Franklin Music Co. v. American Broadcasting Companies , 616 F.2d 528 ( 1979 )

GIBBONS, Circuit Judge,

announcing decision of the court as to all issues except the civil conspiracy verdict and dissenting in Part II. B. as to the civil conspiracy claim.'

This case is before us on an appeal by the plaintiff Franklin Music Company (FMC) and cross appeals by the defendants American Broadcasting Companies, Inc., ABC Record and Tape Sales Corp. (hereinafter collectively ABC), and Albert S. Franklin (Franklin) from a final judgment in favor of FMC following a jury trial. The complaint alleges violations of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2 (1976), section 7 of the Clayton Act, 15 U.S.C. § 18, and various contract and tort claims under Pennsylvania law. The trial court granted motions for partial summary judgment on the section 2 Sherman Act and section 7 Clayton Act claims, from which no appeal has been taken. At the close of the plaintiff’s case the court directed verdicts on the section 1 Sherman Act claim and on a count alleging trade libel under Pennsylvania law. The case was submitted to the jury on special verdict interrogatories, and the jury returned a verdict in favor of FMC for $2,013,000 in compensatory damages and $1,025,000 in punitive damages. The verdict reflected the jury’s conclusion that the defendants had conspired to injure and destroy plaintiff, that with ABC’s inducement and assistance, Franklin had breached fiduciary duties to FMC, and that the defendants had improperly interfered with the business relationship between FMC and its employees. Motions for judgment notwithstanding the verdict followed, and the district court granted those motions in part. The court granted judgment notwithstanding the verdict on the jury’s award of damages for interference without privilege in the relationship between FMC and its employees. This left standing an award of $25,000 for damages due to Franklin’s breach of fiduciary duty, and an award of $1,311,000 for the defendant’s civil conspiracy against FMC. Judgment was entered in these amounts and all parties appealed. The court affirms these awards, but reverses the civil conspiracy award and the judgment notwithstanding the verdict on the employee interference award. We announce herein the opinion of the court as to all issues except the civil conspiracy award, an issue as to which I dissent herein.

I. BACKGROUND FACTS

In 1973 FMC operated a chain of eight retail music stores. Franklin, FMC’s president and manager, owned 15% of its stock and the remaining shares were owned by Raymond Rosen & Co., a corporation, whose president, Edward Rosen, was FMC’s board chairman. During that year ABC decided to enter the retail music business and began a search for personnel knowledgeable in that field. Franklin, who had had five years of experience with the successful FMC chain and prior experience with the Sam Goody retail music chain, was approached by ABC. Beginning in September 1973, meetings took place between Franklin and ABC, during which his employment by ABC and ABC’s possible acquisition of FMC were discussed. While these discussions progressed representatives of ABC visited certain FMC places of business and were shown FMC’s point of sale (POS) data processing system, which was alleged to be confidential. Rosen was not informed of these discussions until January 15, 1974, when Franklin told Rosen he was leaving to join ABC and that ABC was prepared to make a purchase offer for FMC. Franklin’s employment contract with FMC contained a covenant not to compete with FMC within 50 miles of City Hall, Philadelphia, for one year after Franklin terminated his at-will employment. He went to work in January 1974 at the headquarters for ABC’s retail music venture in Cherry Hill, New Jersey, near Philadelphia, but no retail stores were operated by ABC within that fifty mile radius. Following his employment by ABC, Franklin approached various key employees of FMC and successfully induced them to leave FMC and join ABC. In the meantime discussions, which eventually proved to be unfruitful, were conducted with Rosen concerning ABC’s acquisition of FMC. Franklin gave interviews to trade journals in which he disclosed ABC’s plans and the negotiations for the acquisition of FMC, and predicted that ABC would be more successful than FMC. Following the departure of Franklin and other key people, FMC, which previously had been a profitable venture with an expanding business, began incurring losses. It lost $450,000 in 1974 and $426,000 in 1975. In July 1975, the Sam Goody chain purchased the FMC stores in the Philadelphia area at book value. FMC’s Atlanta stores continued in business, incurring further heavy losses, until June 1977, when they were sold at book value to another retail chain.

II. DEFENDANTS’ CONTENTIONS

The defendants contend that as to each claim on which FMC recovered, the judgment should be reversed and judgment entered in their favor. They further contend that, even if we find that there was sufficient evidence to warrant submission of those claims to the jury, various trial errors require that we order a new trial.

A. Breach of Fiduciary Duty by Franklin

The jury answered affirmatively the following special verdict interrogatories:

1. (a) Did Mr. Franklin while employed by [FMC] breach his fiduciary duty to that company?

(b) Did [ABC] induce Mr. Franklin to breach his fiduciary duty to [FMC]?

Under Pennsylvania law, Franklin, as president and a director of FMC, owed his undivided loyalty to that corporation. Lutherland, Inc. v. Dahlen, 357 Pa. 143, 151, 53 A.2d 143, 147 (1947). The trial court described the evidence relied on to support a finding that Franklin breached his fiduciary duty as “far from overwhelming,” but nevertheless legally sufficient. In reviewing this evidence, the court noted that the record established: that while Franklin was president of FMC, he held several discussions with ABC’s management without the knowledge of other FMC personnel, at least six of which meetings took place during FMC’s normal business hours; that at ABC’s request Franklin guided ABC executives through FMC’s stores and instructed his assistant, Terrence Sukalski, to show ABC visitors “whatever they wanted to see” although prior to this instruction it had been the policy of FMC not to disclose certain aspects of its business, in particular its point of sale data processing system, to its competitors; that during his negotiations with ABC Franklin missed two scheduled appointments with Rosen; that in the year prior to his departure, Franklin worked somewhat shorter hours than he had previously, although exceeding forty hours per week; that while he was president ABC executives expressed an interest in acquiring FMC, which Franklin did not disclose to Rosen until January, 1974, when he had already obtained a commitment from ABC for new employment; that while he was negotiating with ABC, Franklin for the first time delegated to a subordinate the task of obtaining advertising rebates and failed to supervise this subordinate, resulting in losses to PMC; that when he did disclose that he was leaving FMC, his conversation with Rosen implied not merely an interest in obtaining employment with better prospects, but actual hostility and an interest in demonstrating his indispensability to the 85% owner of the business; and that while employed at FMC Franklin failed to train others to perform necessary business functions, and so concentrated responsibility in himself as to make it difficult for the business to survive his departure. Some of the evidence referred to was hotly contested. As the court observed, Franklin and Rosen displayed in their testimony a longstanding mutual antagonism. If the jury had credited Rosen, it could have found an intention on Franklin’s part, while he was president, to harm Rosen. There was also evidence from which the jury could have inferred that while he was president of FMC he and representatives of ABC discussed the possibility of hiring away other key FMC employees in the event that the company could not be acquired at a price satisfactory to ABC, and that Franklin did not disclose this intention to Rosen, even when he announced his departure. There is evidence from which the jury could have found that he timed his departure in order to maximize his own good, leaving after Christmas so that the peak sale figures from that period would be the basis for calculation of his buy-out price. Moreover, the jury had before it evidence from which it could have found that immediately after announcing his departure, Franklin approached certain key employees about joining ABC, and it was certainly a permissible inference that this was the result of his previous discussions with ABC.

