The opinion of the court was delivered by: WATSON
This is a petition by Joseph F. Angelovic for enforcement of his rights as a veteran against the Lehigh Valley Railroad Company under the Selective Training and Service Act of 1940, as amended, which provides in part 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 who (1) receives such certificate, (2) is still qualified to perform the duties of such position, and (3) makes application for reemployment within ninety days after he is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year-
'(B). if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority, status, and pay unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so'.
The case was tried before the Court without a jury.
Petitioner testified that he visited the respondent's office at Lehighton, Pennsylvania three times within the ninety days after his honorable discharge and talked on each occasion to Louis Sparr, assistant foreman in the respondent's Maintenance of Way Department. According to petitioner's own testimony he asked Sparr on these occasions whether he was still on the roster, to which Sparr replied, 'Yes,' and asked petitioner whether he was ready to go back to work. Petitioner answered, 'Not for a while yet' and Sparr told petitioner to come back whenever he was ready to go to work. On two of these occasions, petitioner asked Sparr for a written leave of absence. Sparr said that he could not give petitioner a written leave of absence, but told petitioner to let him know when he was ready to go to work. Sparr testified that he reminded petitioner, 'Don't forget your ninety days'. Petitioner further testified that, during this ninety day period, he was physically able to return to work but was not ready to go to work for the respondent because his mother was ill and had no one else at home to care for her. Petitioner also testified that, during this ninety day period, he worked for the East Mauch Chunk School District as a substitute physical education teacher, from September 14, 1945 to November 15, 1945, for which services he received a total of $ 394.
It further appears from the evidence that, after the ninety day period had elapsed, petitioner again visited Sparr on several occasions and, on stating his readiness to work, was employed by respondent as a laborer on March 12 1946. Petitioner continued in the employ of respondent as laborer for about one week until March 19, 1946, when petitioner bid in and secured a position as slope watchman for respondent. Petitioner continued in the employ of respondent as slope watchman for about two weeks until April 4, 1946, when he was discharged.
Petitioner is not entitled to relief under the Act unless his actions within the ninety day period after his honorable discharge are held to be an application for reemployment within the meaning of the Act.
The United States Court of Appeals for the Third Circuit, in Grasso v. Crowhurst,
held, that a request by a discharged veteran for leave of absence was an 'application for reemployment' under the Act, notwithstanding that such application did not contemplate work within the period within which the Act required the application to be made. However, in the Grasso Case, the discharged veteran asked for a leave of absence in order that he might be treated for a physical defect and, on examination by the respondent's doctor, was declared physically unfit for the job. It was later discovered that Grasso was physically fit for the job at the time he had requested the leave of absence, and, under these circumstances, the Court held that the action of the respondent and the respondent's doctor, in convincing Grasso that he was all finished in his employment, was in derogation of Grasso's rights and that Grasso should be reinstated, having made timely application. The Grasso case is distinguishable from the present one. In the Grasso case, the veteran was ready and willing to work but felt that he was not able, and was so declared to be by the respondent's doctor. In the instant case, Angelovic was able to work, but he was not ready and willing to return to work for the respondent, and preferred to and did accept other employment. Meanwhile, the respondent here stood by prepared to reinstate the petitioner and, at no time within the ninety day period refused to restore him to a position.
The petitioner is not entitled to restoration of his position by the respondent, and is not entitled to any compensation from the respondent for loss of wages, because he failed to make application for reemployment within ninety days after his honorable discharge.
From the evidence, the Court finds the following facts:
1. The petitioner, Joseph F. Angelovic, was a regular employee of the Lehigh Valley Railroad Company from October 1936 to March 21, 1941, working as a laborer in the Maintenance of Way Department during the summers up to October, 1939, and being on furlough from October, 1939 to March 21, 1941.
2. Petitioner was inducted into the United States Army on March 21, 1941, and was honorably discharged from the United ...