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MCCOMB v. DEIBERT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


February 14, 1949

McCOMB
v.
DEIBERT

The opinion of the court was delivered by: GANEY

This is an action instituted by the Administrator of the Wage and Hour Division pursuant to section 17 of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A. ยง 201 et seq., to enjoin the defendant from violating sections 15(a)(2) and 15(a)(5) of the Act because of his failure to pay his employees compensation for overtime and to maintain records in accordance with sections 7 and 11(c), respectively, of the Act. Injunctive action is opposed on the grounds that (1) defendant's employees are not engaged in interstate commerce or in the production of goods for such commerce within the meaning of 7(a) of the Act; and (2) if they are so engaged, the provisions of that section do not apply to them because they are engaged in a retail or retail service establishment within the meaning of Sec. 13(a)(2) of the Act, or they are employed in a bona fide local retailing capacity within the meaning of Sec. 13(a)(1) of the Act.

The parties have agreed that the business conducted by the defendant during the six-month period from July 1 to December 31, 1946, is representative of the character of his business generally. With reference to this representative period of time unless otherwise indicated, the court, from the evidence presented to it, makes the following

 Findings of Fact.

 1. The plaintiff is William R. McComb, Administrator of the Wage and Hour Division of the United States Department of Labor.

 2. The defendant owns and operates an automobile dealer's establishment at 543 N. 15th Street in Allentown, Pennsylvania, at which place he sells new GMC and Divco trucks, GMC and Divco parts and accessories, used trucks and used passenger cars. Servicing and repairing of trucks and passenger cars are also performed there.

 3. The defendant held a franchise from the General Motors Corporation granting him the exclusive right to see new GMC Trucks and the right to sell GMC truck parts for the use of residents of Allentown, and the right to sell new GMC trucks and parts for the use of residents in the territory surrounding Allentown. However, General Motors Corporation reserved the right to sell any of its products to either the United States or any state government or any department or bureau thereof or any foreign government or any municipal corporation or the American Red Cross, fleet users of trucks, any division or subsidiary of the General Motors Corporation and to such others as it might designate. He also held a franchise from the Divco Corporation to sell new Divco trucks and parts in Allentown and its surrounding territory. This corporation reserved the right to make the following classes of sales: to any government or governmental agency, specially designed models, sales which are intended for export, and to so-called National buyers. Under these franchises the defendant was required to maintain a sufficient stock of truck parts to adequately meet the requirements of his customers.

 4. His business is regularly conducted in a one story building 120 feet square that is divided into three rooms: two small rooms, one of which is used for an office and the other as a department for truck parts and accessories; and a large room used for repair work and for the displaying of trucks.

 5. This establishment was opened to the public from 8 A.M. to 5 P.M. six days a week. At present this same schedule is followed except that it closes at 12 noon on Saturdays.

 6. During the stipulated period the defendant sold thirty-two new Divco trucks, eleven new GMC trucks, a new freight trailer, ten used trucks, a used school bus and a used passenger car. Five of the trucks had a rated load capacity of less than a ton, forty-three were one to one and one-half tons, and four ranged from three to five tons; the bus was one and one-half tons, the trailer over one and one-half tons.

 7. New trucks were sold by him at the manufacturer's list price in the following manner:

 (a) The purchaser indicated the type and model desired.

 (b) The defendant ordered it from the manufacturer located in the State of Michigan.

 (c) The manufacturer either shipped it to defendant's establishment via railroad or had it driven there.

 (d) Defendant took title to it.

 (e) Prior to the delivery of the truck to the known purchaser, defendant's employees prepared it for use.

 (f) Upon receiving it, the purchaser took title thereto and paid for it at the list price in cash or cash plus a used motor vehicle.

 8. The demand for new trucks exceeded the supply, and, as a consequence new trucks were difficult to obtain.

 9. He regularly received on the average of five new trucks every three weeks from the manufacturers located in the State of Michigan. At the present time this average has increased.

 10. The purchasers of defendant's motor vehicles were individuals residing in, or industrial or commercial enterprises located in, Allentown and its vicinity. Defendant made no sales or delivery of motor vehicles across State lines.

 11. With the exception of two sales in which two trucks were sold at one time to a purchaser all sales of motor vehicles by him were of the single sale variety.

 12. No motor vehicles were sold by or purchased from him for the purpose of resale.

 13. With the possible exception of the used passenger car, no motor vehicles were purchased from him for personal, family or household use. Defendant's customers were actuated solely by a profit or business motive in making such purchases.

 14. Dairies purchased thirty-one of his trucks principally for the purpose of delivering milk to household users. The remainder were purchased by haulers, paper-hangers, a roofer, a seller of mineral water, a contractor, a soap manufacturer, and a brewery. The bus was bought for the purpose of transporting children to school; the trailer for hauling.

 15. GMC trucks are essentially similar in type and model to trucks manufactured by other concerns, and are unsuited for personal, family or household use.

 16. The Divco is a panel low-floor truck especially designed for the convenient and economical delivery of small parcels of merchandise where delivery stops are numerous and not too far apart.

 17. While the Divco truck is used primarily by dairies, it may be used and is used in a variety of other businesses to make house to house or store to store delivery of merchandise.

 18. Twenty-eight of the thirty-two new Divco trucks were sold by the defendant to individuals who, or concerns which, were engaged in the retail milk delivery business. Of the remaining four, two were sold to a brewery, and one each to a bakery and a seller of mineral water. Two used Divco trucks were sold to a dairy.

 19. All Divco trucks, whether new or used, sold by the defendant had a rated load capacity of either one or one and one-half tons. 20. A chart of the motor vehicles sold by the defendant and the amounts received for them is as follows: Over 1 1/2 Tons to Rated Load Capacity 1 1/2 Tons or Less Over 1 1/2Tons Farmers Number Value Number Value Number Value (a) New Divco Trucks 32 $ 59,508.54 -- -- -- -- (b) New GMC Trucks 8 13,383.16 2 $ 9,200.00 1 $ 3,100.00 (c) New Trailer -- -- 1 1,700.00 -- -- Total 40 $ 72,891.70 3 $ 10,900.00 1 $ 3,100.00 Total $86,891.70 Over 1 1/2 Tons to Rated Load Capacity 1 1/2 Tons or Less Over 1 1/2 Tons Farmers Number Value No. Value Number Value (a) Used Divco Trucks 2 $ 950.00 -- -- -- -- (b) Used GMC Trucks 4 * 4,125.00 -- -- 1 $ 2,000.00 (c) Other Used Trucks 4 ** 2,725.00 -- -- -- -- Total 10 $ 7,500.00 -- -- 1 $ 2,000.00 Total $ 9,500.00 * Includes used Bus sold for $ 1,350.00 ** Does not include used passenger car sold for $ 650.00

19490214

© 1992-2004 VersusLaw Inc.



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