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Litwicki v. Pittsburgh Plate Glass Industries

decided: December 11, 1974.

FRANK S. LITWICKI
v.
PITTSBURGH PLATE GLASS INDUSTRIES, INCORPORATED FRANK S. LITWICKI, APPELLANT; PITTSBURGH PLATE GLASS INDUSTRIES, INCORPORATED, APPELLANT



Appeal from the United States District Court for the Western District of Pennsylvania D.C.; Civil No. 70-51.

Forman, Aldisert and Rosenn, Circuit Judges.

Author: Rosenn

Opinion OF THE COURT

ROSENN, Circuit Judge

This appeal presents the question whether benefits under a funded noncontribution pension plan are seniority rights which, by statute, a private employer must accord returning veterans as though they had remained on the job during the period of their military service. See Selective Training and Service Act of 1940, ch. 720, § 8, 54 Stat. 890, as amended, Selective Service Act of 1948, ch. 625, § 9, 62 Stat. 614, 50 U.S.C. App. § 459 (1970) [hereinafter referred to as the "Act"].

The plaintiff, a veteran represented by the United States Attorney pursuant to 50 U.S.C. App. § 459(d) (1970), brought this action to secure pension benefits which he alleges are wrongfully being denied him by his employer, defendant Pittsburgh Plate Glass Industries, Incorporated (PPG). Specifically plaintiff claims that PPG, both in determining whether his pension vested and in computing the amount of his pension benefits, must give him "continuous service" credit for the entire period he spent in military service. On cross-motions for summary judgment, the United States District Court for the Western District of Pennsylvania denied defendant's motion and entered summary judgment for the plaintiff, disposing of the case as follows:

(1) For purposes of determining whether plaintiff's pension vested, plaintiff is entitled to "continuous service" credit for the entire length of his military service.

(2) For purposes of computing the amount of plaintiff's pension, plaintiff is entitled to "continuous service" credit only for the portion of his military service which coincided with open hostilities during the Korean War.

Plaintiff appealed and PPG cross-appealed.

The facts have been stipulated and are not in dispute. Plaintiff's first tour of duty in the armed forces of the United States extended from January 27, 1947, until June 14, 1948. He initially became an employee of PPG on January 22, 1951, and continued in its employ until February 2, 1954, when he volunteered during the Korean War for additional military service. This second tour of duty ended on November 26, 1957, after which plaintiff promptly returned to employment with PPG. Plaintiff remained in PPG's employ until September 29, 1969, the date of his retirement.

Under the pension agreement*fn1 between PPG and plaintiff's union, an employee must accumulate ten years of "continuous service" before his pension vests. "Continuous service" is computed according to the method set forth in Part I, section 3(B)(1) of the pension agreement:

Effective for the calendar year 1964 and thereafter, the number of hours actually worked as an Employee in the plants during any calendar year shall be divided by 125; the resulting quotient (rounded off to the nearest integer) shall constitute the number of 1/12 ths of a year of continuous service for which the Employee shall be credited for such calendar year; provided, however, that an Employee shall not receive continuous service credit of more than one year in any calendar year. Except [for certain military service, union activity, temporary service in a supervisory or salaried position, jury duty, and absence caused by work-related injury or disease], no continuous service shall be credited for any period not actually worked as an Employee in the plants.

For the period 1950 through 1963,

continuous service in any calendar year shall be credited at the rate of 1/12 of a year for every full 135 hours actually worked as an Employee in the plants during such calendar year, provided, however, that an Employee may not receive continuous service credit of more than one year in any one calendar year. Except [for certain military service, union activity, temporary service in a supervisory or salaried position, and, after 1954, jury duty and absence caused by work -related ...


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