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MCALEER v. MCNALLY PITTSBURG MFG. CORP.

March 4, 1963

W. S. McALEER, Plaintiff,
v.
McNALLY PITTSBURG MFG. CORP., Defendant



The opinion of the court was delivered by: WILLSON

This non-jury civil action has been tried as directed by the Court of Appeals, 3 Cir., 307 F.2d 220 (1962). At the second trial counsel submitted all of the evidence taken at the first trial as well as a stipulation, and for the defendant, additional evidence was offered. The case is for decision on the merits upon all the evidence.

In his complaint plaintiff alleges a contract of employment with defendant which he says defendant breached. Paragraphs 4 and 5 of the complaint aver the employment contract. They read:

 '4. On or about April 14, 1959, the defendant, by its president Edward T. McNally, acting within the scope of his employment, made an offer in writing to the plaintiff to continue the defendant's employment of the plaintiff as its sales representative in the area of Pittsburgh, Pennsylvania, until the contemplated retirement date of the plaintiff, July 30, 1961, at a monthly salary of $ 500.00. A copy of said writing is attached hereto as Exhibit A.

 '5. On May 15, 1959, after negotiations, the defendant amended its offer as aforesaid to increase the monthly salary to $ 625.00 and the plaintiff accepted said amended offer and continued in the employment of the defendant.'

 Plaintiff sues to recover lost wages at the rate of $ 625.00 per month from May 20, 1960 to July 30, 1961 in the total sum of $ 8,950.00, and in addition claims a reduction in his retirement annuity at the rate of $ 16.00 monthly amounting to $ 1,705.77. In addition, says plaintiff, he suffered a cancellation of his group life insurance policy and prays for equitable relief with respect to that feature of the case.

 Defendant answered generally. Its first defense was that the complaint failed to state a cause of action upon which relief sought can be granted. In its second defense defendant admits citizenship but denies that the amount in controversy exceeds the jurisdictional amount. It further denies that it made an offer of employment in writing for any fixed period of time. It averred that the period was expressly conditioned upon the satisfactory volume of coke oven business in the Pittburgh area, and by implication conditioned upon the good faith performance by the plaintiff of his duties.

 Plaintiff, W. S. McAleer had been a valued long time employee of defendant, McNally Pittsburg Mfg. Corp., and in charge of its regional office in Pittsburgh Pennsylvania. In the Spring of 1959 defendant transferred the major portion of its activities from Pittsburgh, Pennsylvania to Pittsburg, Kansas. Plaintiff's salary with defendant had been approximately $ 14,000.00 per year with an annual bonus which ranged from $ 7,000.00 to $ 16,000.00 per year in addition to his salary. On April 14, 1959, Mr. McNally, for the defendant, wrote two letters to the plaintiff. In plaintiff's exhibit 1, the subject of the letter is styled 'Closing of Pittsburgh Office'. Mr. McNally reviews the reasons why the business is to be transferred away from Pittsburgh. In this letter he says:

 'By a separate letter I am proposing that you continue to represent us in Pittsburgh from your home.'

 He discusses other features of the Pittsburgh business, mainly with regard to transferring certain files to plaintiff's home in order to service two accounts, but says:

 '* * * your home files should be kept to the barest minimum.'

 In the second letter, plaintiff's exhibit 2, the question of plaintiff's employment is dealt with specifically. Mr. McNally refers to the other letter of the same date indicating that plaintiff should restrict his activities to the Koppers and Wilputte accounts. He then says:

 'I propose that this arrangement continue until your retirement, which appears to be July 30, 1961, presuming that the volume of coke oven machinery work continues at some respectable level.'

 The letter proposes his salary but reads:

 '* * * to reflect your reduced activities, to $ ...


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