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VINCENTI UNEMPLOYMENT COMPENSATION CASE (12/16/65)

decided: December 16, 1965.

VINCENTI UNEMPLOYMENT COMPENSATION CASE


Appeal by claimant, from decision of Unemployment Compensation Board of Review, No. B-90615, in re claim of Arthur Vincenti.

COUNSEL

Kim Darragh, with him Meyer, Darragh, Buckler, Bebenek & Eck, for appellant.

Sydney Reuben, Assistant Attorney General, with him Walter E. Alessandroni, Attorney General, for Unemployment Compensation Board of Review, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Watkins, J.

Author: Watkins

[ 207 Pa. Super. Page 85]

This is an unemployment compensation case in which the claimant, Arthur Vincenti, was denied benefits by the compensation authorities on the ground that his base year earnings were insufficient. He had been employed for a period of eight weeks and one day by W. A. Morten, a landscape gardener in planting sod, trees and shrubs at new home sites. This was held to be agricultural labor and was excluded from his earnings. If it had been added to his earnings he would qualify for benefits. This appeal followed.

The compensation authorities held him to be an agricultural laborer largely because of this Court's ruling in the Lubold Unemployment Compensation Case,

[ 207 Pa. Super. Page 86205]

Pa. Superior Ct. 122, 208 A.2d 3 (1965), where we held the claimant to be an agricultural worker where he was employed by a nursery under Art. I, § 4 (1) (4) (1) (a) and (d) of the Unemployment Compensation Act, Act of December 5, 1936, P. L. (1937) 2897, 43 PS § 753.

We carefully pointed out in that case, at p. 127: ". . . the question depends on the facts of the individual case and that it is the nature of the work which determines whether the employee is engaged in agricultural labor and not the uses to which the product of his labor are put." See Wolfe Unemployment Compensation Case, 185 Pa. Superior Ct. 413, 138 A.2d 174 (1958).

The present case is clearly distinguishable from the Lubold case. In that case the nursery occupied eight to ten acres of growing ground; trees, shrubs, plants and all kinds of horticultural products were grown and cultivated for sale. Some of the plants had been there from six months to six years; that bulbs, ivy, privet, liners, roses and some annuals were grown on the nursery property and in the greenhouse. The Board in the Lubold case found as a fact: "During the calendar year 1961, the Nursery Division of Hershey Estates purchased approximately $20,000 worth of horticultural plants; the total of charges for plant materials made to its customers was approximately $90,000; labor and equipment charges amounted to approximately $40,000; and only approximately 33% of the $20,000 purchases was used in 1961 planting."

In the instant case, finding of fact four held that: "4. The claimant worked for W. A. Morten, Landscape Gardener, Coraopolis, Pennsylvania, from April 1964 to June 15, 1964 as a laborer doing pick and shovel work ...


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