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UNITED STATES v. MARPLE COMMUNITY RECORD

November 10, 1971

UNITED STATES of America
v.
MARPLE COMMUNITY RECORD, INC., et al.


John Morgan Davis, District Judge.


The opinion of the court was delivered by: DAVIS

Presently before this Court are several motions brought by plaintiff and defendants respectively in the above captioned matter.

 The background of this case is as follows. Pursuant to its application dated February 20, 1961, the Marple Community Record, Inc. (hereafter Marple) was granted on March 29, 1961 the privilege of mailing its publication of the same name by second class mail. The application, signed by defendant Walter N. Connors, indicated that the publication then had 4,764 paid subscribers. The owner of Marple was listed as defendant Ralph V. Crisanti. From April, 1961, through April, 1965, the Marple Community Record was published regularly and mailed at second class rates on the basis of the initial application. On May 5, 1965, the Post Office Department reviewed Marple's files and found that Marple did not have a legitimate list of subscribers to qualify for second class mail privileges as of that date. By a list which Marple furnished to the Post Office Department and by the Post Office's own records of second class mailings by Marple, it was determined that Marple owed the Government $29,355.02 for deficient postage resulting from their usage of the second class rate during the calendar years 1962 through June 10, 1965. This information along with the Post Office's supporting statistics showing paid subscribers versus actual subscribers was included in a letter to Marple from Postal Inspector B. Krautheim. In reply by a letter dated October 26, 1965, Dominic D. Jerome, Esquire, attorney for Marple, denied Marple's liability to the government and requested a hearing. To this request, Edwin A. Riley, Director of Classifications and Special Services Division, Post Office Department, in a letter dated December 20, 1970, explained that no such hearing procedure was available but that the Post Office would consider any explanations Marple might wish to furnish. After this, at various times during 1966, 1967, and 1968, negotiations were carried on between plaintiff and Marple with respect to the alleged deficiency. No agreements were reached, however, and nothing was settled. During that time, i.e. on December 9, 1966, Mr. Riley wrote a letter informing Marple that "it was no longer entitled to second class mail privileges." This letter was followed by another from Mr. Riley, dated February 9, 1967, advising Marple that it must submit information demonstrating compliance with § 132.227, Postal Manual (percent of paid subscribers to total circulation) within thirty days on penalty of having its second class mail privileges revoked. Marple requested and received two extensions but its request for a third and longer extension in order to attract new subscribers to bring Marple into compliance with postal regulations was not acted upon. In April, 1967, plaintiff revoked Marple's second class mail privileges and Marple did not attempt to contest this decision. Consequently, this action was commenced on July 16, 1969. Count I of the action is brought under 31 U.S.C. §§ 231-235, the False Claims Act. Count II is a civil claim for fraud and deceit.

 a. Plaintiff's Motion for Summary Judgment with respect to Count I.

 b. Defendants' Cross-Motion for Summary Judgment with respect to Count I on the ground that it fails to state a cause of action under 31 U.S.C. §§ 231-235.

 c. Motion of defendants, Walter N. Connors, Ralph V. Cristani, and Edward H. De Vita, for Summary Judgment.

 d. Motion of defendant E. Dudley James for Summary Judgment on Count I.

 e. Plaintiff's Motions to Strike Motions in c and d above.

 f. Defendants' Motion for Summary Judgment with respect to Count I on the ground that the Statute of Limitations has run.

 I.

 For reasons which shall become apparent, we shall consider the Motions and Cross-Motion for Summary Judgment on Count I together, concentrating first on defendant's Cross-Motion.

 As we have noted, Count I of the Complaint is brought pursuant to the False Claims Act, Title 31 U.S.C. § 231-235. At issue in defendant's motion is the scope of this act as defined in Title 31 U.S.C. § 231, to wit:

 
Any person * * * who shall * * * cause to be presented, for payment or approval * * * any claim upon or against the * * * United States * * *, knowing such claim to be * * * fraudulent, or who, for the purpose of obtaining * * * the payment or approval of such claim, makes, uses, or causes to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement of entry, * * * shall forfeit and pay to the ...

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