The court correctly instructed the jury that, as an officer and director of FMC, Franklin was bound by the strictest duties of honesty and individual loyalty, and could not engage in business conduct detrimental to FMC’s best interests. The court also instructed, however, that since Franklin was an at-will employee the jury could not find a breach of his fiduciary duty solely because he sought new employment and failed to disclose that fact to his employer.¹ Rather the jury was instructed that it must also find some specific disloyalty or betrayal of FMC’s interests during the time when he was president. The parties did not object to this aspect of the charge, and agree that it accurately reflects the law of Pennsylvania.²

We agree with the trial court that there was evidence from which a jury could have found specific disloyalty going beyond merely seeking new employment. The jury could have found that Franklin was motivated by feelings of personal hostility to the 85% owner of FMC, that he reduced his attention to FMC’s business at a critical time, that he negotiated secretly with a company that had an incentive to purchase the business at a bargain price, that he arranged its affairs so that his departure would cause it maximum distress, and that in the interim he neglected some of the critical aspects of the business.³ The dissent would have this court substitute its interpretation of the evidence for the findings made by the jury, and would have us do so without having observed the demean- or of the witnesses. The Supreme Court and this circuit have consistently held, however, that when reviewing jury verdicts the appellate court may not redetermine the facts as found by the jury, nor substitute its view of the evidence for that of the fact-finder.⁴ The scope of this court’s review of jury findings is thus far narrower than the clearly erroneous standard to be applied in review of facts found in non-jury trials.⁵ Although there is also ample evidence to support contrary findings, we cannot now replace the conclusions that the jury could have made in reaching its verdict with our own view of the facts. Thus, unless we are prepared to hold that as a matter of Pennsylvania law the factual findings that the jury could have made do not amount to a breach of fiduciary duty by the president and director of a corporation, we cannot require the entry of a judgment notwithstanding the verdict on interrogatories 1(a) and (b). The conduct which could have been found went beyond preparing for or accepting new employment in competition with FMC. It amounted to taking up a loyalty to a potential purchaser while at the same time inflicting harm upon the business of the present employer by neglecting its business and by arranging its affairs so that on Franklin’s departure that business would suffer.

B. Civil Conspiracy Under Pennsylvania Law

Chief Judge Seitz and Judge Sloviter join to reverse the civil conspiracy verdict, a reversal from which I dissent. Pennsylvania recognizes the tort of civil conspiracy, which is defined as a combination between two or more persons to do an unlawful act, or to do a lawful act by unlawful means, or to accomplish an unlawful purpose.⁶ Special verdict interrogatory 5 inquired:

5. Did [ABC] and Mr. Franklin conspire together to commit unlawful acts or lawful acts with an unlawful purpose in regard to the alleged breach of a fiduciary duty by Mr. Franklin, or in regard to the alleged systematic inducement of key [FMC] employees, or in regard to the alleged disclosure of trade secrets, for the purpose of destroying [FMC] in order to arrange its acquisition at a depressed price or to otherwise injure plaintiff?

The jury answered affirmatively. The interrogatory as framed is consistent with the trial judge’s charge, quoted in the margin, a charge to which defendants made no objection.⁷ The defendants do not argue that interrogatory 5 misstates the elements of the Pennsylvania tort. Rather, they attack the verdict on that interrogatory on two grounds: insufficiency of the evidence and inconsistency with another verdict answer. I'turn first to the sufficiency of the evidence.

The jury could have found that a conspiracy arose because of the coincidence of interests of Franklin and ABC. ABC desired to buy FMC at the lowest possible price, perhaps motivated by its obligations to its own shareholders. Franklin, motivated by his personal antagonism for Rosen, failed to reveal to Rosen that ABC desired to acquire FMC and acted so as to maximize the impact of his departure, thus depressing the price at which his new employer could acquire FMC. Thus, the jury could have found a conspiracy to depress FMC’s price to ABC. Moreover, there is ample evidence of concert of action among Franklin and various agents of ABC. There is also evidence that the subject of acquiring FMC’s business was discussed and that negotiations in preparation for that purchase actually took place. Moreover, there is evidence that ABC participated in Franklin’s breach of fiduciary duty by acquiring from Franklin while he was president of FMC, confidential information about FMC’s point of sale data processing system. When he became an employee of ABC, Franklin issued false statements to the press, which ABC never corrected, and which the jury could view as part of an effort to depress the market value of FMC. The jury could have found that, even before he left FMC, there was concert of action with respect to an approach by Franklin to other key FMC employees and evidence of a systematic approach, following his departure, to FMC employees who ultimately were hired away and whose loss made it difficult to carry on FMC’s business profitably. Assuming for present purposes that it was lawful for ABC to hire Franklin, or any other at-will employee of FMC, solely for its own purposes, it was not lawful to do so in furtherance of a conspiracy to injure FMC in order to acquire its business at a depressed price. Since there was concert of action both with respect to the hiring and with respect to the acquisition, and since the offered price was lower than FMC’s owners thought reasonable, the jury could have found from all the circumstances a civil „ conspiracy under Pennsylvania law.

I agree with Chief Judge Seitz that the appropriate evidentiary standard to be applied when civil conspiracy would be proven by circumstantial evidence is the “full, clear and satisfactory” standard.⁸ However, that standard is one to be applied by the jury and not a standard for this court to apply independently on appeal.⁹ We are thus not free to substitute our weighing of the facts for the weight as determined by the jury. That jury was properly instructed and its verdict, supported by evidence which the jury could have found convincing may not be disturbed by this court.¹⁰

The defendants also urge, however, that the affirmative answer to interrogatory 5 is inconsistent with the negative answer to interrogatory 2, which asked: •

2. Did [ABC] or Mr. Franklin, for the purpose of crippling and destroying [FMC] rather than obtaining the services of particularly skilled employees, systematically induce key [FMC] employees to leave [FMC] and join [ABC]?

