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CURTIS BAY TOWING COMPANY PENNSYLVANIA ET AL. v. COMMONWEALTH PENNSYLVANIA (01/25/85)

decided: January 25, 1985.

CURTIS BAY TOWING COMPANY OF PENNSYLVANIA ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, RESPONDENT



Original jurisdiction in the case of Curtis Bay Towing Company of Pennsylvania, McAllister Brothers, Inc. and Taylor and Anderson Towing & Lighterage Co. v. Commonwealth of Pennsylvania, Department of Labor & Industry.

COUNSEL

Thomas E. Seus, Kelly, Harrington, McLaughlin & Foster, for petitioners.

Francine Ostrovsky, Assistant Chief Counsel, with her, Herbert W. Hoffman, Deputy Chief Counsel, and Charles Hasson, Acting Deputy Chief Counsel, for respondent.

Judges Rogers, Colins and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 87 Pa. Commw. Page 193]

This case presents the question of whether a recently enacted amendment to the Pennsylvania Unemployment

[ 87 Pa. Commw. Page 194]

Compensation Law (Law) requiring employers to withhold contributions from employees' wages is preempted by a provision of the federal Shipping Commissioners Act, 46 U.S.C. § 601, recodified as 46 U.S.C. § 11108, which proscribes wage withholding from seamen for the purposes of state or local taxes.*fn1 The history of this action began in November, 1983, when the Pennsylvania Department of Labor notified the petitioners that, effective January 1, 1984, they were required under Section 301.4 of the Law to withdraw 0.1% of each employee's gross wages as a contribution to the state unemployment fund. On December 1, 1983, the petitioners, tugboat owners and operators of the Port of Philadelphia, filed suit in this

[ 87 Pa. Commw. Page 195]

    court seeking declaratory and injunctive relief from the wage withholding obligations of Section 301.4. We treat the declaratory judgment action, as a petition for review addressed to our original jurisdiction. The respondent, the Pennsylvania Department of Labor and Industry, has filed preliminary objections in the nature of demurrers with which we will now dispose.

The respondent's demurrers "go to the legal merits of the original jurisdiction action. . . ." Allegheny Ludlum Steel Corporation v. Pennsylvania Public Utility Commission, 67 Pa. Commonwealth Ct. 400, 411, 447 A.2d 675, 680 (1982). We will, thus, review the issues raised by the respondent concerning the construction of the governing federal statutes and their possible preemption of Section 301.4 of the Law.

Critical to this inquiry are two federal statutes. The first, the Shipping Commissioners Act, 46 U.S.C. § 11108, ...


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