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PEARLIE M. PARKER v. COMMONWEALTH PENNSYLVANIA (03/31/88)

decided: March 31, 1988.

PEARLIE M. PARKER, RICHARD W. BITTINGER, WAYNE STINE AND LEONARD SPIELMAN, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, AND HARRIS L. WOFFORD, JR., SECRETARY OF LABOR AND INDUSTRY, AND KNOUSE FOODS COOPERATIVE, INC., MOTTS U.S.A., W. E. BITTINGER CO., INC., JOHN F. COPE CO., INC., FURMAN FOODS, INC., BENJAMIN LIPITZ CO., KRESGE FARM FOODS, INC., AND WELCH FOODS, INC., RESPONDENTS



Original Jurisdiction in the case of Pearlie M. Parker, Richard W. Bittinger, Wayne Stine and Leonard Spielman, on behalf of themselves and all others similarly situated v. Commonwealth of Pennsylvania, Department of Labor and Industry and Harris L. Wofford, Jr., Secretary of Labor and Industry, and Knouse Foods Cooperative, Inc., Motts U.S.A., W. E. Bittinger Co., Inc., John F. Cope Co., Inc., Furman Foods, Inc., Benjamin Lipitz Co., Kresge Farm Foods, Inc., and Welch Foods, Inc.

COUNSEL

Donald Marritz, with him, Carolyn Carter and David Woodward, for petitioners.

Gregory R. Neuhauser, Senior Deputy Attorney General, with him, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent, Commonwealth of Pennsylvania, Department of Labor and Industry.

Alan R. Boynton, Jr., with him, John S. Oyler and H. Lee Roussel, McNees, Wallace & Nurick, for respondents, Knouse Foods Cooperative, Inc., Bittinger Co., Inc., John F. Cope Co., Inc., Furman Foods, Inc., Benjamin Lipitz Co., Kresge Farm Foods, Inc., and Welch Foods, Inc.

David F. Abernethy, with him, Kathryn H. Levering, Drinker, Biddle & Reath, for respondents, Cadbury Schweppes, Inc. and its Motts, U.S.A. division.

Judges MacPhail and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 115 Pa. Commw. Page 96]

This is a class action within our original jurisdiction seeking a declaratory judgment on the constitutionality of Section 402.5 of the Unemployment Compensation Law,*fn1 as well as an injunction against the further application

[ 115 Pa. Commw. Page 97]

    of said statute. The petitioners are Pearlie M. Parker, Wayne Stine and Leonard Spielman, who bring this action on behalf of themselves and all workers who have been determined to be or may, in the future, be determined to be seasonal workers in the fruit and vegetable food processing industry.*fn2 The respondents are the Department of Labor and Industry (Department) and the Secretary of the Department of Labor and Industry, (government respondents) and those companies which are engaged in the fruit and/or vegetable food processing industry in the Commonwealth (private respondents). We are here concerned with preliminary objections filed by both the government and private respondents.

Background

Section 402.5 provides in pertinent part:

Eligibility of Seasonal Workers in fruit and vegetable food processing

(a) Notwithstanding any other provision of this act with respect to service performed in a 'seasonal operation' or 'seasonal industry', as defined in this section, benefits shall not be paid to a seasonal worker, based on such services for any week of unemployment occurring outside of the normal seasonal period of operation, provided there is a contract or reasonable assurance that such seasonal worker will perform services in that seasonal industry in his next normal seasonal period. However, if upon presenting himself for work in his next normal seasonal period, the individual is not offered an opportunity to perform such services, his claims for unemployment compensation shall be accepted retroactively to

[ 115 Pa. Commw. Page 98]

    the time the individual's benefits (based on seasonal and nonseasonal wages) would have commenced but for this subsection.

