Terito v. John S. Swift Co., Inc.
| Decision Date | 20 November 1981 |
| Citation | 444 N.Y.S.2d 423,111 Misc.2d 424 |
| Court | New York Supreme Court |
| Parties | Dominick TERITO, Plaintiff, v. JOHN S. SWIFT CO., INC., the Retirement Committee of John S. Swift Co., Inc., an Unincorporated Association Consisting of Hamden M. Swift, President, Leonard T. Recker, Sr., H. L. Faeber & C. H. Schoelhamer, the Initials of the First and Middle Names Being True, Although the Full First and Middle Names of Such Persons Being Unknown to the Plaintiff & Hamden M. Swift, as Trustee of the Retirement Fund of John S. Swift, Co., Inc., Defendants. |
Neil L. Kanzer, Richmond Hill, for plaintiff.
Patterson, Belknap, Webb & Tyler, New York City, for defendants.
In this action the plaintiff, Dominick A. Terito, a former employee of the defendant John S. Swift Co., Inc., seeks a declaratory judgment concerning his rights to a company pension after his services were terminated. The plaintiff also seeks money damages. The defendants deny the material allegations of the complaint and have interposed five affirmative defenses, the first four on procedural grounds while the last defense rests on the doctrine of unclean hands.
The plaintiff argues that he has a vested interest in the pension plan of his former employer and asserts that he has been deprived of this interest by the arbitrary and capricious actions of the defendants herein. The defendants, on the other hand, contend that plaintiff committed "willful misconduct financially injurious to the company" and forfeited the rights to any benefits under the terms of the company's pension plan.
Plaintiff is 57 years old and was employed by the defendant-corporation for 35 years. He was hired initially by the corporate-defendant in September of 1941 at the age of 17 as a messenger. Thereafter, he received several promotions and when he was drafted into the armed forces in February of 1943 he was employed by the corporation as an assistant press operator. In January of 1946, upon his discharge from the service, he returned to the corporate-defendant where he was subsequently promoted to the position of pressman. In 1970 he shifted from day to night tours, working the 5:00 P.M. to 12:45 A.M. shift. Also of significance is the fact that apart from the incident in question the plaintiff was never demoted or suspended and on numerous occasions received periodic raises based on merit. During the entire course of his employment the plaintiff's salary was determined on the basis of a specified hourly rate and he was expected to "punch the clock" when reporting to and leaving from work.
Plaintiff testified that on Friday, August 22, 1975, as was his practice, he reported to work fifteen minutes early at 4:45 P.M. in order to change into his work clothes and be at his machine at 5:00 P.M. According to the plaintiff's testimony, his wife was out for the evening attending a card party and his son, who suffered from epilepsy, was at home alone. At approximately 8:30 P.M. the plaintiff telephoned his son who indicated that he was not feeling well. Plaintiff then stated that he told his son that he would call back later. At approximately 11:30 P.M. the plaintiff once again telephoned his son who stated that he did not feel well and was about to have a seizure. Unable to find his immediate supervisor, Mr. Milo (who it appears had already left due to a family emergency), the plaintiff left work early without punching out and arrived home at approximately midnight. Unbeknownst to the plaintiff, the plant manager, Mr. Recker called the plant to check up on the night shift and discovered that all but two of the approximately 35 employees had left work early. The following Monday morning Mr. Recker informed the plaintiff's supervisor that there was to be no pay for those who left work early the previous Friday. After a day or two of deliberation, the plant manager determined that the services of approximately ten of the night shift employees, including the plaintiff, would be terminated. After permitting the plaintiff to take a brief vacation with pay, the plant manager informed him that his services were terminated, but that he would be entitled to a pension because of his many years of service.
On August 28, 1975 the petitioner signed a termination statement in order to receive that salary due him and for security clearance. The statement indicated that he was discharged for cause on August 26, 1975.
Mr. Milo, plaintiff's immediate supervisor and foreman, testified that upon his return to the job on Monday, August 25th, he discovered that all the work he distributed to his employees was completed. He stated that he had departed early on the night in question because he had learned from his sister-in-law that his wife had been mugged.
Plaintiff admitted that he and his fellow employees had been warned by the plant manager not to leave work early or to have another employee punch their time card. Additionally, on the time clock a printed warning was posted, stating as follows:
The plant manager also posted a handwritten warning stating "If you do not wish to work 7 1/2 hours per day, please inform me and I think I can find a replacement for you." Neither the oral nor the printed or written warnings gave any notice that punching out early could result in the termination of vested pension benefits. In fact, there was testimony that an employee who punched in late was not always docked for lateness by his supervisor. The testimony also disclosed that on more than one occasion a certain employee was permitted to punch in and out for his fellow workers with the consent of his supervisor. The testimony revealed a long history of these lamentable deficiencies in the supervision, control and discipline of employees at the plant level. A varied and inconsistent application of plant rules was the responsibility of the employer, not this pressman. The toleration of these long time operational deficiencies was unexplained except, perhaps, for the conceded concern over possible union response to tougher employer action, given the fact that there had been some labor problems.
Despite repeated efforts, both oral and written, plaintiff was unable to get any information concerning his entitlement to pension benefits. It was only after plaintiff wrote to his congressman some three years after the termination of his services that he learned that the trustee of the retirement fund and the members of the retirement committee found that he had forfeited any interest he possessed in the company pension plan. Plaintiff further testified that he received a retirement booklet not from his employer but from a fellow employee and that he was afforded no hearing concerning the termination of his pension rights.
The pertinent provision of the pension plan in question is Article IV, Section 4, which reads as follows:
...
To continue reading
Request your trial