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LOUGHNEY v. HICKEY

December 12, 1979

Joseph LOUGHNEY and Robert J. Osborne, Jr., Plaintiffs,
v.
Eugene F. HICKEY, both Individually and in his capacity as Mayor of the City of Scranton; City of Scranton, Pennsylvania, c/o John Brazil, Esquire, Solicitor of the City of Scranton, Pennsylvania; and Gaynor Cawley, Individually and in his capacity as Director of Public Works of the City of Scranton, Defendants.



The opinion of the court was delivered by: HERMAN

MEMORANDUM

I. PROCEDURAL HISTORY

 Plaintiffs initiated this action on March 30, 1978 by filing a complaint alleging that they were discharged from their employment as municipal officers for the city of Scranton for political reasons and seeking reinstatement and back pay. A trial was held before the court without a jury on June 5, 6, and 7, 1979. Trial briefs were filed by Defendants and Plaintiffs on July 20 and 26, 1979 respectively. On October 18, 1979 we ordered counsel for both sides to prepare more detailed findings of fact. Defendants filed their suggested findings of fact on October 26, 1979 and Plaintiffs filed theirs on October 29, 1979. Because we believe that the First Amendment freedom of association as described in Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), does not extend to the Plaintiffs in this matter, we find for Defendants and will enter judgment accordingly.

 II. FINDINGS OF FACT

 1. Joseph Loughney was an employee of the City of Scranton from 1974 until termination on February 10, 1978.

 2. Loughney worked as a foreman in the Department of Public Works from February 1974 to 1977 and as Superintendent of Bureau of Highways from 1977 until February 10, 1978.

 3. Robert Osborne was an employee of the City of Scranton from September 1974 until termination on February 10, 1978.

  4. Osborne began his employment as a CETA *fn1" employee, went through a training program in 1974, and in 1975 was hired as Superintendent of Refuse.

 5. Both the Bureau of Highways and the Bureau of Refuse are Bureaus within the Department of Public Works.

 6. There are six (6) Bureaus within the Department of Public Works.

 7. During the years 1974 through 1978 three (3) different Directors of Public Works served the City of Scranton, specifically, James McNulty, Gregory Herbster and Gaynor Cawley.

 8. The principle function of the Bureau of Highways is the maintenance and clearing of the city streets.

 9. Mr. Loughney's 1978 salary was $ 13,700.00 and his 1979 salary would have been $ 14,800.00; he received benefits of approximately $ 200.00 per month.

 10. The job of Superintendent of Refuse was to implement the standing orders of the Director of the Department of Public Works and provide information to the Directors and insure that the Directors' orders were carried out in the field.

 11. The primary duty of the Superintendent of Refuse was to collect garbage within the city limits.

 12. Osborne was paid $ 13,700.00 in 1978 and would have been paid $ 14,800.00 in 1979; he received benefits of approximately $ 200.00 per month.

 13. The election for the Mayor of the City of Scranton in 1977 was hotly contested and there were three (3) candidates, James B. McNulty, Reverend Vernon Searfoss, and Eugene F. Hickey.

 14. McNulty ran on a sticker ballot.

 15. Loughney and Osborne publicly supported the candidacy of James McNulty by openly soliciting votes for him, erecting political signs, displaying political signs in their homes, and serving as election watchers on election day.

 16. Both Osborne and Loughney worked at a televised event, at which 20,000 people were present, and received television credits for their appearance in that program.

 17. Loughney and Osborne, on Election Day, November 7, 1977, challenged absentee ballots on behalf of McNulty at the polls, appeared at a public hearing at which Eugene Hickey was present, and testified on behalf of McNulty.

 18. Loughney and Osborne watched over election machines impounded during the months of November and December of 1977 on behalf of Mr. McNulty. Present at such watch were members of the Hickey Election Committee.

 19. Loughney and Osborne, on behalf of James McNulty, signed an election contest petition which contested the election of Eugene Hickey as Mayor.

 20. It was general knowledge throughout the community, especially the political community, that Loughney and Osborne supported the candidacy of James McNulty.

 21. Gaynor Cawley, Director of Public Works and the superior of both Plaintiffs, was aware of the fact that Osborne and Loughney supported the candidacy of James Barrett McNulty.

 22. Eugene F. Hickey, the Mayor elect, was aware of the fact that both Loughney and Osborne supported the candidacy of James Barrett McNulty.

 23. In the course of his door-to-door campaign, Hickey discovered that people were concerned about the methods and efficiency of garbage collection and street repair.

 24. On February 5th, 6th and 7th of 1978 a very severe snowstorm hit the Scranton area.

 25. On February 6th and 7th of 1978 Raymond Boynton, janitor for the Department of Public Works, remained in the department for 371/2 hours, because he was unable to get out as a result of the severity of the snowstorm.

 27. On the morning of February 7, 1978, Mr. Loughney was preparing to go to work at his normal hour, but was snowed in at his residence and was unable to get to work.

 28. Loughney resided approximately a mile and one-half from his work site in the City of Scranton and the general nature of the roads between his home and his work site at the Public Works garage is level.

 29. On the morning of February 7, 1978, Loughney attempted to walk to work but was unable to do so because of the accumulation of snow.

 30. On February 7, 1978, Loughney did not have possession of any four-wheel drive vehicle.

 31. At 6:15 a.m. February 7, 1978, Loughney called into work informing his office that because of the snow he was unable to get in and he requested a four-wheel vehicle to pick him up. Later in the morning Loughney again called requesting to be picked up by a four-wheel drive vehicle.

 32. Mr. Joseph Loughney as Superintendent of the Bureau of Highways had the duty to set an example to the men concerning work attendance and to motivate the men for work attendance in an emergency.

 33. On February 7, 1978, Osborne woke up at 5:00 a.m. preparing to go to work, but was unable to get to work. Osborne lives in the East Mountain Section of the City of Scranton.

 34. On February 7, 1978, approximately 60 employees worked for the Department of Refuse; only five reported to work on February 7, 1978.

 35. Osborne called his office at the Bureau requesting that a snow plow pick him up and take him into work.

 36. On February 7, 1978 all other Bureau heads within the City of Scranton, the Director of the Department of Public Works and some foremen attended work.

 37. At or about 1:00 p.m., on February 7, 1978, an emergency four-wheel drive M-A-S-H ambulance vehicle driven by Mr. Fred Schemelfenig arrived at the Loughney residence. Mr. Schemelfenig handed Mr. Loughney a letter signed by Gaynor Cawley, Director of the Department of Public Works, terminating Mr. Loughney from his position as of February 10, 1978. No reason appeared on said letter for his dismissal.

 38. At approximately 1:30 p.m., February 7, 1978, a four-wheel drive M-A-S-H ambulance vehicle driven by Mr. Schemelfenig arrived at the home of Mr. Osborne. Mr. Schemelfenig delivered a dismissal letter similar to that received by Mr. Loughney to Mr. Osborne, dismissing him as of February 10, 1978.

 39. At no time during their employment were either Loughney or Osborne reprimanded, disciplined, or told that they were not performing in a satisfactory manner.

 40. At no time subsequent to their dismissal on February 7, 1978, were either Loughney or Osborne informed of the reason for their dismissal.

 41. Loughney and Osborne were both considered to be satisfactory employees by Cawley and Herbster when the latter two were Directors of the Department of Public Works.

 42. On the morning of February 7, 1978, Gaynor Cawley made no attempts to contact either Loughney or Osborne by telephone to determine why either man was not at work.

 43. Loughney applied for and received unemployment compensation from the Commonwealth of Pennsylvania. The City of Scranton did not contest the claim or allege that he should not be allowed to receive ...


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