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June 24, 1952


Appeal, No. 66, Jan. T., 1952, from judgment of Court of Common Pleas of Cumberland County, Sept. T., 1947, No. 6, in case of Adam Thomas v. Hempt Brothers. Judgment affirmed.


Henry C. Kessler, Jr., with him Mark E. Garber, for appellant.

James H. Booser, with him Robert L. Myers, Jr., Myers & Myers, and McNees, Wallace & Nurick, for appellee.

Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Jones

[ 371 Pa. Page 384]


The plaintiff, an employee of the defendant partnership, filed his complaint in the Court of Common Pleas of Cumberland County seeking to recover from his employer overtime wages for a specified period, liquidated damages and counsel fees under the provisions of Secs. 6, 7 and 16 (b) of the Fair Labor Standards Act of 1938 as amended.*fn1

[ 371 Pa. Page 385]

After preliminary objections to the original complaint and also to the first amended complaint had been sustained (see 62 D. & C. 618, 626, and 74 D. & C. 213, 218), a second amended complaint was filed. Preliminary objections to that complaint were also sustained and the judgment for the defendant from which the plaintiff has appealed was automatically entered after the plaintiff had failed to file a further amended complaint within twenty days as authorized by the court's order conditionally entering the judgment for the defendant.

The complaint averred that the defendant, Hempt Brothers, is a partnership engaged in the stone quarry business with its principal place of business in Camp Hill, Pa.; and that, during the period of time covered by the complaint, the plaintiff worked for the defendant "in producing, processing, weighing and mixing sand, stones and cement and loading trucks containing concrete and [in] giving directions to [defendant's] truck drivers as to the place of delivery daily of truckloads of sand and cement (concrete) to various customers" of the defendant. The customers were the Pennsylvania Turnpike, the Harrisburg Municipal Airport, the Pennsylvania Railroad Company, the U.S. Army Depot and the U.S. Navy Depot, all of which are located within the State of Pennsylvania. The complaint further averred that, during the specified period, orders received by the company for concrete were communicated each day to the plaintiff who secured the proper number of trucks to haul the requirements of each order and was in charge of the mixing process whereby various types of concrete were processed; that he gave instructions to each mixer operator as to when to begin operation of his mixer so as to produce the material called for by the various orders; and that, when this process was completed, he filled and loaded the trucks and dispatched

[ 371 Pa. Page 386]

    them to the indicated customers. The complaint does not contain any averment that the materials processed, handled or dispatched by the plaintiff either originated or were delivered outside of Pennsylvania; however, it is readily conceded that the defendant's customers maintained facilities for handling persons or property moving in interstate commerce.

The question involved is whether the complaint states a cause of action within the provisions of the Fair Labor Standards Act. The answer depends upon whether the plaintiff, in the performance of the duties of his employment, was engaged "in commerce or in the production of goods for commerce" as contemplated by Sec. 7 (a) of the Act (29 U.S.C.A. § 207 (a) Pkt. Part). "Commerce" is defined by Sec. 3 (b) of the Act (29 U.S.C.A. § 203 (b) Pkt. Part) as meaning "trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof."

In considering whether an employee is within the coverage of the Act, it is essential to keep in mind that it is the nature of the employee's activities in the course of his work and not the character of his employer's business that determines whether the employee is engaged in commerce or in the production of goods for commerce. In Walling v. Jacksonville Paper Co., 317 U.S. 564, 571, the Supreme Court said that "The fact that all of [the employer's] business is not shown to have an interstate character is not important. The applicability of the Act is dependent on the character of the employees' work" (Emphasis supplied). Or, as stated in McLeod ...

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