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CONSTRUCTORS ASSN WESTERN PENNSYLVANIA v. FURMAN (04/18/52)

April 18, 1952

CONSTRUCTORS ASSN OF WESTERN PENNSYLVANIA
v.
FURMAN



COUNSEL

Montgomery, Thompson & Baily and Waychoff, Maxwell & Waychoff, all of Waynesburg, for Roy E. Furman.

McCrady & Nicklas, Pittsburgh, Smith, Marion & Balaban, Waynesburg, for Construction Ass'n of Western Pennsylvania.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Reno

[ 170 Pa. Super. Page 555]

RENO, Judge.

At the new trial awarded by this Court, Constructors' Association of Western Pennsylvania v. Furman, 165 Pa. Super. 248, 67 A.2d 590, the jury returned a verdict for Furman. The Association moved for judgment n. o. v. and a new trial. Judgment n. o. v. was refused and the Association appealed to No. 96 April Term, 1951. A new trial was granted and Furman appealed to No. 95 April Term, 1951.

The Association sued Furman for $1233.33, representing membership dues from 1941 to 1946. In the first trial Furman stood upon an alleged parol contemporaneous agreement exempting him from the payment of dues. After the case was remanded for a new trial he amended his answer by the averment: 'That some time during the period between April 16, 1941 and April 22, 1942, the Complainant Association, by proper action of its Board of Governors in accordance with Section 13 of its By-Laws, expelled the Defendant from the Association so that the relationship between Complainant

[ 170 Pa. Super. Page 556]

    and the Defendant was terminated by a written notice, mailed to and received by the Defendant, the said Roy E. Furman, during that period of time.' By an amended reply the Association denied the expulsion. The trial revolved exclusively around this issue.

According to the Association's by-laws, introduced in evidence, the board of governors is authorized to expel 'members for practices of acts which appear to be improper and injurious to the industry and the Association.' The board may expel only upon charges 'presented in writing by at least two members in good standing,' and thereon a 'hearing before the Board shall be arranged not later than one week after the receipt of the charges. Should the accused member not be willing to appear before the Board, but willing to present his arguments in writing, the majority vote of the Board shall determine the penalty in either case.' (By-Laws, § 13.) Provision is made for an appeal from the action of the board to the members of the Association.

The burden of proof was upon Furman. Since only the board was authorized to expel him, Furman was obliged to prove action by the board. The best evidence of the action of the governing body of a corporation is the record of the proceeding contained in its minutes. Costa v. Croatian Fraternal Union of America, 122 Pa. Super. 447, 185 A. 869. Where the minutes omit reference to the proceeding the action of the corporation may be proven by parol evidence. In re Loeffler's Estate, 277 Pa. 317, 121 A. 186; Rose v. Independent Chevra Kadisho, 215 Pa. 69, 64 A. 401; Lincoln v. Christian, 94 Pa. Super. 145. In any event and by some method Furman was required to prove that the board exercised its power to expel him. Instead, over objection, he was allowed to testify that he had received a letter, which he subsequently destroyed,

[ 170 Pa. Super. Page 557]

    which informed him that he 'was no longer a member.' In answer to the question, 'Who signed the letter, Mr. Furman?' he replied, 'I think the executive secretary, Mr. MacGregor.' MacGregor, formerly the ...


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