Security Act, or any other law, as that phrase is used in the excerpt from the Plan last above quoted, is defined in section 1 of the Plan as 'the monthly equivalent of the total pension, old age, and disability benefits payable to the employe under the Federal Social Security Act or any other state, federal or foreign law as now in effect or hereafter amended or enacted (not including benefits paid solely be reason of dependents but including the maximum benefit to which the employe is, shall become, or upon application would become, entitled without regard to any disqualification or any reduction or loss in benefits which may result because of other income, delay in making application, or any other reason). * * *.'
An analysis of the computation of the monthly pension payment of $ 91.86 which the plaintiff is receiving from Westinghouse has been agreed upon by the parties, and is designated as Exhibit 7, annexed to the stipulation of facts.
On June 15, 1951, plaintiff acknowledged in writing that his continuous service to Westinghouse for pension purposes commenced on September 1, 1936, and that his average monthly earnings at that time (June 15, 1951) amounted to $ 652.12. (Exhibit 4 annexed to the stipulation of facts.)
Plaintiff contends that the following questions are presented for adjudication, viz.: (1) how many years of continuous service to Westinghouse had plaintiff completed at his normal retirement date; (2) is plaintiff entitled to an increment in his Westinghouse pension in an amount equal to the diminution of his Social Security payments by reason of his self-employment earnings; and (3) is defendant indebted to the plaintiff in quantum meruit or indebitatus assumpsit for patent services rendered on May 17, 19, 22, 23 and 26, 1961. The last mentioned issue (3) is not before the Court. It was not raised by the pleadings nor stated in the pretrial order. Had it been so presented, the Court would lack jurisdiction for lack of minimum required amount involved. 28 U.S.C. § 1332. We proceed to answer the remaining two questions in the light of the evidence.
Recognizing that completion of fifteen or more years of continuous service to Westinghouse is a sine qua non to his eligibility for pension, plaintiff argues that his employment with Westinghouse from March 1, 1922 to December 31, 1924, inclusive, should be 'tacked on' to his service from September 1, 1936 to June 30, 1954, inclusive, and the aggregate of those two periods treated as 'continuous service' for the purpose of computing the amount of his pension, thereby increasing his total pension under the non-contributory portion of the Plan. Plaintiff's contention in this regard lacks support in the evidence. Section 1 of the Plan defines 'Continuous Service' as used therein as 'the employe's period of unbroken regular service in the employ of the Employer, including time spent on any of the following: (1) Furlough (2) Leave of absence * * * (3) Disability (4) Involuntary separations of less than twelve (12) months * * * (subject to qualifications not here apposite) (and) (5) Voluntary separations of less than thirty (30) days * * *.' 'Involuntary separation' as used in the Plan means 'separation by layoff, release or discharge'. Plaintiff concedes that he was laid off on December 31, 1924, but contends that his layoff at that time was improper. He took no timely action to test the propriety of that layoff. Moreover, on June 15, 1951 he acknowledged in writing that his continuous service period for pension purposes commenced on September 1, 1936. That period may not now be enlarged.
Finally, plaintiff's contention that the amount of his pension from Westinghouse should replace the amount of Social Security benefits which he was required to forego by reason of excess earnings from his post-retirement self-employment must be overruled. Plaintiff attempts to estop Westinghouse from denying that it guaranteed to him that he would continue to receive, after his retirement, the equivalent of the sum of his pension and Social Security benefits as of the date of retirement. He relies upon alleged representations of Westinghouse in Exhibits 2, 2A, 2 and 5 annexed to the Stipulation of Facts. Such reliance is misplaced. Exhibit 2 is a retirement notice, dated April 8, 1954 advising plaintiff that on his normal retirement date, July 1, 1954, after continuous service from September 1, 1936, he would receive a total pension (including primary Social Security benefits of $ 85.) of $ 176.86. Attached to Exhibit 2, and referred to in the Stipulation as Exhibit 2A, is a calculation sheet showing the computation of the proposed Westinghouse non- contributory pension to which the plaintiff would become entitled, as compared with the then present Plan. The old Plan provided a Westinghouse non-contributory pension, at normal retirement date, of $ 107.45 in plaintiff's case. It stated 'this pension includes Primary Social Security Benefit. Any increase in Social Security would cause an equal reduction in pension under the Plan.' The new Plan computed plaintiff's non-contributory pension at $ 64.66, exclusive of any Social Security benefit, but listed the then current Social Security benefit figure applicable to the plaintiff as amounting to $ 85.00, with the following asterisked caveat: 'Assuming present Primary Social Security Benefit does not change. Any increase in Social Security would increase the employe's total pension.'
Exhibit 3, 'Statement of Gross Pension Distribution,' is made up of the following items:
Retirement Annuity Plan
Benefits $ 44.49
Westinghouse Pension Plan
Benefits -- Non-Contributory 20.17
Westinghouse Pension Plan
Benefits -- Contributory 27.20
Pension $ 91.86
Social Security Benefits $ 85.00
Total Pension $ 176.86
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