The role of this court in reviewing seemingly inconsistent answers to special interrogatories is to search for a reading of the jury’s responses that makes them consistent. “Where there is a view of the case that makes the jury’s answers . . . consistent, they must be resolved that way.” ¹¹ Defendants contend that the negative answer to interrogatory 2 established that the solicitation of FMC employees was not for an unlawful purpose and that therefore any concert of action did not amount to a civil conspiracy. The trial court rejected this contention, pointing out that interrogatory 2 dealt with the separate substantive tort of inducing employees to leave their employment for the purpose of destroying their employer’s business.¹² In submitting that interrogatory the court instructed the jury to employ a balancing test to determine whether the purpose to cripple or destroy outweighed the permissible purpose to hire skilled employees for ABC’s own business. At most, then, the negative answer to interrogatory 2 established that, on balance, if defendants had a purpose of crippling or destroying FMC by means of soliciting FMC employees, it was outweighed by ABC’s purpose of obtaining for itself the services of highly qualified employees. That finding, however, did not preclude the jury from further finding that, notwithstanding this permissible predominant purpose, ABC and Franklin also conspired to depress the market price at which FMC could be acquired.

This court need not decide whether the balancing charge on interrogatory 2 correctly stated the governing law of Pennsylvania. It is enough to note, as did the trial court, that there is no inconsistency between the answer to interrogatory 2 and a finding, on interrogatory 5, that the defendants conspired to commit acts for the purpose of injuring FMC enough to depress its sale price. I agree with the trial court that there are no grounds for granting a motion for judgment notwithstanding the verdict on interrogatory 5. Thus, I would affirm the civil conspiracy verdict.

C. Damages Awarded for the Torts Found by the Jury

The defendants also contend that even assuming tortious conduct they are entitled to judgment notwithstanding the verdict because there was insufficient proof of damages, or at worst that they are entitled to a new trial because the awards which are left standing duplicate elements of damage. The court submitted the interrogatories concerning liability, which included interrogatories 1 and 5, before the jury was permitted to consider damages. Thereafter a separate hearing on damages was held, and further interrogatories dealing solely with damages were submitted. These interrogatories and the jury’s answers to them, included the following:

1. Were any of the defendants’ acts which you found to be wrongful in the first phase of this case a substantial factor in causing loss to [FMC]?

ANSWER: Yes

2. State in dollars, the economic loss incurred by [FMC] which was substantially caused by all the acts of the defendants which you found to be wrongful.

$2,013,000

3. State in dollars, the amount of the economic loss incurred by [FMC] which was substantially caused by Mr. Franklin’s breach of his fiduciary duty.

$25,000

4. State in dollars the amount of the economic loss incurred by [FMC] which was substantially caused by the defendants purposefully inducing (during the period of May to July, 1974) plaintiff’s employees to terminate their employment.

$677,000

5. State in dollars the amount of the economic loss incurred by [FMC] which was substantially caused by the defendants’ conspiracy.

$1,311,000

It is readily apparent that the jury found damages separately for the breach of fiduciary duty, the unlawful inducement of employees, and the civil conspiracy, which when totalled equalled $2,013,000. The court granted judgment notwithstanding the verdict on the $677,000 award, a matter which we discuss in Part III. F., infra. Here we are concerned with the findings that $25,000 in damages was occasioned by Franklin’s breach of fiduciary duty, and that $1,311,000 in damages occurred as a result of the civil conspiracy as defined in interrogatory 5.

The alleged breach of fiduciary duty occurred during the time when Franklin was president and manager of FMC. As we have noted, there was evidence from which the jury could have found that during that time Franklin was no longer acting with undivided loyalty to FMC, but had entered into a course of conduct harmful to his employer. From the evidence the jury also could have found, however, that most of the harm resulting from that course of conduct did not occur while Franklin remained an employee of FMC; it was not until after Franklin’s departure that large losses were incurred by FMC. There is, however, one item of damage that the jury probably attributed to Franklin’s breach of fiduciary duty and which was incurred while Franklin was still an employee of FMC. In the damage phase of the trial, FMC offered evidence from which the jury could have found that while he was negotiating with ABC, Franklin delegated to an untrained subordinate the important duty of obtaining advertising rebates, that he had not previously delegated this responsibility, but had performed this task personally, and that this duty was neglected by both Franklin and the unsupervised subordinate. As a result $25,000 in advertising rebates to which FMC ordinarily would have been entitled was lost because applications for the rebates were not timely made. The jury award in answer to damage phase interrogatory 3, dealing with damages resulting from the breach of fiduciary duties, is for precisely the amount of lost rebates.

The defendants contend that the evidence concerning the $25,000 amount was not presented in the liability phase of the case and thus cannot be considered as evidence supporting the finding of a breach of Franklin’s fiduciary duty. We do not rely on it for that purpose. There is in the record on the liability phase other sufficient evidence from which the jury could find a departure from the standard of undivided loyalty. There is evidence in the damage phase from which the jury could have found that Franklin’s divided loyalty resulted in neglect on his part, to which the loss of $25,000 was attributable.

As the trial court pointed out, there is also evidence of Franklin’s salary and of the value of the time he spent negotiating with ABC when he should have been managing FMC. Although the trial court could not determine precisely which evidence the jury relied upon in arriving at the $25,000 award, we hold that the court properly concluded that there was sufficient evidence from which an estimate of damages caused by the breach could have been made. No more is required by Pennsylvania law. Ashcraft v. C. G. Hussey & Co., 359 Pa. 129, 132-33, 58 A.2d 170, 172 (1948) (“reasonable quantity of information must be supplied . so that the jury may fairly estimate the amount of damages from the estimate”); see Marrazzo v. Scranton Nehi Bottling Co., 422 Pa. 518, 525, 223 A.2d 17, 21 (1966) (evidence must be sufficient to support verdict without resort to conjecture); Smith v. Bell Tel. Co., 397 Pa. 134, 138, 153 A.2d 477, 479 (1959). The defendants’ motion for judgment notwithstanding the verdict in the amount of $25,000 for breach of fiduciary duty was therefore properly denied.

The loss attributed by the jury to the civil conspiracy is equal to the amount of all actual losses incurred by FMC in the fiscal years 1974 through 1977. Based upon the evidence referred to in Part I. B., supra, and upon other evidence concerning the key role Franklin played in FMC’s prior successes, the jury could have found that thesé losses would not have been incurred but for the acts of defendants in furtherance of the conspiracy. ABC complains that $130,000 of the $1,311,000 of losses accrued in fiscal year 1974 prior to October, 1973, and was the result of start up expenses of new stores and other factors, and was not attributable to any acts of defendants. The jury could well have concluded, however, that had Franklin not joined in a civil conspiracy that $130,000 would have been earned in the period after January 1, 1974, and therefore that the loss for the earlier period would have been eliminated. Since there is evidence upon which a reasonable estimate of damages could have been made by the jury, the verdict may not be disturbed.