(b) Upon written application filed with the department by an employer engaged in a 'seasonal industry' as defined in this section, the secretary shall determine, and may thereafter redetermine, in accordance with the rules and regulations of the department, the normal seasonal period during which workers are ordinarily employed for the purpose of carrying on seasonal operations in the seasonal industry in which such employer is engaged. An application for such determination shall be made on forms prescribed by the department. Such application must be made at least twenty (20) days prior to the estimated beginning date of the normal seasonal period for which the determination is requested. Simultaneously with the filing of the application, the employer shall conspicuously display on the employer's premises, in a sufficient number of places, a copy of the application.

(c) An employer determined, in accordance with the provisions of this section, to be a 'seasonal operation' or 'seasonal industry,' as defined in this section, shall be required to conspicuously display notices of the seasonal determination on its premises in a sufficient number of places as will fairly advise its employes of the estimated beginning and estimated ending dates of its normal seasonal period. Such notices shall be provided by the department.

(e) Any determination issued under the provisions of this section shall be subject to review in

[ 115 Pa. Commw. Page 99]

    the same manner and to the same extent as all other determinations issued under this act.

(h) For the purposes of this section, the following definitions shall apply:

(1) 'Fruit or vegetable food processing operation' means those services performed in connection with commercial canning or commercial freezing of fruits and vegetables.

(2) 'Normal seasonal period' means the normal seasonal period, as determined in accordance with subsection (b) of this section, during which workers are ordinarily employed for the purpose of carrying on seasonal operations in each seasonal industry, as defined in this section.

(3) 'Seasonal industry' means an industry, establishment or process within an industry which, because of climatic conditions making it impractical or impossible to do otherwise, customarily carries on fruit or vegetable food processing operations, or both, only during a regularly recurring period of one hundred eighty (180) days of work or less in a calendar year.

(4) 'Seasonal operation' means an operation in which it is customary for an employer engaged in a seasonal industry as defined in paragraphs (1) and (3) of subsection (h) of this section, to operate all or a portion of its business during a regularly recurring period of one hundred eighty (180) days of work or less for a normal seasonal period during a calendar year. An employer may be determined to be engaged in a seasonal industry as defined in this section, with respect to a portion of its business, only if that portion, under the usual and customary practice in the industry, is identifiable as a functionally distinct operation.

[ 115 Pa. Commw. Page 100]

(5) 'Seasonal worker' means a worker who performs commercial canning or commercial freezing services for a fruit or vegetable food processing operation for less than one hundred eighty (180) days of work.

Prior to the enactment of this statute, workers whose wages were attributable solely to employment in seasonal fruit and vegetable food processing operations were able to collect unemployment compensation benefits during the off-season period (i.e., those weeks occurring outside the normal seasonal period of operation), even though they may have had contracts or reasonable assurances that they would be performing services in that industry in the season following thereafter.

The petitioners' claims in this action can be summarized as follows:

(a) Section 402.5 is a 'special' or 'local' law prohibited by Article III, Section 32 of the state constitution.

(b) Section 402.5 was enacted in violation of Article III, Section 1 of the state constitution, because its subject and purpose was not clearly expressed in the title of the bill which has its genesis in House Bill 1042, 1985 Session.

(c) Section 402.5 was enacted in violation of Article III, Section 3 of the State constitution, since the original version of House Bill 1042 was so altered and amended as to entirely change its original purpose.

(d) Section 402.5 was enacted in violation of Article III, Sections 2 and 4 of the state constitution, because the version of House Bill 1042 which passed the General Assembly, (Printers No. 1984), was never referred to a House Committee and was not considered by the House on three separate days.

[ 115 Pa. Commw. Page 101]

(e) By reason of the procedures provided for an employer's obtaining a seasonal determination and review of such a determination, Section 402.5, on its face and as applied, violates petitioners' rights under the state Administrative Agency Law, the federal Social Security Act, Article V, Section 9 of the state constitution and the due process provisions of the state and federal constitutions.

