41 A.2d 879 | Pa. Super. Ct. | 1944
Argued December 14, 1944. This is assumpsit by a police officer against the City of Philadelphia to recover $550 salary. The trial judge, sitting without a jury, found for defendant, and plaintiff appealed from the refusal to enter judgment n.o.v. or to grant a new trial.
During December, 1928, the Director of Public Safety preferred charges against appellant which were referred to the Civil Service Commission. Appellant plead guilty but nevertheless the commission exonerated him. Thereafter the director, acting upon a suggestion made by one of the commissioners during the hearing that the case called for department discipline rather than commission action, preferred new charges, including a new offense, and the police board which heard the case found him guilty. He was sentenced to a fine of 100 days' pay which amounted to $5.50 per day. Instead of paying his fine in cash, he chose to work 100 days without pay. The 100-day period expired on June 23, 1929. He worked during this entire period, and made no demand for salary on any of the semimonthly pay days during that period. On June 30, 1929, he signed the pay roll for the period from June 16, 1929 to June 30, 1929. To the right of the space in which he signed his name under the heading "Remarks" appeared this statement: "8 days deducted completing 100 day fine — absent 6-16-29 to 6-29-29 on vacation with pay." To the left of his signature under the heading, "Deducted" appeared "[$]44.00"; under "Time worked or Days To Be Paid" appeared "7"; and under "Amount Due" appeared *127 "[$]63.50". At the top of the column in which appellant signed his name was printed the following: "We, the undersigned, do hereby severally acknowledge to have received the amounts set opposite our names from Com. Off. Chas. H. Fox, Ft. Traffic Dept. of Public Safety, City of Phila., as officers of the Police, for services rendered from June 16th, to June 30th, A.D., 1929. This acknowledgment to be held as a full bar to all further claims or demands by us, or on our behalf, for services as such employees against the said City of Philadelphia, or the Bureau of Police up to the June 30th, day, A.D., 1929." Thereafter, regularly, appellant signed semimonthly pay rolls containing the same release and made no demand for the 100 days' salary until eighteen months later when he instituted this action.
In the court below, appellant challenged the validity of the fine imposed by the director, contending that since he had been exonerated by the commission he could not subsequently be tried by the police board upon the same charges. During the trial, the trial judge intimated that this was the vital question in the case, but subsequently in his opinion denied recovery "for the sole reason that plaintiff was estopped from making any claim because of the several releases executed by him." The question has been referred to but not specifically raised here, and it has not been briefed or argued. Nevertheless, we have examined it sufficiently to assure ourselves that it does not stand in the way of applying the correct principle which governs the case. That the director is empowered to enforce rules and regulations promulgated by him by imposing fines for their violation cannot be doubted. Witkin v. Philadelphia,
The case thus settles down to the question of the effect of appellant's long acquiescence and the repeated receipts signed by him. It must be noted that the first was more than a bare receipt. It followed, and was founded upon, an account stated by the city which was accepted by appellant. Appellant's indebtedness to the city and the items which composed it were stated under "Remarks" in the pay roll, and they were stated accurately; and the city's indebtedness to appellant and the basis upon which it rested were stated, and stated accurately. The amount paid to and accepted by appellant was the difference between the two sums. The city and appellant stood in relation of employer and employe. Com. ex rel. v. Black,
As indicated by the Restatement, an account stated may be opened upon proof of a mistake. Allegheny Co. Light Co. v. Thoma,
Appellant further complains that he was not permitted to prove that when he signed the receipt the pay roll sheet was folded in such manner that the heading containing the receipt was concealed from him. He had, however, signed many such identical pay rolls before, and he must have been familiar with their contents. Be that as it may, one who can read and signs a document without reading it is not entitled to the protection of either law or equity. Greenfield's Est.,
Judgment affirmed. *130
