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December 9, 1964

Abraham D. BERMAN

The opinion of the court was delivered by: HIGGINBOTHAM

Plaintiff, Abraham D. Berman, seeks an injunction which will order the defendant union to place his name on the ballot as a candidate for the office of Business Agent in the forthcoming elections to be held on and subsequent to December 12, 1964.

Defendant, Philadelphia Local 107 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, through its Executive Board, on November 12, 1964, 'declared plaintiff ineligible to run for the position of Business Agent in the forthcoming election' by reason of plaintiff's conviction in 1963 for the offense of conspiracy to cheat and defraud Local 107, by a jury verdict and judgment of the Court of Quarter Sessions of Philadelphia County. *fn1"

 Defendant admits that the basis of its Executive Board's decision of plaintiff's ineligibility was its interpretation of the prohibitions of Section 504 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 504. *fn2"

 Upon my review of the applicable law, I conclude that the Union properly declared plaintiff ineligible and thus the plaintiff is not entitled to the injunctive relief sought.


 Abraham D. Berman and five other defendants were found guilty by a jury on June 3, 1963, for the crime of 'conspiracy to cheat and defraud a union (defendant, Local 107) of its money, goods and property.' Commonwealth v. Cohen, et al., 203 Pa.Super. 34, 199 A.2d 139, 143 (1964).

 Judge David L. Ullman, the distinguished Judge who presided, summarized the evidence of this ten-week trial as follows:

 'The Commonwealth presented evidence to show that the conspiracy commenced on or about June 10, 1954, and continued through and until at least September 19, 1957. The core of the conspiracy is shown by the disbursements from the union's checking account into the pockets of one or more of the defendants. Thus, this conspiracy began with Check No. 8622, drawn on June 10, 1954, to the order of Cash in the amount of $ 15,000, signed by Raymond Cohen and Joseph B. Grace, and endorsed by Joseph Hartsough. That check and Check No. 8652 for $ 10,000, also signed on its face by Cohen and Grace and endorsed by Hartsough were used to pay for Raymond Cohen's election expenses. 'The continuity of the conspiracy was demonstrated by hundreds of union checks, introduced into evidence by the Commonwealth, which checks were cashed and paid out of the union's treasury. Between June 10, 1954 and September 19, 1957, there was a constant stream of such checks, with only short periods of time intervening between the issuance of checks on the various phases. These checks * * * were cashed in individual instances by one or another of the six defendants. 'The terminal points of the conspiracy were marked at the start by the two checks for $ 25,000, and at the end by the checks issued in connection with the International Convention of the Teamsters in Miami, Florida. * * * the central theme of the scheme to loot the union treasury runs through the entire case. * * *' Transcript of Opinion, Ullman, J., Sept. 3, 1963, pp. 5-6.

 On March 17, 1964, the Superior Court affirmed the convictions of Berman and the other defendants, and held that 'after a thorough consideration of the evidence in this case we are convinced that it was sufficient to sustain the convictions of each appellant.' 199 A.2d 139 at 150, supra.

 On June 2, 1964, Berman's petition for allowance of appeal was denied by the Supreme Court of Pennsylvania, and certiorari was denied by the United States Supreme Court on November 9, 1964. 85 S. Ct. 191. Berman is presently incarcerated in a Pennsylvania prison and has pending before me a habeas corpus petition, *fn3" filed on November 24, 1964, which alleges that the aforementioned State conviction was in violation of certain federal constitutional rights.

 The pertinent provisions of the statute controlling the validity of defendant's exclusion of plaintiff from the Union ballot reads as follows:

 ' § 504. Prohibition against certain persons holding office; violations and penalties '(a) No person who is or has been a member of the Communist Party or who has been convicted of, or served any part of a prison term resulting from his conviction of, robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, assault which inflicts grievous bodily injury, or a violation of subchapter III or IV of this chapter, or conspiracy to commit any such crimes, shall serve -- '(1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization, * * * '* * * for five years after such conviction or after the end of such imprisonment, * * * '(b) Any person who willfully violates this section shall be fined not more than $ 10,000 or imprisoned for not more than one year, or both. '(c) For the purposes of this section, any person shall be deemed to have been 'convicted' and under the disability of 'conviction' from the date of the judgment of the trial court or the date of the final sustaining of such judgment on appeal, whichever is the later event, regardless of whether such conviction occurred before or after September 14, 1959.' (Emphasis added.)

 The major thrust of plaintiff's argument is that since the statute does not specify 'a conspiracy to cheat and defraud' his conviction is not covered by any of the statutorily specified terms such as grand larceny *fn4" or embezzlement. Plaintiff further argues that the statute '* * * must be regarded as so penal in consequences' that the doctrine of 'strict construction' of penal statutes must be applied in this civil injunctive case. Plaintiff's argument has been answered and rejected in every reported case on this Section. Serio v. Liss, 300 F.2d 386, (3rd Cir. 1961); Postma v. International Brotherhood of Teamsters etc., D.C., 229 F.Supp. 655; affirmed 2nd Cir., Oct. 2, 1964, 337 F.2d 609; United States v. Priore, 236 F.Supp. 542 (U.S.D.C., E.D.N.Y., 1964.)

 Judge Brennan analyzed this issue with precision in Postma v. International Brotherhood of Teamsters etc., 229 F.Supp. ...

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