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OSHIVER v. UNITED STATES

August 20, 1985

SYLVIA OSHIVER
v.
UNITED STATES OF AMERICA and ALBERT OSHIVER



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 Presently before the court is plaintiff's application for a writ of mandamus and defendant United States of America's motion to dismiss. For the reasons stated herein, plaintiff's application will be denied and defendant's motion to dismiss will be granted.

 FACTS

 On November 11, 1945, Albert Oshiver ("Oshiver") and plaintiff were married. They established their marital domicile in Philadelphia, Pennsylvania, where they had their first and only child on February 22, 1952.

 Oshiver abandoned his wife and child in 1955. No divorce was ever procured, but Oshiver was obligated to pay child support. *fn1"

 Between January 25, 1942 and October 21, 1967, Oshiver was employed in a military or civilian capacity with the federal government. Presumably throughout the period of employment Oshiver contributed a percentage of his basic pay to the Civil Service Retirement and Disability Fund ("Fund"). On October 21, 1967, Oshiver became separated from employment with the government. The parties do not specify the reasons for the separation.

 Oshiver disappeared in 1968 and has not been seen or heard from by plaintiff, his relatives, or his friends.

 Oshiver became eligible to receive Civil Service Retirement Benefits ("benefits") on April 3, 1982, the date of his sixty-second birthday.

 Shortly thereafter, seeking to collect child support arrearages, plaintiff filed suit against Oshiver in the Court of Common Pleas of Philadelphia County and procured a judgment against Oshiver for $46,989.64 with interest from May 19, 1982.

 Plaintiff then commenced garnishment proceedings against the Social Security Administration (the "SSA") and the Civil Service Administration (the "CSA") (hereinafter SSA and CSA are referred to collectively as the "agencies"). No application for Oshiver's benefits was ever filed with the Office of Personnel Management. Instead, plaintiff served garnishment interrogatories on the agencies. The agencies did not respond to the interrogatories in a timely manner, and, thus, pursuant to Pennsylvania law, plaintiff obtained a judgment in the Court of Common Pleas of Philadelphia County against both agencies. Neither agency appealed the judgment.

 Plaintiff then served notice of execution on the agencies. No money was turned over to plaintiff. Consequently, "plaintiff directed the Sheriff of Philadelphia County to execute against the United States Mint," Plaintiff's Complaint at 3, and, in fact, the Sheriff attempted to do so. The United States, however, refused to permit the execution to go forward.

 On April 5, 1984, plaintiff filed this lawsuit in the United States District Court for the Eastern District of Pennsylvania. Plaintiff sought a writ of mandamus directing the United States to pay over to plaintiff the entire amount of $46,989.64, which is in excess of all monies held for Oshiver's benefit, and awarding plaintiff attorney's fees and costs under the Equal Access to Justice Act.

 In compliance with a court Order, plaintiff amended her complaint adding Oshiver as a defendant. Plaintiff avers, and the court believes, that plaintiff exhausted all efforts to locate Oshiver, and the government had no record of Oshiver's addresses after Oshiver's 1968 address at 115 Fifth Street, N.E., Washington, D.C., 20002. Therefore, the court allowed plaintiff to serve ...


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