B-92306, FEB. 7, 1956

B-92306, FEB. 7, 1956

TO MR. FRANCIS A. MURACCA, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 17, 1955, ADVISING THAT ON SEPTEMBER 30, 1955, IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, IN THE CASE OF UNITED STATES V. HARRY P. KOURY, CIVIL ACTION NO. 12000, AN ORDER WAS ENTERED WHEREBY THE COMPLAINT AGAINST MR. KOURY IN THE AMOUNT OF $3,112.80 WAS DISMISSED WITHOUT PREJUDICE. THE BASIS OF SUCH ORDER, YOU REQUEST THAT WE ACKNOWLEDGE THE COMPLETE RELEASE AND WITHDRAWAL OF THE CLAIM OF THE UNITED STATES AGAINST MR. KOURY IN THAT AMOUNT.

THE LEGAL EFFECT OF AN ORDER WHEREBY A COMPLAINT IS DISMISSED WITHOUT PREJUDICE IS TO LEAVE THE PARTIES IN THE SAME STATUS AS BEFORE THE SUIT WAS INSTITUTED WITHOUT PREJUDICE TO THE RIGHTS OF EITHER PARTY. IT IS NOT AN ADJUDICATION OF THE CAUSE AND SUCH ACTION NEITHER CONSTITUTES AN ADJUDICATION BY A PROPER TRIBUNAL NOR AN ACKNOWLEDGMENT THAT THE CAUSE OF ACTION IS NOT WELL FOUNDED IN LAW. FLEISBEIN V. WESTERN AUTO SUPPLY AGENCY, 65 P.2D 928; 27 C.J.S. DISMISSAL AND NONSUIT SEC. 73. ALSO SEE WORDS AND PHRASES "DISMISSAL WITHOUT PREJUDICE.' IT LEAVES THE SITUATION AS IF THE SUIT HAD NEVER BEEN BROUGHT (BRIAN V. SMITH ET AL., 174 F.2D 212) AND WOULD BE NO BAR TO A SUBSEQUENT SUIT ON THE SAME CAUSE OF ACTION (KOHLOFF ET AL. V. FORD MOTOR CO., 29 F.SUPP. 843). THUS THE FACT THAT SUCH AN ORDER MAY HAVE BEEN ENTERED WOULD NOT APPEAR TO WARRANT OR REQUIRE ANY AFFIRMATIVE ACTION TO RELEASE OR WITHDRAW ANY RIGHTS THAT THE UNITED STATES MAY HAVE IN THE MATTER. ACCORDINGLY, WE MAY NOT COMPLY WITH YOUR REQUEST.