In the Court of Common Pleas of The 26th Judicial District Of Pennsylvania
Robert Fulton, Jr. Plaintiff vs. BARS, and trustees
This is the decision rendered by Judge Naus at 3:08 pm on January 15, 1998.
Adjudication
Plaintiff filed the within action by Complaint in Equity on January 8, 1997. He filed in equity although both claims in equity and law were included. Along with the Complaint was a Petition for Injunctive relief. This Injunction was denied by the court. Argument was heard on the injunctive relief request and it was again denied. Exceptions were filed by the plaintiff, argument was heard on these exceptions and the trial on the underlying cause was set. The matter is now ready for disposition.
Findings Of Fact
BARS initial members, the parties in this case, had all been members of CMARC, another similar club. They had become disenchanted with CMARC.
Plaintiff and defendants together left CMARC and founded BARS for the purpose of practicing and enjoying ham radio. Plaintiff and the seven individual defendants became trustees of BARS.
Besides CMARC there are numerous other local ham radio clubs like BARS.
BARS purchased and installed a tower repeater to enhance radio transmissions. The codes to access the repeater were possessed by the members, including Plaintiff.
Over time, plaintiff developed a vengeful attitude against CMARC, which was not supported or joined by other BARS members. They reconciled their differences with CMARC and its members.
Plaintiff began to interfere with the radio transmissions of other members of BARS, contrary to FCC regulations and the philosophical and fiduciary duty of Plaintiff to defendants.
BARS changed the codes and restricted the members who possessed the access codes. Plaintiff was no longer among these possessors. Other clubs, like CMARC restrict the access to their repeater codes in a similar fashion.
A resentful attitude grew between Plaintiff and the rest of the BARS members.
BARS members began experiencing difficulties operating their radios and discovered that Plaintiff was purposely interfering with their broadcasts.
Plaintiff promised to be BARS worst nightmare and that he would bankrupt them. Plaintiff was aware that BARS was insolvent, that its debts exceeded its assets and further that none of the members had much "wherewithal" financially.
Plaintiff told a BARS member over the radio that he had a 9mm to take care of the problem. One of Plaintiff's witnesses advised Plaintiff that he just made matters worse.
BARS members called, noticed and held a membership meeting to amend their constitution. Plaintiff received notice and elected not to attend.
At the meeting, BARS amended their constitution to provide for removal of Trustees and then proceeded to vote to remove Plaintiff. In removing Plaintiff, the club offered to return to him his prepaid dues and assessments, but he refused to accept them. He was not requested to pay his share of club debts.
Without BARS access codes, the Plaintiff could not cause the BARS repeater to be adjusted and perform special functions. However, he could still transmit over the BARS repeater. Plaintiff can and does regularly and frequently use BARS' and many other local repeaters to talk on his ham radio.
Plaintiff did not provide even one scintilla of evidence of any economic loss as a result of any wrong allegedly done to him by Defendants.
Issues
1. Did the defendants follow proper procedures in removing the Plaintiff from a position of trustees in BARS?
2. Did the conduct of BARS and its members in limiting access to repeater codes wrongfully deprive Plaintiff of his property?
Discussion And Conclusions Of Law
Although originally filed in January 1997, Plaintiff filed an Amended Complaint on August 8, 1997. Plaintiff's amended complaint in equity contains three claims. Count I for Breach of Fiduciary Duties by Defendants, Count II for Misappropriation/Fraud, and Count III for Freedom of Expression. These will be discussed seriatim.
As to Count I, the only conceivable way that a fiduciary relationship can exist between the parties in this case, is by considering the voluntary association, BARS as a joint venture. Neither party has so designated the club. If it is not, then no fiduciary relationship exists and Plaintiff's claim in Count I must fail. If it is a joint venture, then each joint venture owes to each other the duty to act with the utmost good faith. Goldstein v. Greenberg, 42 A2d 551 (PA, 1945). In the case at bar, the defendants were completely candid, open, honest and fair in their dealings with plaintiff.
Indeed, it was Plaintiff who promised to be his co-venturers' worst nightmare and was.
