Gordon v. Tomei

• Decision Date: 18 April 1941
• Docket Number: 261-1940,263-1940,262-1940
• Citation: 19 A.2d 588,144 Pa.Super. 449
• Parties: Gordon et al. v. Tomei et al., Appellants
• Court: Pennsylvania Superior Court

19 A.2d 588

144 Pa.Super. 449

Gordon et al. v. Tomei et al., Appellants

Nos. 261-1940, 262-1940, 263-1940

Superior Court of Pennsylvania

April 18, 1941

Argued October 21, 1940.

Appeals from decrees and judgments of C. P. No. 4, Phila Co., Dec. T., 1937, No. 5280, in equity, in case of Leon Gordon et al. v. A. A. Tomei et al.

Bill in equity. Before Finletter, P. J.

The facts are stated in the opinion of the Superior Court.

Decree entered granting relief to plaintiffs. Defendants appealed.

Errors assigned, among others, related to the action of the court below in dismissing defendants' exceptions.

Decrees and judgments, as modified, affirmed.

Oscar A. Moldawer, for appellants.

Abraham Wernick, with him Herman Barton Paul, for appellees.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker Rhodes and Hirt, JJ.

OPINION

Rhodes, J.

Plaintiffs are members of the Musicians Protective Association, Local 77, American Federation of Musicians, an unincorporated association of musicians united for mutual protection through establishment of a minimum scale of prices, the granting of sick and death benefits, and the burial of the dead. The association is a defendant in an equity proceeding brought by plaintiffs wherein they sought injunctive relief against so-called disciplinary measures adopted by defendant association, and damages for loss of employment thereby resulting. After hearing testimony, the chancellor filed an adjudication in favor of plaintiffs. The findings of fact and the conclusions of law made by the chancellor were affirmed by the court in banc, and the decree nisi made final. From the final decree defendants have appealed.

The facts which give a background of the controversy may be summarized from the averments of the amended bill and the answer of the defendant association.

The by-laws of defendant association provide penalties for any deviation from the established scale of prices or any agreement by a member to rebate a part of his wages paid in accordance with the scale. The by-laws also establish a trial board for hearing of complaints against members, and from the decision of that body an appeal lies to the International Executive Board of the American Federation of Musicians, the national organization of which the defendant association is a local unit functioning in Philadelphia. Such an appeal, however, by article XI of the by-laws of the national organization must be filed by the one appealing within thirty days of receipt of notice of the decision of the trial board. The power of the International Executive Board to hear such appeals is derived from various sections of the by-laws of the national organization, incorporated by reference in the by-laws of defendant association.

The executive management of defendant association is reposed in its own executive committee, whose powers and duties are defined in article VII, sections 6 and 8 of its own by-laws. ^[1]

Plaintiffs were members of an orchestra engaged to perform at the Carmen Theatre from September 4, 1936, to December 3, 1937, excepting, as to two of the plaintiffs, certain lay-off intervals during the summer of 1937. The engagement was agreed upon between the theatre and defendant association in a writing which did not identify any of the persons to be hired other than as members of defendant association, but set their number as "nine musicians and one contracting-leader," and in considerable detail fixed their hours and wages. It then provided: "The contracting-leader must make his individual contract but such contract must be subject to this trade agreement."

The position of "contracting-leader" referred to in this agreement was from September 4, 1936, to July 8, 1937, filled by one Leon Saporeta, who led the orchestra in which plaintiffs played. In May, 1937, all the members of the orchestra, including Saporeta, were charged by the executive committee of defendant association with agreeing to rebate wages to the theatre management. On May 26, 1937, they were tried before the trial board of defendant association. Plaintiffs were acquitted, but Saporeta and the other members of the orchestra were convicted and fined. On June 4, 1937, however, the executive committee filed the same charges again against two of the plaintiffs, Gordon and Schatz. On the same date, June 4, 1937, the executive committee adopted a resolution that "the entire Carmen Theatre Orchestra be withdrawn from the Carmen Theatre as of July 8, 1937," and a copy of this resolution was sent to the owner of the theatre, Saporeta, and every musician in the orchestra, including plaintiffs.