Nor are we persuaded that there has been a duplication of damages. The trial court instructed the jury that it should find damages separately for each alleged tort and there is no indication that this instruction was disregarded. As we have pointed out, the $25,000 award probably reflects a determination that that specific revenue loss occurred as a result of Franklin’s breach of fiduciary duty, while the accumulated losses were found to have been attributable to the conspiracy. There was evidence, including expert accounting testimony, sufficient to permit the jury to assess the damages in a nonspeculative manner, consistent with the requirements of Pennsylvania law. We will not impose in favor of a tortfeasor a rule that a verdict will be set aside in the absence of certainty as to the accuracy of the jury’s estimate.

D. Trial Errors

The defendants further contend that even if the verdict should not be set aside for lack of evidence, a new trial must be ordered because of various trial errors. We turn to these alleged errors.

(1) Bifurcation

Franklin argues that the trial court erred in bifurcating the liability and damages phases of the trial. He relies, in particular, on a statement by the trial judge that he believed that every trial should be so bifurcated. The record discloses, however, that the court made an independent determination that bifurcation was appropriate in this case. Thus the trial court exercised the informed discretion to bifurcate which this court has held is required. Lis v. Robert Packer Hosp., 579 F.2d 819, 825 (3d Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 346 (1978). The case was complex, involving nine separate counts alleging state and federal law grounds for recovery. There were four separate parties. The pretrial order provided for 73 live witnesses, 353 exhibits, and hundreds of pages of deposition testimony to be read into the record. The trial would in any event be a long one, but could have been considerably shorter, had the jury decided in favor of the defendants in the liability phase. The court considered all of these factors in ordering bifurcation over the objection of all parties. On this record, we cannot hold that this ruling was an abuse of discretion.

Nor are we persuaded by Franklin’s claim of prejudice. He argues that bifurcation eliminated, in the liability phase, the requirement of a finding of impact, while the damage awards were preordained by the reluctance of the jurors to erase their liability verdicts. This argument is entirely speculative. The liability phase of the case was submitted with appropriate instructions and detailed interrogatories, and on the damage phase the interrogatories were carefully tailored to the liability determinations. Thus, we reject defendants’ arguments that a new trial is required because of improper bifurcation.

(2) Confusing Special Verdict Interrogatories

Defendant Franklin also contends that the special verdict interrogatories on the separate Pennsylvania law torts of employee inducement and conspiracy were hopelessly misleading, duplicative, and confusing and resulted in inconsistency requiring a new trial.¹³ We here consider Franklin’s contention that confusion over liability interrogatory 4, which concerned defendants’ alleged purposeful inducement of FMC’s employees, in some way tainted the verdict on interrogatory 5 concerning defendants’ conspiracy. The jury answered affirmatively interrogatory 4:

(a) Did [ABC] purposefully induce or cause [FMC] employees to discontinue their business relationship with [FMC] without a privilege so to do?

(b) Did Mr. Franklin, after leaving [FMC], induce or cause [FMC] employees to discontinue their business relationship with [FMC] without a privilege so to do?

It also answered affirmatively interrogatory 5, quoted in Part II. B., supra. The source of the confusion, according to Franklin, is that the court instructed the jury that in considering whether there was a civil conspiracy it could consider the claim of the plaintiff under interrogatory 4 as well. That instruction was obviously correct, for inducement of employees might well evidence a conspiracy to harm FMC so as to reduce its market price. Thus the affirmative answers to interrogatories 4(a) and 4(b) are entirely consistent with the affirmative answer to interrogatory 5.

The trial court, however, granted defendants’ motion for judgment notwithstanding the verdict on interrogatories 4(a) and 4(b). The defendants urge that this action, which we consider in Part III. E., infra, mandates a new trial because the jury may have relied on its verdicts on 4(a) and 4(b) in finding liability on interrogatory 5. We need not decide what effect the judgment notwithstanding the verdict on interrogatory 4 would have on the civil conspiracy verdict under interrogatory 5, for in Part III. E., infra, we conclude that the verdict on interrogatory 4 should not have been disturbed. The two interrogatories were addressed to separate torts under Pennsylvania law. Evidence of the tort of interference with employees was relevant on the civil conspiracy count, and the defendants could properly be found to have committed both torts. There is no indication that the jury was confused by the interrogatories, and thus we reject defendants’ contention that a new trial is required on this ground.

(3) Exclusion of Testimony

The defendants offered the testimony of Larry Golinski, FMC’s Atlanta Regional Manager, to rebut the plaintiff’s damage evidence and to prove that the losses suffered in FMC’s Atlanta stores were not caused by ABC. Golinski’s testimony and that of several other witnesses, including some witnesses offered by FMC, was excluded because the parties failed to list those witnesses within the time restrictions set forth in the court’s pretrial order. The defendants did not satisfy the court that their failure to list the witness Golinski in the time specified in the pretrial order was excusable neglect. The court found that FMC would be prejudiced because of the probable necessity of disrupting the orderly and efficient trial of the case so as to afford it the opportunity for discovery respecting Golinski’s testimony. Finally, the court noted that any prejudice to the defendants caused by the exclusion could be cured by resort to the testimony of other available witnesses. Recognizing that exclusion of critical testimony by unlisted witnesses is disfavored, Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 904-05 (3d Cir. 1977), we note that the trial court’s exclusion of evidence because of the failure of counsel to adhere to a pretrial order will not be disturbed on appeal absent a clear abuse of discretion. De Laval Turbine, Inc. v. West India Indus., Inc., 502 F.2d 259, 263-64 (3d Cir. 1974). The trial judge took into account all of the relevant considerations and we cannot say that, in weighing them when making the Golinski ruling, he abused his discretion. We therefore decline to order a new trial on this ground.

(4) Argument by Counsel for FMC

Finally, relying on Draper v. Airco, Inc., 580 F.2d 91 (3d Cir, 1978), defendants contend that the arguments of FMC’s counsel were so inflammatory and improper that a new trial should be granted. Id. at 94-95. The trial court rejected this contention. Observing that both sides were well repre sented by aggressive counsel, the court noted that the questioning of witnesses by FMC’s attorney was entirely appropriate and that his argument to the jury did not exceed the scope of the evidence. There were references to the.economic strength of the defendants as compared to that of the plaintiff. Evidence of this economic disparity was properly admitted in this case because one of plaintiff’s contentions was that ABC and Franklin were engaging in predatory acts aimed at acquiring FMC’s business. The arguments of FMC’s counsel are not grounds for a new trial.

E. Summary

Thus we reject the defendants’ contentions that the $25,000 award should be set aside and judgment entered instead in their favor. We reject, as well, their contention that they are entitled to a new trial on the breach, of fiduciary duty count. Chief Judge Seitz and Judge Sloviter reverse the civil conspiracy award, a reversal from which I dissent herein.

III. PLAINTIFF’S CONTENTIONS

FMC appeals from the grant of directed verdict on three of its claims, and on the grant of judgment notwithstanding the verdict on two others.

