UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF PENNSYLVANIA
July 16, 1948
MEDRICK et al.
TEXTILE MACH. WORKS, Inc.
The opinion of the court was delivered by: FOLLMER
This is an action commonly known as a Portal-to-Portal suit, wherein Plaintiffs in a complaint filed January 2, 1947, following the decision of the Supreme Court in Anderson et al. v. Mt. Clemens Pottery Co., 1946, 328 U.S. 680, 66 S. Ct. 1187, 90 L. Ed. 1515, claimed overtime compensation and liquidated damages for time allegedly spent on the employer's premises either before the scheduled starting time, in waiting, in changing clothes, in obtaining equipment or tools, punching time clocks, and in similar activities.
Subsequent thereto, the Portal-to-Portal Act of 1947, effective May 14, 1947, was enacted.
On May 4, 1948 defendant filed a 'Supplemental Motion to Dismiss' which raises the defense of lack of jurisdiction over the subject matter, in that the complaint does not allege that such activities were compensable by either an express provision of a written or non-written contract in effect at the time of such activity, or a custom or practice in effect at the time of such activities, as required by Sec. 2(a)(1, 2), of the Portal-to-Portal Act, 29 U.S.C.A. § 252(a)(1, 2). Plaintiff has had ample time to amend the complaint since the enactment of that act, but has not seen proper to do so. This question has received the attention of the Courts in numerous opinions and further discussion would add nothing.
Plaintiff having failed to allege that the employment activities, for which compensation is claimed, were, when performed, compensable under a then effective express agreement or custom or practice, as required by the Portal-to-Portal Act, this Court is without jurisdiction to entertain the suit. The motion to dismiss the action is accordingly granted.