The sections of the by-laws of defendant association which bear upon the authority of the executive committee to take this action are sections 16 (a) and 16 (b) of article XVIII. ^[2]

The hearing on the renewed charges before the trial board was held on June 9, 1937, and the result was again an acquittal of the two plaintiffs. On June 14, 1937, plaintiffs perfected an appeal to the International Executive Board from the resolution of the executive committee withdrawing them from the theatre. It was not until July 16, 1937, that the executive committee of defendant association filed its appeal to the International Executive Board from the finding of the trial board acquitting plaintiffs. The International Executive Board on December 22, 1937, denied plaintiffs' appeals from the resolution ending the engagement of the orchestra, and on January 20, 1938, reversed the trial board's acquittal of plaintiffs, found them guilty of the charges, imposed fines of $ 100 on each, and ordered in default of payment within thirty days erasure of their names from the membership rolls of defendant association.

It is admitted that plaintiffs had exhausted all remedies available within the association before they filed their bill in equity. Lodge No. 19, Svete Ime Isusovo v. Svi Sveti et al., 323 Pa. 292, 294, 185 A. 650.

The bill prayed, inter alia, the court to enjoin defendants from carrying out the order of the International Executive Board, to declare void the board's reversal of their acquittal, to decree plaintiffs members of defendant association in good standing, and to award plaintiffs damages for loss of employment.

The bill included various other complaints of defendants' conduct, which were, at the hearing before the chancellor, withdrawn, and it was there stated of record that the issue was restricted to the tardiness or timeliness of the executive committee's appeal to the International Executive Board from plaintiffs' acquittal by the trial board. On this issue the secretary of defendant association, A. Rex Riccardi, testified that on July 2, 1937, he wrote to the secretary of the national organization, and requested an extension of time for the filing of an answer to plaintiffs' appeal of June 14 from the order of the executive committee ending the engagement at the Carmen Theatre. He also testified that on July 6 he wrote the same individual a letter, which is printed below. ^[3] This letter is unexplained unless it refers to an oral conference between members of the local executive committee and the International Executive Board at a convention in Tampa, Florida, during the week of June 13, 1937, in which was discussed the intention of the executive committee to appeal from the action of the trial board in acquitting plaintiffs and in not imposing heavier fines on the members convicted, together with the advisability of combining these appeals with answers to appeals if taken by the members. The witness testified that he was advised by the International Executive Board to adopt such a combined procedure, and "subsequently through telephonic communications when we met with the secretary again" that this procedure could be made to include also answers to appeals of plaintiffs, by that time filed, from the order withdrawing the orchestra from the theatre.

Although nothing appears specifically in answer to the inquiry of July 6, on July 16, the executive committee sent the national secretary one written argument in support of its own appeals, both from the acquittal of plaintiffs and the trial board's failure to fine more heavily those found guilty, and in answer to the appeals by the members from their conviction and to the appeals by plaintiffs from the withdrawal order. Defendants' answer admits the averments of the bill that the appeals of all the plaintiffs were filed on June 14, 1937.

In his adjudication the chancellor made various findings of fact among them the following: "The issue before the court concerns the tardiness or non-tardiness of the appeal to the International Executive Board taken by the defendant local's executive committee from the decision of its trial board, all other issues raised by the amended bill of complaint and the defendants' answer thereto having been resolved in favor of defendants by agreement." This was defendants' first request for finding of fact, as qualified. He also found as facts that the executive committee of defendant association had notice of the acquittals more than thirty days prior to its appeals therefrom; and that it did not perfect an appeal until July 16, 1937; that it adopted a resolution withdrawing the entire orchestra (including plaintiffs) from the Carmen Theatre; that the by-laws of defendant association authorized such a step only if the trial board had referred the case to the executive committee; and that no reference of the cases of plaintiffs had been made by the trial board. As a matter of law he concluded that the appeals were tardy; that the International Executive Board was without jurisdiction; and that its orders fining plaintiffs and directing their names to be stricken from the...