A. Directed Verdict on the Negative Covenant Claim

The contract of employment between FMC and Franklin provided:

Franklin agrees that if his employment with the Company shall for any reason terminate, he will not for a period of one year following such termination in any way serve or be connected with or have any interest in any business operating within 50 miles from City Hall, Philadelphia, Pennsylvania, which shall compete in any respect with the business then being conducted by the Company.

The business of FMC was the sale at retail of records, phonographs, radios, televisions, musical instruments, and related products. Franklin went to work for ABC in Cherry Hill, New Jersey, well within fifty, miles from City Hall. However, ABC did not engage in music retailing within that radius. Indeed the evidence is that during the life of the covenant ABC’s only retail outlets were in Seattle, Washington, and Providence, Rhode Island. The trial court concluded that a directed verdict should be entered on the count charging a breach of the post employment negative covenant. We have examined the evidence in the light most favorable to FMC, and we agree that there was no evidence from which the jury could find a breach of the covenant. During the year following Franklin’s departure from FMC there was no competition within the fifty mile radius between ABC and the business being conducted by FMC, as that business was defined by the contract. Serving as a manager of ABC’s retail music business elsewhere, from an office in Cherry Hill, was not a breach of the covenant by Franklin.

B. Directed Verdict on the Trade Libel Claim

After he left FMC’s employ, Franklin made statements to certain trade publications that FMC claims were -defamatory under Pennsylvania law. The statements complained of are of two types: statements to the effect that Franklin wanted ABC to, or that ABC was prepared to, make an offer to buy FMC from Rosen; and statements alluding to ABC’s goal of opening 100 music stores3 within 5 years, as facetiously compared to FMC’s goal of opening 100 stores in 120 years.

Under Pennsylvania law, whether a given publication is capable of defamatory meaning is, in the first instance, a question for the court and not for the jury.¹⁴ We have followed this allocation of functions in diversity defamation actions.¹⁵ Pennsylvania applies the definition of defamation found in Restatement of Torts § 559 (1938), which provides that “[a] communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Id.; see Cosgrove Studio & Camera Shop, Inc. v. Pane, 408 Pa. at 318, 182 A.2d at 753.

The trial court concluded that the statements attributed to Franklin could not, as a matter of law, have a defamatory meaning. We have examined each of the statements independently and have reached the same conclusion. Franklin did not impute to FMC insolvency, financial embarrassment or credit unworthiness.¹⁶ The statements of desire or intention to purchase could not be understood as disparaging. The statement concerning the anticipated success of ABC and the facetious reference to FMC’s slower anticipated rate of growth, simply could not be construed by reasonable jurors as falling within the terms of the Restatement’s definition of defamation. See Restatement of Torts § 559 (1938).

C. The Directed Verdict on the Sherman Act Claim

The jury found that there was a civil conspiracy to injure FMC. Plaintiff here contends- that the evidence that supports the conspiracy verdict also sufficed to send the plaintiff’s claim under section 1 of the Sherman Act, 15 U.S.C. § 1 (1976), to the jury. The court directed a verdict on this count at the end of the plaintiff’s case. Thus the defendants’ evidence on that count is not before us, and at best a new trial would be required. The trial court refused to order a new trial, declining to hold that the intentional commission of the state tort of civil conspiracy directed against a business in interstate commerce established a per se violation of the Sherman Act. Rather, the court held, a rule of reason analysis was appropriate. Under such an analysis FMC was required to show a substantial impact on or restraint of trade affecting competition in a product market.¹⁷ FMC failed to introduce any evidence with respect to the existence of any competition between itself and defendants or any impact on its competition with others. The trial court held that the failure to introduce evidence of an anticompetitive effect in the retail music market was fatal to FMC’s Sherman Act claim.

If, under the governing law, a showing of anticompetitive effect beyond merely being driven out of business is required, then the ruling of the district court is undoubtedly correct.¹⁸ Under the law of this circuit, a civil conspiracy for a purpose unlawful under Pennsylvania law must be accompanied by proof of an effect upon competition in a defined market in order to make out a prima facie violation of section 1 of the Sherman Act. That being so, we have examined the record to determine if it contains the quantum of proof required by such cases as Evans v. S. S. Kresge Co., 544 F.2d 1184, 1194-96 (3d Cir. 1976), cert denied, 433 U.S. 908, 97 S.Ct. 2973, 53 L.Ed.2d 1092 (1977) and American Motor Inns, Inc. v. Holiday Inns, Inc., 521 F.2d 1230, 1246-47 (3d Cir. 1975). We hold that it does not. While I remain personally dubious about the legal proposition that a conspiracy, unlawful under state law, to injure a business in commerce so as to depress its price for purposes of an acquisition, is not a Sherman Act violation absent proof of injury to competition in the line of commerce in which the victim is engaged, the law of this circuit is clear. The directed verdict was proper.

D. Judgment Notwithstanding the Verdict on Punitive Damages

The jury was asked if FMC was entitled to an award of punitive damages and answered affirmatively. It awarded $25,000 against Franklin and $1,000,000 against ABC. On the defendants’ motion for judgment notwithstanding the verdict the trial court set these awards aside, holding that there was insufficient evidence to support the punitive damage awards under Pennsylvania law. The court noted that the quantum of the award bore .a reasonable relationship to the compensatory damages which the jury found to be due, and would be sustainable if there were proof of conduct to justify such an award. Under Pennsylvania law, however, an award of punitive damages must be supported by evidence of conduct by the defendants more serious than the mere commission of the underlying tort. Pennsylvania courts recognize the standards governing punitive damages set forth in section 908 of the Restatement of Torts (1938).¹⁹ Therefore, we must look for evidence of aggravated conduct involving bad motive or reckless indifference. Aside from the evidence tending to establish the commission of the substantive torts, or the interference with employees and the civil conspiracy, there is no such evidence. Nor is this a case like Chuy v. The Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1978), where the substantive tort itself requires proof of extreme or outrageous conduct intentionally or recklessly engaged in. Id. at 1278-79. Thus we agree with the trial court that judgment notwithstanding the verdict on the punitive damages verdict was proper.

E. Judgment Notwithstanding the Verdict on Interference with FMC’s Employees

FMC pleaded, under Pennsylvania law, claims that ABC and Franklin unlawfully interfered with contractual relationships between it and its employees. The district court, relying upon the Pennsylvania Supreme Court’s holding in Morgan’s Home Equipment Corporation v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957), concluded that Pennsylvania would recognize two possible theories of recovery on the evidence presented. The Martucci decision discusses employment inducement as follows:

[1] The systematic inducing of employes to leave their present employment and take work with another is unlawful when the purpose of such enticement is to cripple and destroy an integral part of a competitive business organization rather than to obtain the services of particularly gifted or skilled employes.