(f) Section 402.5 deprives affected workers of equal protection of the laws, in violation of both the state and federal constitutions.

(g) Section 402.5 deprives affected workers of substantive due process, in violation of both the state and federal constitutions.

(h) Section 402.5 improperly delegates legislative power to private parties, in violation of Article II, Section 1 of the state constitution.

In addition to all of these claims, the petitioners contend that the Department has not been, and is not now, administering Section 402.5 according to its express requirements.

I. Jurisdiction

The private respondents initially contend that (1) jurisdiction for declaratory relief is unavailable because (a) the matter involves disguised appeals from orders of the Unemployment Compensation Board of Review (Board) and (b) this matter is within the exclusive jurisdiction of an administrative tribunal other than a court; (2) jurisdiction for injunctive relief is unavailable because petitioners have failed to exhaust administrative remedies available to them; and (3) this Court should not entertain this action since there are appeals pending before it involving the constitutional issues raised herein, with each of the petitioners being a party to at least one of

[ 115 Pa. Commw. Page 102]

    them. In addition, both the private and the government respondents contend that there is no actual controversy between themselves and the petitioners.

Private respondents' first argument involves Section 7541(c) of the Declaratory Judgment Act,*fn3 which provides that declaratory relief shall not be available with respect to any:

(2) Proceeding within the exclusive jurisdiction of a tribunal other than a court.

(3) Proceeding involving an appeal from an order of a tribunal.

Concerning the claim regarding Section 7541(c)(3), it is clear that the purpose of this subsection is to prevent the use of a declaratory judgment action as a vehicle for collaterally attacking a decision of an administrative tribunal. Here, however, the petitioners are not collaterally attacking the prior determinations of the Department's administrative tribunals that they were ineligible for benefits under Section 402.5. Rather they seek purely prospective relief in the form of a declaration that Section 402.5 and action taken thereunder is unconstitutional, justifying an injunction against future denial of benefits pursuant to said statute. Thus, the petition cannot be classified as a "disguised appeal" from the prior orders of the Department's administrative tribunals.

We must, however, agree with the private respondents' contention that the seventh count of the petition involves matters which are within the exclusive jurisdiction of the Department's administrative tribunals. While an administrative agency may not have exclusive jurisdiction over matters involving substantial constitutional questions as to the basic validity of its enabling legislation, Myers v. Department of Revenue, 55 Pa. Commonwealth Ct. 509,

[ 115 Pa. Commw. Page 103423]

A.2d 1101 (1980), the seventh count of the petition clearly does not involve any direct constitutional attack on the provisions of Section 402.5 authorizing denial of benefits to seasonal workers in the fruit and vegetable food processing industry during the off-season period nor on the procedures provided therein for seasonal determinations and review thereof. Rather the claims raised therein involve the construction and administration of the statute by the Department and its administrative tribunals. They can be summarized as follows:

(a) The Department does not have and has not proposed any rules or regulations that are relevant to or provide a rational basis for the resolution of any factors critical to the issues which must be decided in its determinations under Section 402.5.

(b) The government respondents do not require that employers make timely applications and have never rejected an application as being untimely, in spite of the fact that many have been filed less than 20 days prior to the start of the applicant's alleged 'normal seasonal period'.

(c) The application for seasonal determination does not pose questions or elicit information which would enable the Department to make a rational decision based on substantial evidence, on the issues critical to determinations under Section 402.5.

(d) The Department and its administrative tribunals do not determine whether or not a worker fits the definition of seasonal worker; rather they assume that every claimant is a 'seasonal worker' if he or she has worked for a seasonal employer during a 'normal seasonal period', without determining if the worker, in fact, performed canning or freezing services or

[ 115 Pa. Commw. Page 104]

    did other work not within the statutory definition.

(e) The Department considers a claimant to be a 'seasonal worker' and ineligible for benefits even if he or she performs seasonal work for 180 days a year or more, in all, but less than 180 days for any ...


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