McNear v. Director of Division of Employment Security
McNear v. Director of Division of Employment Security
Opinion of the Court
This.action of contract was brought in the Municipal Court, of the City of Boston under the employment security law, G. L. (Ter. Ed.) c. 151A, § 18, as appearing in St. 1941, c. 685, § 1, to recover alleged overpayments of contributions made by McNear Body Co. Inc. and McNear-Nash, Inc., between January 1, 1947, and July 17, 1947, amounting to $1,352.39. After a finding for the plaintiff, the Appellate Division dismissed a report, and the director appeals. .
. The cáse presented is in substance this: Prior to January 1, 1947, Egerton B. McNear, the plaintiff, as an individual, operated a business which consisted of selling and servicing automobiles and repairing automobile bodies. Because of favorable experience, he was entitled to a reduced contribu
During the earlier part of the period in question from January 1, 1947, to May 22, 1947, G. L. (Ter. Ed.) c. 151A, § 14, subsection '(c), as appearing in St. 1945, c. 516, was in force. This subsection made express provision for the inheritance by a successor employing unit of the merit rating established by its predecessors in certain specified instances, none of which includes a case like the present where two new employing units share as successors of the employing enterprises of the former employer or employers. Before the enactment of the act of 1945 a provision for the inheritance of merit ratings had been inserted by St. 1943, c. 534, § 1A, into c. 151 A, § 14,'as subsection (c). This subsection (c) ■was similar in form to the subsection (c) appearing in the act of 1945, but contained fewer specified instances where Inheritance of merit ratings was expressly provided for. Before the statute of 1943 there had been no provision for "the inheritance of merit ratings by successor employing units. This court held that while the law was in this condition, before the introduction of any subsection (c), and
To sum up what has been said: The great weight of authority allows the transfer of merit ratings to a successor employing unit only where the successor takes over all or substantially all of the employing enterprises of its predecessor’ or predecessors. Our own statutes have always been consistent with this rule, and the present statute, G. L. (Ter. ■Ed.) c. 151A, § 14, subsection (c), as appearing in St. 1949, c. 740, § 2, following the 1947 act, adopts it for all. cases of transfer of merit rating. Before we had any statute on the
On May 22, 1947, St. 1947, c. 440, being declared an emergency law, took effect by approval of the Governor. G. L. (Ter. Ed.) e. 4, § 1. As previously stated, G. L. (Ter. Ed.) c. 151A, § 14, subsection (c), as appearing in the act of 1947, provides for the transfer of merit ratings only to a successor who takes over "all of the employing enterprises” of the predecessor employer or employers. Neither of the alleged successor corporations complied with this requirement, and so the plaintiff cannot recover any sums contributed by either of them for the period from May 22,1947, until July 17, 1947.
It has become unnecessary to consider whether the corporations could make valid assignments of their claims to the plaintiff, or the effect of the retroactive provisions of the act of 1947, or whether it sufficiently appears that the alleged successor employing units complied with the requirements of subsection (c) of notice of the transfer of the employing enterprises or of guaranty of payment of all contributions required of the alleged predecessor employer.
Order of Appellate Division reversed.
Judgment for the defendant.
Cartersville, Candlewick Inc. v. Huiet, 204 Ga. 609. Billett v. Gordon, 389 Ill. 454. Ned’s Auto Supply Co. v. Unemployment Compensation Commission, 313 Mich. 66. El Queeno Distributing Co. v. Christgau, 221 Minn. 197. Seavey Hardware Co. Inc. v. Riley, 95 N. H. 502. Auclair Transportation, Inc. v. Riley, 96 N. H. 1. Morristown Electrical Supply Co. v. State, 4 N. J. Super. 216. Eiber Realty Co. v. Dunifon, 84 Ohio App. 532. Matter of Hinzmann & Waldmann, Inc. 274 App. Div. (N. Y.) 1009. Canada Dry Bottling Co. of Utah v. Board of Review, - Utah, - (223 Pac. [2d] 586). Surgical Supply Center, Inc. v. Industrial Commission of Utah, -Utah, - (223 Pac. [2d] 593). Contra, Indiana Employment Security Division v. Ponder, 121 Ind. App. 51; Burlington Truck Lines, Inc. v. Iowa Employment Security Commission, 239 Iowa, 752; Royal Jewelers Co. of Knoxville v. Hake, 185 Tenn. 254; Dallas Liquor Warehouse No. 4 v. State, (Texas Civ. App.) 213 S. W. (2d) 147; Texas Unemployment Compensation Commission v. General Engineering Corp. (Texas Civ. App.) 213 S. W. (2d) 151. But compare White v. State, (Texas Civ. App.) 197 S. W. (2d) 389.
Reference
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- Egerton B. McNear v. Director of the Division of Employment Security
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