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MICKSHAW v. COCA COLA BOTTLING CO. (01/12/50)

January 12, 1950

MICKSHAW
v.
COCA COLA BOTTLING CO., INC., OF SHARON, PENNSYLVANIA



COUNSEL

Philip E. Brockway, Brockway, McKay & Brockway, Sharon, for appellant.

John V. Wherry, Grove City, Hiram M. Drake, Mercer, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Fine. JJ.

Author: Dithrich

[ 166 Pa. Super. Page 149]

DITHRICH, Judge.

This is an action in assumpsit brought to recover the difference in pay between what plaintiff received for his military service in World War II and what he would have received had he continued to work for defendant.

On October 1, 1940, the following article appeared in the Sharon Herald:

'Coca-Cola Firm to Pay All Draftees

'The Coca-Cola Bottling Co., Inc. of Sharon to-day took a place among the outstanding patriotic firms of the Shenango Valley.

'William Feinberg, Manager, announced that any employee called to the colors through the conscription law will not lose a cent in wages. The company is prepared to pay the difference between the government wages and the amount the employee received before he went to camp.

'Feinberg said this ruling will protect every man employed by the company and the 'pay while away' plan will be continued as long as the man is in service.

'The announcement, made to employees today, gives them a more optimistic view on the approaching draft.

[ 166 Pa. Super. Page 150]

If called, they will be able to leave with knowledge that dependents will continue to receive customary income as long as they are away.'

Plaintiff testified that Feinberg, manager and secretary of the defendant, showed the article to him and two of the three other employees liable to be conscripted, stating '* * * that he was going to take care of us when we went into the service, that he would pay the difference between what we made at the Coca Cola Company and what the government paid us.'

Plaintiff continued in defendant's employ for two years. Then in October 1942, having received notice to report for his Selective Service physical examination, he enlisted in the Coast Guard and served with that branch some 37 months. He returned from the service and resumed working for defendant in December 1945. In May 1947 he left the employ of defendant, and in September of that year first made demand for payment for those years during which he was in service. He said the reason for the delay was that since he had returned to the employ of defendant he was afraid that demand for the difference in pay during his absence in the service would imperil his job. His claim was for $3,588. Upon trial the jury awarded him $1,000. From the denial of motions for a new trial and for judgment n.o.v. defendant appeals.

The questions involved, substantially as stated by appellant, are: 1. Was there any consideration for the alleged promise? 2. Did Feinberg have authority to bind the corporation? 3. Was a definite amount proven to be due? 4. Did the changes in the Selective Training and Service Act, 50 U.S.C.A.Appendix, ยง 301 et seq., between 1940 and 1942 affect the contract? We shall answer them in that order as did the learned court below.

If the parties entered into a valid, informal contract, it is clear that it must be in the nature of a unilateral contract. ...


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