[2] So also, when the inducement is made for the purpose of having the employes commit wrongs, such as disclosing their former employer’s trade secrets or enticing away his customers, the injured employer is entitled to protection.

Id. at 633-34, 136 A.2d at 847. Perceiving in Martucci two bases upon which the defendants might be found liable for the Pennsylvania tort of interference with an at-will contractual relationship, the trial court formulated two separate verdict interrogatories, interrogatories 2 and 4.²⁰ Examination discloses that interrogatory 2 closely tracks the first Martucci formulation of conduct which would amount to tortious interference, while the second is framed more in the language of the Restatement (First) Torts §§ 767-68. The Restatement (First) of Torts § 766 formulation of the general rule was that one who “without a privilege to do so” induces another not to perform a contract is liable for the harm caused thereby. Section 768 recognized the “privilege” of a competitor, and section 767 listed factors determining the existence of a privilege in general. The Restatement of Torts (Second) abandons the “privilege” formulation. In section 766 it refers to “intentionally and improperly” interfering with the performance of a contract, and in section 766B to “intentionally and improperly” interfering with a prospective contractual relationship. Restatement (Second) of Torts §§ 766, 766B (1977). In place of the listing of factors determining the existence of a privilege, section 767 of the Restatement Second lists factors determining whether the interference is “improper.” These factors include:

(a) the nature of the actor’s conduct;

(b) the actor’s motive;

(c) the interests of the other with which the actor’s conduct interferes;

(d) the interests sought to be advanced by the actor;

(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other;

(f) the proximity or remoteness of the actor’s conduct to the interference; and

(g) the relations between the parties.

Id. § 767. These general rules for determining the propriety of interferences are refined in section 768(1) which deals specifically with competition as a proper or improper interference with existing or prospective contractual relations. That section provides:

One who intentionally causes a third person . . . not to continue an existing

contract terminable at will does not interfere improperly with the other’s relation if

(a) the relation concerns a matter involved in the competition between the actor and the other and

(b) the actor does not employ wrongful means and

(c) his action does not create or continue an unlawful restraint of trade and

(d) his purpose is at least in part to advance his interest in competing with the other.

Id. § 768(1). The Supreme Court of Pennsylvania has now substituted the intentional and improper formulation of the Restatement (Second) for the old privilege formulation. Adler, Barish, Daniels, Levin, Etc. v. Epstein, 482 Pa. 416, 431-34, 393 A.2d 1175, 1183-84 (1978), appeal dismissed, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979). That case involved interference in the at-will contractual relationship between a law firm and its clients by former associates of the firm. The case focused on activities by the firm’s associates both prior to and following the termination of their employment, but while they still had access to the firm’s premises. Obviously upon the termination of their employment they became actual competitors of the firm, and prior thereto they were potential competitors. The court applied the standards of section 767 rather than the specific treatment of interference by a competitor dealt with in section 768. Id. This suggests that when the interference involves the activity of a present or former employee the general standards of section 767 rather than those of section 768 apply, even though the employee is a potential or actual competitor. How the Pennsylvania court would treat concert of action between present or former employees and a third party competitor— the fact pattern in the instant case — is not disclosed in Adler, Barish. It does seem clear from that case that earlier opinions of the Pennsylvania Supreme Court remain reliable guides to the tort of interference with at-will employees.²¹ In Adler, Barish however, that court greatly expanded the permissible bases for tort liability. The significance of the revised Restatement is that it is no longer necessary that the interference be independently tortious; it is actionable so long as it is improper. See Restatement (Second) of Torts § 767, Comment h. Moreover, the comments to the Restatement Second make clear that factors to be considered in determining whether an interference is improper include “[r]ecognized standards of business ethics and business customs . . . concepts of fair play and whether the defendant’s interference is not ‘sanctioned by the rules of the game.’ ” Id. § 767, Comment j. The Pennsylvania Supreme Court’s adoption of the Restatement Second thus permits finding ABC and Franklin liable on the ground that they violated the accepted rules of fair play, whether or not their conduct could be said independently to be tortious. The court thus charged that two separate courses of conduct with respect to employee inducement were actionable under Pennsylvania law. The first, systematic inducement for the purpose of destruction, was covered by interrogatory 2. The second, covered by interrogatory 4, was defined by reference to Restatement (First) Torts §§ 767 and 768. We reject defendants’ contention that interrogatories 2 and 4 were duplicative or confusing and we hold that interrogatory 4, read in the light of the court’s charge, satisfies Pennsylvania law.

Since verdict interrogatory 4, as charged, set forth a proper basis for liability under Pennsylvania law, the propriety of a judgment notwithstanding the affirmative verdict on that interrogatory depends upon the sufficiency of the evidence. We must determine “whether, as a matter of law, the record is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief.” Vizzini v. Ford Motor Co., 569 F.2d 754, 758 (3d Cir. 1977) (quoting Neville Chem. Co. v. Union Carbide Corp., 422 F.2d 1205, 1211-12 (3d Cir. 1970) (applying Pennsylvania law)).

In granting defendants’ motion for judgment notwithstanding the verdict on interrogatory 4, the trial court started with the generally recognized rule that an employer is not free to restrict the post employment activities of his at-will employees, or to prevent them, while employed, from looking for other employment. See United Aircraft Corp. v. Boreen, 284 F.Supp. 428, 442 (E.D.Pa.1968), aff’d, 413 F.2d 694 (3d Cir. 1969); Spring Steels, Inc. v. Molloy, 400 Pa. 354, 357, 162 A.2d 370, 374—75 (1960). As a necessary corollary of that principle, other employers are free to compete with the first employer for the services of at-will employees. The Restatement formulations in both versions of section 768 recognize that corollary. But as Martucci and Adler, Barish illustrate, the fact that the contractual relationship is at-will does not mean that it is completely beyond the protection of the law.

The trial court found that in inducing FMC’s employees to leave their employment with FMC there was no evidence from which the jury could have found that defendants resorted to improper means. We do not agree. From the evidence discussed in Parts I and II, supra, the jury could have found that the initial approach to Franklin by ABC was motivated by ABC’s intention to seek to acquire FMC’s business. It could also have found that ABC and Franklin joined in a civil conspiracy to accomplish that acquisition at a depressed price, at a time when Franklin was still serving as an officer and director of FMC. It could have found that Franklin’s initial approach to FMC’s employees on the day on which he terminated his employment was the result of that preexisting conspiracy. It could have found that while the conspiracy continued, approaches were made to other employees, and that one employee of FMC was encouraged to recruit other FMC employees while he was still on its payroll. It could have found that FMC’s employees were encouraged to depart at such times as would adversely affect FMC’s business and thus affect the market price for that business. Pennsylvania would hold that such conduct is evidence of an improper motive under sections 767(b) and 767(c) and evidence of the resort to wrongful means under section 768(l)(b) of the Restatement (Second) of Torts. Encouraging a breach of fiduciary duty and civil conspiracy are, after all, wrongs. If those wrongs are related to the interference with employment, as on this record they can be, the civil tort of interference with a prospective relationship with an at-will employee under Pennsylvania law has been made out.

