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MCMONIGLE v. PHILADELPHIA. (12/29/56)

December 29, 1956

MCMONIGLE, APPELLANT,
v.
PHILADELPHIA.



Appeal, No. 292, Jan. T., 1956, from judgment of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1955, No. 4870, in case of Frank X. McMonigle v. City of Philadelphia et al. Judgment affirmed. Mandamus. Defendants' motion for judgment on the pleadings granted, opinion by REIMEL, J. Plaintiff appealed.

COUNSEL

Charles Polis, with him Polis & Polis, for appellant.

Abraham Wernick, Deputy City Solicitor, with him David Berger, City Solicitor, and Levy Anderson, First Deputy Solicitor, for appellees.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Musmanno

[ 387 Pa. Page 341]

OPINION BY MR. JUSTICE MUSMANNO

On March 24, 1952, the plaintiff in this case, Frank X. McMonigle, was discharged by the pertinent municipal authorities from his position as clerk in the Children's Agent Division of the office of the County Commissioners of Philadelphia at a salary of $3340 per annum. Nearly four years later, on January 29, 1956,

[ 387 Pa. Page 342]

    he instituted mandamus proceedings against the City of Philadelphia and its City Commissioners demanding reinstatement. The defendant City filed preliminary objections seeking a more specific complaint, whereupon McMonigle filed an amended complaint alleging that he had been dismissed without cause and in violation of Section A104 of the Philadelphia Home Rule Charter. The City filed an answer denying the plaintiff's assertions and averring on the contrary that: (1) The plaintiff was derelict in his duties, arriving late for work and leaving early; (2) The plaintiff failed to cooperate with and follow the instructions of his superior; (3) The City reduced the number of employes in the Childrens Bureau so that in effect the plaintiff's job was eliminated; (4) The plaintiff had himself resigned on March 24, 1952, and applied for withdrawal of all moneys paid by him into the Pension Fund. Under New Matter the defendant charged the plaintiff with laches.

In his reply to the New Matter the plaintiff stated that he delayed taking legal action against the City because of certain so-called test cases, later designated as Lennox v. Clark, 372 Pa. 355 and Commonwealth ex rel. Truscott v. Philadelphia, 380 Pa. 367. The defendant filed a motion for summary judgment on the pleadings, which was granted in the Court below. The plaintiff has appealed, asking reversal.

There are many reasons supporting the action of the lower Court. No employer is required to maintain more employees than he needs, and, least of all, should he be compelled to retain an employee who makes a practice of arriving late and leaving early. Tardy arrivals and premature departures on the part of personnel can do more damage to the success of an enterprise than an army of hungry moles gnawing at the foundation

[ 387 Pa. Page 343]

    of the building which houses it. There as a time, now probably happily passed, when government job-holders were almost expected to treat the clock with scorn, and the calendar with equal disrespect, payday being about the only day when attendance was automatically assured. A good day's work was then regarded as an exception rather than a routine performance. That the position held by the plaintiff in this case came close to being such an antiquated sinecure is evidenced by the fact that it was eliminated, without not only not adversely affecting the productiveness of the office, but apparently increasing the efficiency thereof. Moreover, the plaintiff has practically admitted to the superfluity of his past post when he says in his amended complaint that it has not been filled for four years. He seeks, however, to give substance to vacuity and virtue to ...


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