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WATERS v. SAMUEL (05/23/51)

May 23, 1951

WATERS, APPELLANT,
v.
SAMUEL



Appeal, No. 149, Jan. T., 1951, from judgment of Court of Common Pleas No. 5 of Philadelphia County, June T., 1950, No. 299, in case of James J. Waters v. Bernard Samuel, Mayor, et al. Judgment affirmed.

COUNSEL

Samuel C. Tabbey, with him Bernard L. Lemisch, and Alfred I. Ginsburg, for appellant.

James Francis Ryan, Assistant City Solicitor, with him Frank F. Truscott, City Solicitor, for appellees.

Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Bell

[ 367 Pa. Page 619]

OPINION BY MR. JUSTICE BELL

Pursuant to an ordinance of the City of Philadelphia, plaintiff was notified by an order of the Director of Public Safety dated May 29, 1950 that he would be honorably retired on his 65th birthday, which, as shown by the records of the Police Department, was June 6, 1950.

[ 367 Pa. Page 620]

Plaintiff thereupon brought mandamus proceedings against the Mayor of Philadelphia, Director of Public Safety and the Civil Service Commissioners of Philadelphia, praying the court of declare this order null and void and to restore him to the Civil Service List because (he averred) he would not be 65 years of age until June 6, 1952.

The facts are briefly as follows: On October 22, 1910 plaintiff applied for the position of patrolman and stated under oath that he was born June 6, 1885. When he was appointed a patrolman on July 12, 1911 he again swore that he was born June 6, 1885; and the date of his birth was thereupon entered in the official records of the Bureau of Police by the Chief Clerk.

Plaintiff at the trial of this case produced a baptismal certificate (which was duly certified) evidencing that he was born June 6, 1887. He testified that he never knew his true age until 1922, and that he did nothing thereafter about correcting the police records because if he were born in 1885 he could get the benefit of a two years pension. He admitted that in 1910 and 1911, when he made affidavits as to the date of his birth, he knew the date was not correct; but he justified his by the statement that nearly everybody becoming a policeman at that time added to their age. He to evade answering why he increased his age, but finally implied that it was because he had in mind he could go on pension sooner than he was entitled to. The trial judge sitting without a jury found that at the time plaintiff signed the affidavits in 1910 and 1911 he may have known his correct birthday, but that he did not believe that the City of Philadelphia had been harmed by the misstatement of facts. The trial judge then found in favor of plaintiff and ordered his reinstatement, mainly on the ground that there was no estoppel, relying on Edelman v. Boardman, 332 Pa. 85, 96, 2 A.2d 393: "Estoppel occurs only where the act

[ 367 Pa. Page 621]

    alleged to effect it has caused harm to the person asserting it because of action taken by ...


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