208 F2d 900 Mitchell v. Mercer Water Co

208 F.2d 900




No. 11126.

United States Court of Appeals Third Circuit.

Argued Dec. 10, 1953.

Decided Dec. 17, 1953.

As Amended Dec. 24, 1953.

Lee C. McCandless, Butler, Pa., for appellant.

E. Gerald Lamboley, Washington, D.C. (Stuart Rothman, Solicitor, Bessie Margolin, Chief of Appellate Litigation, Washington, D.C., Ernest N. Votaw, Regional Atty., Philadelphia, Pa., on the brief), for appellee.

Before KALODNER, STALEY and HASTIE, Circuit Judges.


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The questions presented are (1) whether operating, maintenance and clerical employees employed interchangeably by a gas company and a water company, which furnish gas and water to industrial concerns for use in manufacturing products for interstate commerce and receive gas flowing from out of the State, are engaged 'in commerce or in the production of goods for commerce' within the meaning of the Fair Labor Standards Act of 1938, as amended,1 and (2) whether such gas company or water company, operating as a public utility under the Public Utility Law of the Commonwealth of Pennsylvania2 is within the 'retail or service establishment' exemption provided in Section 13(a)(2) of the Act. The United States District Court for the Western District of Pennsylvania ruled in the affirmative on the first question and in the negative on the second, and we are in accord with its disposition for the reasons so well stated in the opinion of Chief Judge Gourley, 112 F.Supp. 656.


The Order of the District Court will be affirmed.

1 29 U.S.C.A. § 201 et seq.

2 66 P.S. § 1102.