250 F2d 37 Gallo v. Howard Stores Corporation

250 F.2d 37

Benjamin M. GALLO, Appellant,

No. 12239.

United States Court of Appeals Third Circuit.

Argued Nov. 6, 1957.
Decided Dec. 3, 1957.
Rehearing Denied Dec. 19, 1957.

Paul M. Goldstein, Philadelphia, Pa., (Herman Moskowitz and Stark & Goldstein, Philadelphia, Pa., on the brief), for appellant.

Daniel Mungall, Jr., Philadelphia, Pa. (Stradley, Ronon, Stevens & Young, Philadelphia, Pa., on the brief), for appellee.

Before MARIS, KALODNER and STALEY, Circuit Judges.


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This is an appeal by the plaintiff from a judgment n.o.v. entered by the District Court for the Eastern District of Pennsylvania in favor of the defendant in a suit which the plaintiff had brought against the defendant, his former employer, to enforce asserted rights to a pension under an employee's pension plan in which he was a participant. The facts are fully stated in the opinion filed by Chief Judge Kirkpatrick of the District Court, 145 F.Supp. 909, and need not be repeated here. Suffice it to say that the sole question is whether the plaintiff was entitled to exercise a right of early retirement without the defendant's consent as he asserts.


The trial judge submitted to the jury three interrogatories upon this question, all of which were answered in the plaintiff's favor but which the district court subsequently concluded, for reasons set out in Chief Judge Kirkpatrick's opinion, should not have been submitted. The court held that on the undisputed evidence the plaintiff failed to prove a contract entitling him to a pension upon early retirement without the consent of the defendant. The court further held that the plaintiff had also failed to prove that prior to receiving notice from the defendant that its consent was necessary to early retirement he had changed his position to his detriment on the faith of defendant's earlier representations which did not mention the necessity for such consent. The court accordingly held that the plaintiff had not established an estoppel which would bar the defendant from denying liability.


We have carefully considered the plaintiff's contentions that the district court erred in these rulings but we think that they were correct for the reasons stated in Chief Judge Kirkpatrick's opinion with which we are in full accord and to which we need add nothing.


The judgment of the district court will be affirmed.