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UNITED STATES EX REL. TECOT ELEC. SUPPLY CO. v. NE

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


April 20, 1960

UNITED STATES of America to the Use of TECOT ELECTRIC SUPPLY CO.
v.
NEW AMSTERDAM CASUALTY CO.

The opinion of the court was delivered by: GOODRICH

The use plaintiff (plaintiff), a supplier of a subcontractor, brings this action against the surety of the prime contractor on a payment bond furnished pursuant to a contract between the prime contractor and the Department of the Navy dated June, 17, 1958. Plaintiff claims for supplies rendered the subcontractor.

The defendant moves to dismiss because the plaintiff has not alleged that it gave written notice to the contractor within ninety days after plaintiff supplied the last of the materials as prescribed by Section 2 of the Miller Act. *fn1" Plaintiff's complaint says that 'the defendant, the prime contractor and subcontractor have had more than ninety (90) days notice of' the claim, but it does not say that the plaintiff gave notice in writing in accordance with the provisions of the statute. Plaintiff argues rather that such notice is not mandatory and that the only requirement is that the fact of the plaintiff's claim be known.

 This position is not well taken. Where the claimant has had no direct contractual relationship (express or implied) with the prime contractor, notice in writing is mandatory. *fn2" If the plaintiff cares to amend its complaint to allege the notice required by the statute, it may do so. Otherwise, the motion to dismiss will be granted because the complaint fails to state a claim against the defendant upon which relief can be granted.


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