*1 Dissenting by Mr. Chief Bell: In my Paper Products Pitts- judgment, v. 391 Pa. 137 A. 2d burgh, rules this 253, directly subject ease and appellee is to the mercantile license tax only as a wholesale It for- vendor. must be gotten that tax statutes be most strong- must construed I ly authorities. would affirm against taxing Ralph H. J., speaking Smith, lower Court.
Progress Manufacturing Company, Inc. v.
Unemployment Compensation Board Appellant.
of Review, J., 1961. Before C. Bell, Argued JJ, Cohen Jones, Eagen, Musmanno, *2 Deputy Attorney Alan Miles Ruben, General, with Sydney Attorney him Reuben, Assistant General, Attorney David Stahl, for General, Compensation appellant. Board of Review, II,
Richard with Kirschner, Wilderman, him Louis appellants. for intervenors, Geoffrey Josephine J. Gunniff, with him E. Klein, appellee. for parties Stein,
Gilbert for interested under Rule 46. January 1962: 2, Mr. Cohen, Progress Manufacturing Company and the Inter- national Brotherhood of Electrical Workers, Local entered 2002, into a bargaining agreement collective containing stating clauses that no strikes, lockouts, etc., place during agreement take would life of that all under stated disputes would be arbitrated grievance while this procedure. On October 17, 1958, contract was in discharged two force, and the entire work force went out on strike. employees, then Progress reduced the each case to a discharge suspension and indicated willingness its to refer issue to arbitration if all the striking workers would return by October 1958. The union countered with a proposal that the two employees be allowed to return to work pending the outcome of the arbitra- tion but proceeding, Progress rejected this proposal.
On October 20,1958 (a all of Monday), virtually nine Company’s hundred employees failed to report and plant operations work, ceased October 1958. All of the employees received from two notices *3 the Company October 1958. One 24, stated that, participation because of in an unlawful work stoppage, the was until employee further notice. The other instructed the to employee return an enclosed if signature card he was interested in to returning work. All of the returned employees the cards.
On October the 28, 1958, Company began to recall its and by employees, 4, about 1958, seven had hundred been recalled. fifty The remainder were and on November recalled, 1958 they received from the notices that Company their services were The present terminated. claimants are among those whose services were thus terminated.
None of the facts related thus far in are dispute; nor are the legal principles applicable to the issue If controversy. matter of the claimants were dis- of their because charged participation in an illegal an act of stoppage, work willful misconduct within the §402(e) of of the meaning Unemployment Compensa- Act of December tion Law, 5, 1936, P.L. (1937) 2897, 43 P.S. amended, as see §802(e), Weimer Unemploy- ment 176 Compensation Case, Pa. Superior Ct. 348, 107
166 unemployment they ineligible (1954), for A. 2d are question why here is were benefits. the critical Hence, discharged? claimants the Employment Security, the referee Bureau of The Compensation Unemployment Board of and the Review discharged had not all found that the claimants been participation Supe- in the The because of their strike.. contrary, rior Court decided to the with three dissents, prior eligibility. and the determinations of reversed dispute upon freely The factual centers the admitted point (by Company) determining in the whom to that, based its decision both on the recall, qualifications record and and on the individual’s work Company. Company’s The in- needs of the director of dustrial relations testified before the referee on cross- concerning examination “We basis selection: Company ...” determined the recall the needs of the again: qualifications “We considered the man’s bring ability again: to him back.” order and still depended entirely performance, “. . . It on the man’s depended ability, and it on that his whether he should Undoubtedly not.” be called back or because of this Compensation testimony, Board of findings made fact as Review follows: “9. On October company began employees to recall in ac- management’s judgment cordance with as to the needs company.” recalling employees “15. In man- agement work records and scrutinized decided that cer- *4 qualified people tain were not and, did therefore, not recall them.” Superior
The Court held while these factors that, important determining in were whom to it was recall, participation only stoppage actually in the work which discharges. In caused the our this is un- view following despite realistic for the reasons: First, the argument suspension employer’s that the notice of Octo- really discharge, 24 a ber was the facts indicate that actually employment on November terminated was to claim- sent termination were when the notices of stop- the work after 10 was two weeks ants—November anywhere in page no exists basis had ended. Second, recalled those between record for a differentiation the participation discharged in relative to their and those may stoppage. well be that the work the It work opportunity stoppage provided the fortuitous procedure long Company engage it had desired— in a to discharge employees namely the record to all the —but Company itself of not disclose that the availed does opportunity. all The em- that stoppage ployees indiscriminately illegal for the work procedure evaluating indulged in a of the and then ability qualifications, record to determine work discharged. be retained who should be who should illegal stoppage It and not the was this evaluation work discharge. determined the that principle important, Most is the that the however, supported findings of to of the Board Review as if facts, by are conclusive. Com- evidence, the pensation supra, §830. 43 PS §510, Here the Law, findings of Board stated made which the fact, above, disregarded despite Superior has Court the fact that supported by findings are well the the evidence con- appellate The in the record. tained courts do not exist re-try matters better left to factual determination to agencies charged hearing administrative with begin ap- and we should to alter cases, this proach applied correctly The Board, now. moreover, eligible. and found these facts to claimants law Superior judgment of the Court is
The reversed; Unemployment Compensation order Board of and the record is is reinstated remanded Review to the proceed stated as therein. Board to Alpern part took no consideration or this case. decision
Í68
Dissenting : Mr. Chief Bell I would affirm the on the Judge judgment Court. Superior for a. speaking majority Ervin, Board of Public District of School Education, Appellant,
Philadelphia, v. Soler. Before C. 1961. Bell, J., Argued Eagen JJ. Cohen, Alpern, Jones, Musmanno,