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EMPEREE v. MEYERS ET AL. (10/09/70)

decided: October 9, 1970.

EMPEREE
v.
MEYERS ET AL., APPELLANTS



Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1965, No. 4165, in case of Vincent Emperee v. Iris Meyers et al.

COUNSEL

Saul Davis, for appellant.

Joseph W. Conway, with him Edward J. Balzarini, and Suto, Power, Balzarini & Walsh, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones and Mr. Justice Pomeroy concur in the result. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Eagen joins in this dissent.

Author: O'brien

[ 440 Pa. Page 433]

On May 9, 1964, appellant, Iris Meyers, president and sole shareholder of Bar Crescent, Inc. (corporate appellant) and her husband, Samuel Meyers, executed a judgment note in the face amount of $10,000, in favor of the appellee, Vincent Emperee, promising payment one day after date. At the time of the execution of the note, the other two directors of corporate appellant were Stephen J. Harris, Esquire and Louis Simon, who were also treasurer and secretary, respectively, and who were nominees of Tavern Lending Corporation (T.L.C.), a creditor of corporate appellant.

Corporate appellant was formed to purchase and operate a restaurant and bar. Since Iris Meyers had no experience in such a business and her husband was retired, the appellee was employed to be the manager and bartender. Appellee left his own business (he had been the owner of a used car lot) and assumed his duties as manager on a fulltime basis in May of 1964.

According to the attorney who was representing both appellant and appellee, the note was given to

[ 440 Pa. Page 434]

    appellee "for the purpose of securing his position in connection with [appellants as] the bartender and manager."

However, appellee's position was not secure. According to appellee's version, one evening in July of 1965, appellee and Iris Meyers had a fight, which concerned, among other things, appellee's objection to one of the employees serving liquor after the legal 2 a.m. closing time; appellant Iris Meyers' allegedly drunken, angry response to appellee's objections; appellee's pushing Mrs. Meyers; and Mrs. Meyers having appellee arrested by the township police. Appellee testified that he was later instructed by the justice of the peace never to return to the restaurant.

According to the appellants' version, appellee apparently lost interest in the business after five or six months, and thereafter became verbally abusive and physically abusive to Iris Meyers and the bar customers. All parties agree that since July, 1965, appellee has kept away from the individual appellants and the bar and restaurant.

On September 2, 1965, appellee caused judgment to be entered by confession on the note against the appellants. They filed a petition and obtained a rule to show cause why the judgment should not be opened. After depositions were taken and argument before the court below, an order was entered on July 31, 1969, ...


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