The opinion of the court was delivered by: FOLLMER
This is a suit under the reemployment provisions of Section 8 of the Selective Training and Service Act of 1940, as amended, Title 50 U.S.C.A.Appendix 308, and as extended by the Service Extension Act of 1941, Title 50 U.S.C.A.Appendix 357.
The plaintiff seeks reemployment with the defendant under the conditions which prevailed at the time of his induction into the Army of the United States, and compensation for loss in wages and earnings suffered by him by reason of the defendant's alleged wrongful failure and refusal to return him to his former position.
The relevant portions of the Act, 50 U.S.C.A.Appendix, 308, are as follows:
'(b) In the case of any such person who, in order to perform such training and service, has left or leaves a position, other than a temporary position, in the employ of any employer * * * and (3) makes application for reemployment within ninety days after he is relieved from such training and service * * *
1. This Court has jurisdiction of the parties and of the subject matter under Section 8(e) of the Selective Training and Service Act, as amended, Title 50 U.S.C.A.Appendix 308(e) and as extended by the Service Extension Act of 1941, Title 50 U.S.C.A.Appendix 357.
2. Plaintiff and defendant are both residents of the City of Erie, and State of Pennsylvania, and within the jurisdiction of this Court.
3. Defendant is engaged, as the sole owner and proprietor, in the City of Erie, and under the trade name of Hubbell Supply Company, in the sale of janitorial and institutional supplies.
4. Plaintiff entered the employ of defendant as a salesman January 1, 1941, and continued in that capacity until his induction into the armed services on December 4, 1943.
5. During the entire period of this employment the complete personnel of the business consisted of the defendant, the proprietor; the plaintiff, a salesman; and Mildred Green, bookkeeper.
6. Plaintiff was honorably discharged from the armed services of the United States at Denver, Colorado, on September 2, 1944.
7. Approximately two weeks after his return to Erie, plaintiff moved with his family first to Fort Lauderdale, Florida, and then to Miami, Florida, where he secured employment as a clerk with Swift & Company for whom he continued to work until February, 1945.
8. That he was unemployed from the latter part of February, 1945, until the latter part of March, 1945, when he and his family moved to Allentown, Pennsylvania, where they remained with his wife's parents until August 1, 1945.
9. That during his stay in Allentown, Pennsylvania, plaintiff had part time employment with ...