Furthermore, membership in a voluntary associations is an issue within the complete and exclusive jurisdiction of the club. Bailey v. YMCA of Philadelphia 109 A 2nd 690 (Pa Supr., 1920). Furthermore, courts will not interfere with membership decisions of a voluntary association where the same have been accomplished according to the procedures outlined by the association and when the decision is not in violation of any public law. Appeal of Sperry,. 9 A2nd 478 (Pa. Supr., 1887), see also Werner v. Pa. Institute of Certified Public Accountants, 59 D&C 2d 448 (1972).
In the case at hand, Mr Fulton's membership was properly terminated in accordance with BARS constitution and the law.
To hold any other way, would render the single trustee able to hold the entire entity hostage by its very constitution which would be absurd result.
Plaintiff's complaint requests "compensating and punitive damages in excess of $10,000." The court made several inquiries for clarification as to economic damages. Assurances were given that the proof would be forthcoming at trial. The record is devoid of this evidence. Accordingly Count I must indeed fail.
Plaintiff's claim in Count II, Misappropriation/Fraud, is vague, whimsical and spurious. The testimony reveals that what is complained of in this case is exactly the case in other ham radio clubs. A few limited and selected members access the tower and repeater controls.
The Plaintiff's own behavior, evidenced by his own witness, who advised Plaintiff that he should not be speaking over the radio of using a 9mm gun, confirms that he "cooked his own goose" respecting the use of the control codes. The defendants in this case took appropriate action to limit the codes in order to clear the air and minimize interruption of transmissions. Their actions were taken within the parameters of the procedures provided by their rules and for the good purpose of furthering the activity of enjoying and practicing ham radio.
Again, as in Count I, no financial loss by Plaintiff was demonstrated. No inability to use or enjoy Plaintiff's ham radio was shown in the trial. No evidence of fraud was proved in this trial. Accordingly, Plaintiff's Count II must indeed fail.
Count III relates to Freedom of Expression. Incredibly, no freedom of expression violations was broached in this case. The allegations contained in Plaintiff's Count III belong in Count I where Plaintiff argued for, or could have argued for, breach of contract express and/or implied.
Nevertheless, this court will address this issue. The constitution of BARS contained an amendment proviso. This method of amending the constitution was followed. Notice was appropriately given and received by Plaintiff for the amending meeting. He testified of this awareness and of his failure to attend. He was properly removed by vote of the trustees and was offered his prepaid dues and other assessments to the club. He was not requested to pay his share of club debts. Therefore, Plaintiff's Count III must indeed fail.
Both parties have requested counsel fees. For the reasons set forth below. Plaintiff's request is denied. Defendants have raised their request as a counterclaim under 42 PA C S A 2503 (7) and (9). These sections provide for assessment of counsel fees in the event an action is commenced or maintained which is arbitrary, vexatious or in bad faith. A suit is arbitrary or vexatious if it is filed without sufficient grounds in either law or fact and is solely to cause inconvenience and annoyance. Thournberg v. Strause 682 A2d 295 (PA, 1996). A suit is in bad faith if it is maintained in fraud, dishonesty or corruption. Springfield Twp v Gonzales, 632 A2d 1353 (Cmwth Ct, 1993).
In the case sub judice, there is support in neither law nor fact for the filed action. Furthermore, this case was pursued ostensibly, in part, for economic losses. Yet despite assertions of economic losses none were evidenced. No support for an injunction was proffered despite a pre-trial meeting, extensive argument, reargument and trial. This Plaintiff's case is meritless.
Therefore, counsel fees are awarded to defendant and against plaintiff in the sum of $2,000.00.
Therefore we enter the following
DECREE NISI
AND NOW, this 15th day of January, 1998, after a bench trial on the within claims, the injunctive relief requested by the Plaintiff is hereby denied.
The claims raised in Plaintiff in his Complaint in Equity are hereby denied and the court finds in favor of the defendants and against the Plaintiff.
On Defendants' counterclaim for attorneys fees, the Court finds in favor of the defendants and against the plaintiff in the sum of $2,000.00.
The Prothonotary is directed to enter the Decree Nisi, and if no exceptions are filed hereto within 20 days of this decree, to enter the same as a final decree.
BY THE COURT
Honorable Scott W. Naus