The trial court relied on two factors in rejecting this analysis. First the court observed that the jury’s answer to interrogatory 2 established that the defendants had at least a primary purpose to benefit themselves in a business sense by hiring plaintiff’s employees. We do not agree that the affirmative answer to interrogatory 2 established that fact; the answer equally supports the hypothesis that the defendants did not want to destroy FMC, but sought only to depress its sales price. Even if we interpret the answer as did the trial court, it still must be reconciled with the finding, on interrogatory 5, that the defendants engaged in a civil conspiracy directed at FMC. The jury could have found on the record evidence that the defendants’ motives were mixed, and that while the first factual basis for liability set forth in Martucci had not been satisfied, the second had. Second, the trial court relied on the negative jury verdict on interrogatory 3, which inquired whether ABC or Franklin had misappropriated trade secrets. Such a theft would, under Pennsylvania law, be separately actionable. Such a theft, accomplished through inducement of employees, would also be actionable under the Restatement formulation. Restatement (Second) of Torts §§ 766-768 (1977). The fact that the particular improper motive of theft of trade secrets was not found in no way negates the possibility — on this record the probability — that the jury found another improper motive and other wrongful means. We refer, of course, to the motive of depressing the acquisition price and the means of encouraging a breach of fiduciary duty and of civil conspiracy. Under all of the circumstances of this case we cannot hold as a matter of law that the record is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief. The judgment notwithstanding the verdict on interrogatory 4 was improper.

F. Damages for Interference With Employees

Because the trial court granted judgment notwithstanding the verdict on interrogatory 4 it was not necessary for it to consider the defendants’ objections to the amount of damages, $677,000, which the jury attributed to that tort. Since we have held that the liability verdict should stand, we must consider those objections. They are twofold: that the damages are entirely speculative and that they are duplicative of those found on the civil conspiracy claim. We reject both objections.

PMC offered evidence both of losses and of projected lost profits. As we noted in Part II. C., supra, the amount awarded on the conspiracy claim equals the amount of all actual losses incurred by FMC in fiscal years 1974 through 1977. In addition to the evidence suggesting the amount of those losses FMC offered projections of lost profits for the same years based upon its actual business experience in the previous years. The basis for the extrapolation from this historical experience was fully developed in the testimony by witnesses, including a certified public accountant, who were found to be qualified to make such projections. The projection, if fully accepted by the jury, would suffice to sustain an award for lost profits of $3,388,000. FMC’s experts did not, however, go unchallenged. The defendants’ experts attacked the methods of projection, the likely effect of a recession on plaintiff’s business, and the projected amount. Clearly, then, there was an evidentiary basis upon which an estimate of lost profits could have been made. As we have noted, this is all that Pennsylvania law requires.²²

As to the defendants’ second contention, the jury was instructed not to duplicate damages, and nothing in the record suggests that it disregarded that instruction. Indeed it seems clear that it attributed $25,-000 in lost advertising rebates to Franklin’s breach of fiduciary duty occurring prior to January 1974, $1,311,000 in losses to the defendants’ conspiracy, and $677,000 to the acts of interference with the plaintiff’s employees. The total award is well -within a range of damages supportable by the evidence, and we see no reason why judgment should not be entered for the full amount.

G. Summary

Thus we reject FMC’s challenges to the directed verdicts on its negative covenant, trade libel and section 1 Sherman Act claims, as well as its challenge to the entry of judgment notwithstanding the verdict on its punitive damage claim. We agree, however, that the trial court erred in granting judgment notwithstanding the verdict on interrogatory 4, and that judgment on that claim should be entered in the plaintiff’s favor in the amount of the $677,000 found by the jury.²³

IV. CONCLUSION

Judge Sloviter would concur in the result of all parts of this opinion except for Part II. B. As to Part II. B., the civil conspiracy claim, Chief Judge Seitz and Judge Sloviter would reverse the trial court’s decision to sustain the jury verdict. Therefore, the judgment appealed from will be affirmed except with respect to the civil conspiracy verdict, which will be reversed, and the judgment notwithstanding the verdict on interrogatory 4, which will be reversed with directions to enter judgment in favor of the plaintiff in the amount of $677,000. Costs will be taxed in favor of FMC.

1 . See United Aircraft Corp. v. Boreen, 413 F.2d 694, 700 (3d Cir. 1969) (at-will employees secretly preparing to compete with employer while still employed; no breach of fiduciary duties); Spring Steels, Inc. v. Molloy, 400 Pa. 354, 362-64, 162 A.2d 370, 374-75 (1960) (same); J. Reisman and Sons, Inc. v. Snyder’s Potato Chips, 31 Somerset Legal J. 77, 87-88 (Pa.Ct.C.P.1975) (offering employment to competitor’s at-will employee not actionable unless purpose to harm competitor rather than to gain benefit of employee’s service).

2 . Seaboard Industries, Inc. v. Monaco, 442 Pa. 256, 261-62, 276 A.2d 305, 308-09 (1971) (quoting Lutherland, Inc. v. Dahlen, 357 Pa. 143, 151, 53 A.2d 143, 147 (1947)) (corporate opportunities; officers and directors owe corporation their undivided loyalty); see Higgins v. Shenango Pottery Co., 279 F.2d 46, 52 (3d Cir.) (applying Pennsylvania law; duty of “utmost good faith”), cert. denied, 364 U.S. 899, 81 S.Ct. 232, 5 L.Ed.2d 193 (1960).

3 . In Part II. C., infra, we discuss the damages that were caused by Franklin’s breach of his fiduciary duty to FMC.

4 . E. g., Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 358-59, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962); Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520 (1944); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Hodgson v. Lloyd Brasileiro Patrimonio Nacional, 294 F.2d 32, 34 (3d Cir. 1961), cert. denied, 369 U.S. 848, 82 S.Ct. 931, 8 L.Ed.2d 8 (1962) (“appellate court will not interfere with a verdict returned by a jury simply because of its opinion as to the weight or preponderance of the evidence); see McPhee v. Reichel, 461 F.2d 947, 948 (3d Cir. 1972) (court will not disturb jury verdict based on proper instruction and supported by evidence); Mannke v. Benjamin Moore & Co., 375 F.2d 281, 284 (3d Cir. 1967) (appellate court may determine whether verdict on fraud count coincided with applicable evidentiary standard of “clear, precise, and indubitable,” but may not “remake” verdict); cf. Vizzini v. Ford Motor Co., 569 F.2d 754, 758 (3d Cir. 1977) (motion for judgment notwithstanding verdict tested by “whether, as a matter of law, the record is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief”).

