Dissenting Opinion by
Mr. Justice Bell:In the instant case the Agreement of December 1, 1956, between the anthracite industry and the United Mine Workers Union, as supplemented by a letter of March 12, 1958, from Thomas Kennedy, Vice President of the Union, provides for a fixed vacation period which commenced on June 28, 1958, and terminated on July 12, 1958.
Three employes are claiming unemployment compensation for the fixed vacation period which commenced and terminated as above mentioned, notwithstanding the fact that they were paid by the employer the agreed-upon vacation allowance* during the plant shutdown vacation in the above mentioned period.
Section 4(u) of the Unemployment Compensation Law, as amended by the Act of March 30, 1955, P.L. 6, §1, 43 PS §753, pertinently provides: “. . . Notwithstanding any other provisions of this act, an employe who is unemployed during a plant shutdown for vacation purposes shall not be deemed ineligible for compensation merely by reason of the fact that he or his collective bargaining agents agreed to the vacation. [However] No employe shall he deemed eligible for compensation during a plant shutdown for vacation who receives** directly or indirectly any funds from the employer as vacation allowance”
*539It is clear as crystal that the Amendment prohibits compensation to an employe during a plant shutdown for vacation if said employe receives, directly or indirectly, as these claimants did, any payments from the employer as vacation allowance. In other words, it is absolutely clear that the Legislature did not intend an employe to be entitled to unemployment compensation benefits if he received from his employer, directly or indirectly, any vacation allowance or pay.
Paragraph A of §V of Regulation 108, issued by the Bureau of Employment Security, applies to this case and is in accord with the language and spirit of the aforesaid amendment. This paragraph provides:
“V. Criteria for Determining Whether a Payment was Received with Respect to a Particular Period; Allocation of Payments. A. Where payments are received by an employe pursuant to an agreement which specifically makes such payments payable with respect to a particular day, week or other period, such agreement shall control.”
Paragraph F* of Section V of Regulation 108 relied upon by Appellee, if applied to the instant case, flies in the face of the amendatory Act and is therefore illegal and void.
The Superior Court in two recent cases aptly expressed the governing principle. In Schuster Unemployment Compensation Case, Wheatland Tube Company v. U. C. Board of Review, 186 Pa. Superior Ct. 224, 142 A. 2d 772, that Court said (page 226) :
“In Hoenstine Unemployment Compensation Case, 176 Pa. Superior Ct. 306, 309, 106 A. 2d 639 (1954), we said: 'The basic purpose of the Unemployment Com*540pensation Law. is to provide compensation to an employe during periods of idleness not created by his own fault. The intent is to insure compensation when he is unable to gain remuneration, but not to create a fund for double payments. Section 4(u) of the Act has as its purpose the prevention of payment of benefits during periods of idleness where the claimant has received money which relates thereto. Fazio Unemployment Compensation Case, 164 Pa. Superior Ct. 9, 63 A. 2d 489. This claimant received wages for the weeks he Avorked, two weeks vacation pay, and unemployment compensation for the remainder, for a total of fifty-two Aveeks. The purpose of the laAV would be subverted if claimant’s position were upheld.’ ”
In Myers Unemployment Compensation Case, 186 Pa. Superior Ct. 227, 142 A. 2d 774, the Court reiterated the principle of the Schuster opinion, supra, stating (page 232): “In Schuster Unemployment Compensation Case, filed this day, Ave again emphasized that it was not the intent of the Unemployment Compensation Law to permit a claimant to recover both unemployment compensation and wages for a vacation period, and that any interpretation of a collective bargaining agreement, or the Bureau of Employment Security rules, Avhich brings about that result is contrary to the intent of the Unemployment Compensation LaAV.”
Five to ten percent of the cases heard each year by our Court are so close that no member of the majority in any such case can confidently say “I am certain that I am right and those who espouse the opposite vieAV are wrong.” While this is not one of those cases, it is impossible for me to comprehend the rationale or the viewpoint of the majority.
The majority hold that Avhen a collectiAe bargaining agreement entered into by a union and an employer provides for a vacation period of tAVO Aveeks, Avith a fixed stipulated pay for each of these tAvo Aveeks at a total *541wage which is less than he would have received if he had worked those two weeks, such an employe thereby attains the status of an unemployed person and becomes entitled to unemployment compensation,* under an allocation formula. This is not a case for any allocation formula. The basic purpose, reason and theory of unemployment compensation is to provide compensation for employables, i.e., those persons who can work, but are involuntarily unemployed. I am convinced that the majority construction of the Amendment of 1955 not only (1) violates and nullifies the collective bargaining agreement, but even more important (2) it flies in the teeth of the Amendment of 1955, and (3) is a distortion, perversion and vitiation of the basic reason and purpose of the Unemployment Compensation Act, and (4) makes a travesty of unemployment compensation.
The vacation allowance or pay was not nominal — it was substantial, indeed it was almost as large as the wages they received when actually working.
Italics throughout, ours.
“F. Where it has been determined that a payment has been received by the claimant with respect to the particular period of inactivity in question, . . . the department shall determine the number of days or weeks to which such payment shall be allocated within such period by dividing the total amount of such payment by the individual’s regular full-time daily or weekly wage.”
Appellee could just as logically but incorrectly argue that an employe is entitled to unemployment compensation for August if he is employed under a collective bargaining agreement at $100 a week composed of an 8 hour, 5 day week, for 11 months, but (because of the well-known slackness in that particular industry) is employed during August 7 hours a day for a 5 day week at a salary of $90.