APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 72-466).
Seitz, Chief Judge, Gibbons and Rosenn, Circuit Judges. Rosenn, Circuit Judge, concurring and dissenting.
In these cross appeals the plaintiff Gordon Baughman, appellant in No. 75-1536, contends that the district court erred in reducing a judgment in his favor from $75,000 to $25,200, while the defendant, Wilson Freight Forwarding Company (Wilson), cross-appellant in No. 75-1537, contends that the district court erred in denying its motion for judgment n.o.v.*fn1 We remand for a modification of the judgment.
Baughman, an over-the-road truck driver, brought suit against his former employer, Cooper-Jarrett, Inc., and four other trucking companies including Wilson, charging that the defendants conspired to blacklist him from obtaining work in the trucking industry. Relief was predicated on the Sherman Act § 1 and § 2, 15 U.S.C. §§ 1, 2, and on a pendent Pennsylvania law claim for tortious interference with prospective contractual relationships. Trial of that action in January, 1974 resulted in a directed verdict in favor of all defendants on the Sherman Act § 2 claim, in favor of all defendants except Cooper-Jarrett on the pendent state law claim, and in favor of one defendant on all claims. The jury rendered a verdict against three of the remaining defendants on the Sherman Act § 1 claim and against Cooper-Jarrett on the pendent state law claim. It absolved one defendant of all liability. On the defendants' motion for judgment n.o.v. and for a new trial, the court granted a new trial.
The second trial commenced on October 9, 1974, against the three remaining defendants. After the jury was sworn but prior to plaintiff's opening statement two of the defendants, Cooper-Jarrett and Matlack, Inc., entered into a settlement agreement whereby they paid Baughman a total of $60,000 in compromise of the Sherman Act § 1 claim in return for a joint tortfeasor release. Baughman reserved all his rights against Wilson. The case went to trial against Wilson and the jury returned a verdict of $25,000 in Baughman's favor. Trebled pursuant to 15 U.S.C. § 15, the resulting judgment was $75,000.
Wilson moved for judgment n.o.v., and alternatively to reduce the judgment by crediting against it the $60,000 obtained in settlement from Cooper-Jarrett and Matlack. The court denied the motion for judgment n.o.v., but reduced the judgment to $25,200.*fn2
II. WILSON'S LIABILITY CONTENTIONS
Wilson makes two arguments in support of its contention that it is entitled to a judgment n.o.v. The first is that the court in a pre-trial ruling erred in failing to grant its motion for summary judgment because Baughman at that time produced no evidence suggesting a factual dispute over whether Wilson was a member of the conspiracy against him. This argument need not detain us. Wilson refers us to no authority for the proposition that an appellate court will after a jury trial and a verdict review an interlocutory order refusing to grant a motion for summary judgment. No reason in logic or policy suggests that we should do so. Indeed, the seventh amendment might impose an obstacle where, as here, there is sufficient evidence in the record for the case to have gone to the jury.
The second argument is that there is no properly admitted evidence showing that Wilson was a participant in the conspiracy to blacklist Baughman and no properly admitted evidence of the conspiracy.
The only evidence tending to connect Wilson to the blacklisting conspiracy was the testimony of Baughman respecting a Wilson employee named Umberger. If his testimony was either improperly admitted or insufficient, then the remaining evidence, consisting for the most part of admissions of alleged co-conspirators, was not admissible against Wilson. Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457 (1941).
Umberger was the Relay Supervisor or Local Manager of Wilson's Stanton freight terminal. Although employment applications were forwarded to Wilson's headquarters in Cincinnati before a hiring decision was made, Umberger screened out the majority of applications and communicated to applicants the hiring decision and the reasons therefor. Baughman testified over objection (42a):
Q. Go ahead. Tell the jury what Mr. Umberger, the terminal manager, told you and Mr. Fait ...