5 . Compare, e. g., Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 358-59, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962) (review of jury findings of fact) with Fed.R.Civ.P. 52(a) (clearly erroneous test for trial court findings of fact).

6 . E. g., Landau v. Western Pa. Nat’l Bank, 445 Pa. 217, 224, 282 A.2d 335, 339 (1971); Fife v. Great Atl. & Pac. Tea Co., 356 Pa. 265, 52 A.2d 24, 27, cert. denied, 332 U.S. 778, 68 S.Ct. 42, 92 L.Ed. 362 (1947); Ballantine v. Cummings, 220 Pa. 621, 630, 70 A. 546, 549 (1908).

7 . The trial judge, in relevant part, charged the jury:

Plaintiff contends there was a plan or an agreement among the defendants to issue publicity, systematically solicit employees to cripple defendant, obtain trade secrets, induce employees, induce Mr. Franklin to breach his fiduciary responsibility all for the purpose of acquiring the plaintiff at a depressed price or to otherwise injure the plaintiff.

Record at 3530 (emphasis added).

8 . See Blank & Gottschall Co. v. First Nat'l Bank, 355 Pa. 502, 506, 50 A.2d 218, 220 (1947) (mere averment in complaint of conspiracy or fraud insufficient for finding of liability without factual support).

9 . See Mannke v. Benjamin Moore & Co., 375 F.2d 281, 284 (3d Cir. 1967) (“clear, precise and indubitable” standard for proof of fraud is evidentiary standard to be applied by jury; appellate court may not “remake” jury verdict).

10 . See note 4, supra, and accompanying text.

11 . Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 364, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962); Barnhart v. Dollar Rent A Car Systems, Inc., 595 F.2d 914, 917 (3d Cir. 1979). As the Supreme Court noted in Atlantic & Gulf Stevedores, to “search for one possible view of the case which will make the jury’s findings inconsistent results in a collision with the Seventh Amendment.” 369 U.S. at 364, 82 S.Ct. at 786.

12 . See Morgan’s Home Equip. Corp. v. Martucci, 390 Pa. 618, 633-34, 136 A.2d 838, 847 (1957) (recognizing two separate torts of interference). Interrogatory 2 and the torts recognized in Martucci are discussed in Part III. E., infra.

13 . In Part II. B., supra, we held that interrogatories 2 and 5, and the jury’s answers to them, are reconcilable. In Part III. E., infra, we consider the relationship between interrogatories 2 and 4. We here consider whether interrogatories 4 and 5 are logically consistent.

14 . Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971) (citing Restatement of Torts § 614(a) (1938)); Cosgrove Studio & Camera Shop, Inc. v. Pane, 408 Pa. 314, 318, 182 A.2d 751, 753 (1962).

15 . Pierce v. Capital Cities Communications, Inc., 576 F.2d 495, 502 (3d Cir.), cert. denied, 439 U.S. 861, 99 S.Ct. 181, 58 L.Ed.2d 170 (1978).

16 . Compare Sarkees v. Warner-West Corp., 349 Pa. 365, 367, 37 A.2d 544, 546 (1944) (imputing insolvency, financial embarrassment, credit unworthiness or business failure is actionable libel) with Scott-Taylor, Inc. v. Stokes, 425 Pa. 426, 428-29, 229 A.2d 733, 734 (1967) (exaggerated comparison of apartment house to chicken coop is incapable of defamatory meaning).

17 . See Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977) (outlining difference between rule of reason and per se analyses).

18 . In Sitkin Smelting & Refining Co. v. FMC Corp., 575 F.2d 440 (3d Cir.), cert. denied, 439 U.S. 866, 99 S.Ct. 191, 58 L.Ed.2d 176 (1978), I urged upon this court the view that an agreement in or affecting commerce but having only an unlawful main purpose, could never be justified on a rule of reason basis. Id. at 451 (Gibbons, J., dissenting). While a lawful main purpose might justify a restraint on commerce found to have only a minimal effect upon competition in the marketplace, a conspiracy unlawful at common law should not even trigger a rule of reason inquiry. See Albert Pick-Barth Co. v. Mitchell Woodbury Corp,, 57 F.2d 96, 102-03 (1st Cir.) cert. denied, 286 U.S. 552, 52 S.ct. 503, 76 L.Ed. 1288 (1932). I still adhere to that position. It was, however, rejected by the Sitkin Smelting majority, and that decision controls.

19 . Chambers v. Montgomery, 411 Pa. 339, 344-45, 192 A.2d 355, 358 (1963); Hughes v. Babcock, 349 Pa. 475, 480-81, 37 A.2d 551, 554 (1944); Focht v. Rabada, 217 Pa.Super. 35, 38, 268 A.2d 157, 159 (1970); see Medvecz v. Choi, 569 F.2d 1221, 1226 (3d Cir. 1977) (applying Pennsylvania law).

20 . Interrogatory 2 is quoted in Part II. B., supra, and interrogatory 4 is set forth in Part II. D. (2), supra. The jury responded negatively to interrogatory 2 and affirmatively to interrogatory 4. Pennsylvania courts have interpreted the Martucci formulation as setting forth two separate bases of liability. E. g., Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 182, 207 A.2d 768, 771 (1965).

21 . Justice Roberts, for example, quoted approvingly from Glenn v. Point Park College, 441 Pa. 474, 482, 272 A.2d 895, 899 (1971), wherein the court noted that

[t]he absence of privilege or justification in the tort under discussion is closely related to the element of intent. As stated by Harper & James, The Law of Torts, § 6.11, at 513-14 “. . . where, as in most cases, the defendant acts at least in part for the purpose of protecting some legitimate interest which conflicts with that of the plaintiff a line must be drawn and the interests evaluated. This process results in according or denying a privilege which, in turn, determines liability.” What is or is not privileged conduct in a given situation is not susceptible of precise definition. Harper & James refer in general to interferences which “are sanctioned by the ‘rules of the game’ which society has adopted”, and to “the area of socially acceptable conduct which the law regards as privileged,” id. at 510, 511, and treat the subject in detail in §§ 6.12 and 6.13.

Adler, Barish, Daniels, Levin, Etc. v. Epstein, 482 Pa. at 432-33, 393 A.2d at 1183-84.

22 . Ashcraft v. C. G. Hussey & Co., 359 Pa. 129, 132-33, 58 A.2d 170, 172 (1948).

23 . FMC also contends that the trial court erred in excluding evidence bearing on lost profits after 1977. At oral argument we were informed by counsel for FMC that if it received judgment in the amount found by the jury it would not press this alleged error as a basis for a new trial on damages. Therefore we have not considered the contention.