ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civ. No. 76-684)
Before Gibbons and Weis, Circuit Judges and Dumbauld, District Judge.*fn*
This appeal requires us to unravel a procedural web in which the parties became hopelessly, and we find somewhat helplessly, entangled. We vacate the order dated August 29, 1977, granting the United States judgment notwithstanding the verdict and reinstate a final judgment entered on a verdict on special interrogatories and a stipulation as to amount, dated June 20, 1977. The result is to vacate a judgment entered in favor of the government for $179,752.06, the amount of the demand in its counterclaim, and to reinstate a judgment in favor of the government for $14,288.17, the amount which it stipulated was due under the jury's verdict on special interrogatories.
The plaintiff-appellant is Harlin J. Wall. On November 10, 1975, the Commissioner of Internal Revenue made an assessment against Wall, pursuant to §§ 6671 and 6672 of the Internal Revenue Code, 26 U.S.C. §§ 6671, 6672, for penalties in the amount of the tax which should have been withheld from the wages of employees of three corporations and paid over to the government. The assessments were as follows:
For quarter been withheld
Corporation ending and paid over
Industries, Inc. September 30, 1972 $50,399.12
Con-Co., Inc. June 30, 1972 67,045.32
September 30, 1972 40,599.10
Highland Construction June 30, 1972 12,890.84
Corp. September 30, 1972 8,817.68
Wall paid $500 in partial satisfaction of the assessment and made a timely claim for refund, which was denied on February 24, 1976. On June 1, 1976, he filed a suit in the district court for refund of the $500, in order to litigate his contentions (1) that during the quarters in question he was not a "person required to collect, truthfully account for, and pay over" withholding taxes for the named corporations, within the meaning of §§ 6671(b) and 6672, and (2) that he did not willfully fail to collect or account for such taxes.
Before the government was served with the complaint, the district court, Sua sponte entered "Order # 1" fixing a pretrial conference date on January 4, 1977, a date for drawing a jury on January 5, 1977, and a date for completion of discovery on December 21, 1976. The court also entered, Sua sponte "Order # 2", a ...