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LUBOLD UNEMPLOYMENT COMPENSATION CASE (03/18/65)

decided: March 18, 1965.

LUBOLD UNEMPLOYMENT COMPENSATION CASE


Appeal by claimants, from decision of Unemployment Compensation Board of Review, Nos. B-74364-D, B-74365-D, B-74366-D, B-74367-D, and B-74368-D, in re claims of Clair Lubold et al.

COUNSEL

Bruce C. Adams, for appellant.

Sydney Reuben, Assistant Attorney General, for Unemployment Compensation Board of Review, appellee.

James C. Robertson, Jack A. Riggs, Samuel A. Schreckengaust, Jr., and McNees, Wallace & Nurick, for intervening appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Watkins, J. Dissenting Opinion by Wright, J.

Author: Watkins

[ 205 Pa. Super. Page 123]

This is an appeal in an unemployment compensation case by the claimant, Clair Lubold, from a decision of the Unemployment Compensation Board of Review, denying him benefits on the ground that he was an agricultural worker.

The claimant in this case was a regular employee of the Nursery Division of the Hershey Estates and was laid off on November 30, 1961. He had been so employed for a nine-month period. The nursery is located

[ 205 Pa. Super. Page 124]

    on a tract of land consisting of approximately fifteen acres of land, of which eight to ten acres is planted in trees, shrubs and other horticultural products. Some of the nursery stock was recently purchased elsewhere and planted on the property; some of the stock had been temporarily "heeled" into the ground; most of the trees and plants had been planted and nurtured in the nursery for a number of years. The nursery supplements the stock which it grows by purchasing items from other nurseries and growers. Most of the plants sold in the year 1961 were not purchased in that year but came from stock growing at the nursery. During 1961 the nursery derived approximately Ninety Thousand ($90,000) Dollars from the sale of horticultural products. The nursery division purchased approximately Twenty Thousand ($20,000) Dollars worth of horticultural plants of which only one-third was used in the 1961 planting; the balance remained in the nursery.

The nursery also performs various gardening services such as preparation and planting of lawns, delivery of plants and shrubs, preparation of the ground for plants, seeding, planting, fertilizing, spraying and pruning; various landscaping, lawn and garden maintenance jobs and other related services. They perform many of these services on a contractual basis.

The claimant received all his instructions at the nursery from the nursery foreman to whom he reported for work. His assignments included the loading and unloading of horticultural products, planting and transplanting, heeling, weeding and other services in the care of the nursery stock and grounds. He was also assigned by the nursery foreman to various jobs away from the nursery on the property of customers consisting mainly of the delivery of stock, preparation of ...


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