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October 16, 1956

Benjamin M. GALLO

The opinion of the court was delivered by: KIRKPATRICK

The plaintiff, a former employee of the defendant, brought this action to enforce his asserted rights under an employees' pension plan in which he was a participant. The complaint asks, among other things, for a money judgment for pension benefits accruing since he left the defendant's employ in November 1952. That phase of the case was tried to the Court with a jury. In a special verdict, the jury answered interrogatories dealing with the issue of liability only and the issue of damages was, by stipulation, submitted to the Court to be determined later without a jury. The plaintiff now moves for judgment in his favor on the verdict and for relief by way of mandatory injunction. The defendant moves to set aside the verdict and for judgment in its favor.

There is very little, if any, dispute about the essential facts of the case. In December 1950, the plaintiff, having been given, by the defendant, to understand that it had adopted a pension plan, signed a card applying for participation in the plan. The card bore the heading 'Continental Assurance Company. Group Annuity Plan Application and Payroll Deduction Card' and read in part as follows:

 'I hereby apply for participation in the Retirement Plan for which I am or may become eligible under the Group Annuity Contract issued to my Employer by the Continental Assurance Company. I agree to the deduction from my wages of such contributions as may be required of me under the Plan.'

 At about the same time the defendant entered into a contract with Continental Assurance Company, setting up the pension plan. This contract was not merely an underwriting or guarantee by Continental of an obligation of the defendant to its employees. It was a direct assumption of liability by Continental for the carrying out of various phases of the plan, including the payment of pension benefits to the employees.

 Thereafter, the defendant, under the authorization contained in the card, deducted $ .57 each week from the plaintiff's wages and continued to do so until he left its employ. The plaintiff, of course, had not seen and, as a matter of fact, never did see the 'master' contract between the defendant and Continental.

 On June 13, 1952, the defendant distributed to its employees a booklet accompanied by a letter. The letter advised the employees that the pension plan, in effect since December 1, 1950, had been approved by the Internal Revenue Department and went on to say, 'we are pleased to enclose a booklet which describes in question and answer form your Pension Plan. We have attempted to take a pension plan with its legal complications and reduce it to a form which all of us as laymen could easily understand.' The booklet was simply a series of questions and answers which covered most of the features of the plan in which an employee would be interested.

 There was, however, one omission out of which this lawsuit grew. The booklet referred to 'normal' retirement at age 65 and then said, 'Early retirement can take place at any time after a Participant reaches 55 years of age provided that he then has at least 15 years service.' It failed, however, to say anything about the clause in the master contract which provided that an employee could get the benefit of an early retirement only if he retired with the consent of the employer. Although the booklet gave precise figures as to benefits upon normal retirement, it did not state what amounts would be paid upon early retirement.

 On November 7, 1952, the plaintiff's wife delivered to the defendant a letter stating that the plaintiff intended to exercise his right under the plan to retire early, on November 20 next. On the day this letter was delivered, the plaintiff's boss requested him, as a favor, to stay on the job until November 26, which the plaintiff agreed to do. He was at work on November 20. On that day there was delivered to his house a letter from the defendant informing him that, under the plan, early retirement depended upon the consent of the employer and asking for information as to the plaintiff's age, circumstances and plans. The plaintiff continued to work until November 26, at which time he left the defendant's employ permanently.

 The interrogatories submitted to the jury and their answers were as follows:

 '1. Would an employee of Howard Stores of ordinary carefulness and intelligence have regarded the booklet, Plaintiff's Exhibit 1, as the contract between Howard Stores and himself? Answer: Yes.

 '2. When Mr. Gallo left the employ of Howard Stores did he believe that he was entitled to a pension under the Early Retirement sentence in the booklet, Plaintiff's Exhibit 1? Answer: Yes.

 '3. If your answer to Question No. 2 is 'Yes', was he justified in such belief? Answer: Yes.'

 The plaintiff bases his case upon two ...

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