley, claims the entire amount of $ 1,578.38, alleging that the United States of America must file its claim for $ 676.04 in the bankruptcy proceedings since the trustee contends he became entitled to the claim covered by the complaint filed February 23, 1954, by the adjudication of Elayne M. Zipley as a bankrupt on December 10, 1956 (N.T. 85). *fn6"

 Hearings were held on the above petitions on November 3 and November 6, 1958. At both hearings, counsel for all three petitioners were present, and it was agreed that the deposition of Elayne M. Zipley would be taken by the trustee, transcribed, and added to the record (N.T. 90-1, 95-6). The transcript of this deposition was filed January 15, 1959 (Document No. 26), and the final brief of counsel was filed in February 1959. *fn7" A stipulation (Document No. 24) was also filed that the attached letters of November 15 (Mr. McClain) and November 17 (Mr. Bell) are to be considered as if their authors had testified in accordance with those letters.

 Counsel agreed that the hearing judge should decide the matter on briefs, without further argument, after the record was completed in January 1959.

 II. Findings of Fact

 Although Mrs. Zipley had been a partner in the Glenside Roofing & Siding Company for about two years in the late 1940s, she withdrew from this business prior to April 15, 1950, and it was conducted by Henry T. Zipley as a sole proprietor, at least from April 15, 1950, until the latter part of November 1954 (N.T. 18, 26, 78). At that time, a partnership was formed between Henry T. Zipley and Elayne M. Zipley for the conduct of this business under the name of the Glenside Roofing & Siding Company (see Exhibit P-1), but it was specifically agreed between the partners that the claim represented by this suit (Civil Action No. 16,426) was to be retained by Henry T. Zipley and to be excluded from the partnership when the partnership was started at the end of November 1954. *fn8"

 Henry T. Zipley withdrew from this partnership in December 1955 (N.T. 24 and Deposition (Document No. 26), pp. 30-1) and Elayne M. Zipley operated it as a sole proprietorship for at least nine months prior to the filing in December 1956 of an involuntary petition under the Bankruptcy Act, 11 U.S.C.A. § 1 et seq. (Cause No. 24897; N.T. 19 & 36). The business went downhill rapidly after Mrs. Zipley operated it as a sole proprietorship beginning December 1955 (N.T. 87), but it was solvent in November 1954, when Mrs. Zipley became a partner, and the claim represented by this suit was retained by Mr. Zipley (see Exhibit T-1).

 At the time of the trial of this suit before Judge Watson in November 1956, the cost of transcribing the notes of testimony taken at that trial was paid for by Mrs. Zipley (letter of November 17, 1958, attached hereto). *fn9"

 III. Discussion

 The entire argument of the trustee must rest on and attempt to discredit the testimony of his own witness. *fn10" This witness testified that the right to any amounts covered by this suit was retained solely by Mr. Zipley in his own capacity in November 1954, using this language at page 11 of her Deposition (Document No. 26): *fn11"

 'Actually, I told Zip he could have it, because, first of all, I never believed it would go through. We thought it was just another one of his pranks, actually. When he said he was suing the Government, I said, 'You can keep it if you win anything out of suing the Government.' That is exactly the way it was.'

 Although the hearing judge would have some doubt about the findings set out above without the testimony of this witness *fn12" and if she was not the trustee's witness, the findings are required by this record since Mrs. Zipley was the trustee's witness. The above-quoted direct testimony overcomes any inference that may be drawn from the fact that Mrs. Zipley paid for the costs of transcribing the notes of testimony at the trial.

 The claim was clearly owned by Henry T. Zipley, as a sole proprietor, as of the time this suit was instituted in 1954. The trustee has not sustained his burden of showing that Elayne M. Zipley was entitled to recover any part of this claim because she was a partner in the enterprise for a few months in 1950, since there is nothing in the record to show either that any of the refunded tax payments were made prior to April of 1950 or that, when the partnership was terminated early in 1950, the understanding was that this claim should not continue with the business.

 On this record, it is not necessary to decide whether Mrs. Zipley could assign any right she may have had to this claim, since, under the evidence, this right was not assigned to the newly-formed partnership of November 1954 but was specifically retained by Henry T. Zipley from the assets assigned to that partnership.

 IV. Conclusions of Law

 1. This court has jurisdiction of the parties and the subject matter. See Pennsylvania Turnpike Commission v. McGinnes, D.C.1958, 169 F.Supp. 580.

 2. The United States of America is entitled to payment out of the registry of the court in the amount of $ 676.04. *fn13"

 3. Henry T. Zipley is entitled to payment out of the registry of the court in the amount of $ 902.34.

 4. The petition of the trustee (Document No. 23) should be dismissed.

 Order

 And Now, March 6, 1959, it is Ordered that $ 676.04 be paid out of the registry of the court to the Treasurer of the United States of America and that $ 902.34 be paid out of the registry of the court to Henry T. Zipley.


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