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MOSCONE v. WHYY

October 12, 1982

ROBERT MOSCONE, Plaintiff,
v.
WHYY, INC., Defendant



The opinion of the court was delivered by: BIUNNO

 This is a diversity suit filed here to recover on a claim for fees arising out of the bailment (lease or rental) of a mobile TV "truck" owned by defendant WHYY (a Philadelphia TV station) to Entertainment and Sports Programming Network, Inc. (ESPN), for 150 production days between July 1, 1979 and June 30, 1980.

 Trial was by the court without a jury, and so this opinion reflects the findings of fact and conclusions of law, as authorized by Rule 52(a), F.R.Civ.P.

 The claim is a State law claim, and so the applicable law is State law, Erie R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). The "choice of law" principles to be applied are those of New Jersey.

 New Jersey's current rules follow the "center of gravity" concept, an abstract idea bearing no resemblance to the entirely physical principle the label indicates. With due regard to the applicable rhetoric and euphemisms, the court is satisfied that New Jersey has little to do with the subject matter of the controversy, and that the "center of gravity" selected would probably be Pennsylvania. However, there does not seem to be any significant difference between the pertinent law of New Jersey and Pennsylvania, and so no firm choice need be made. See Rohm & Haas v. Adco., 689 F.2d 424, (CA3, 1982), at p. 429, point [5].

 In fact, plaintiff relied mainly on a Pennsylvania decision, along with one from New York and another from the U.S. District Court in the Eastern District of Pennsylvania. He could not find any pertinent New Jersey cases. The court has found several, as well as a decision of this Circuit based on New Jersey law, all of which are discussed later. All of them evidently express substantially the same principles from a substantive aspect, yet, while the court examines all of them, it is of the view that Pennsylvania law applies and controls. There is no "federal common law" for the subject field, as there is for labor law, see Plumbers & Pipefitters v. Local 334, 452 U.S. 615, 101 S. Ct. 2546, 69 L. Ed. 2d 280 (1981), citing Lincoln Mills, 353 U.S. 448, 1 L. Ed. 2d 972, 77 S. Ct. 912 (1957) on this point; and Clayton v. Automobile Workers, 451 U.S. 679, 101 S. Ct. 2088, 68 L. Ed. 2d 538 (1981), citing Republic Steel, 379 U.S. 650, 13 L. Ed. 2d 580, 85 S. Ct. 614 (1969) as well.

 Undisputed facts.

 Only two witnesses testified at trial: the plaintiff, Robert Moscone, and a former officer of WHYY, Jean F. Mason III. Testimony given by another former officer of WHYY, Robert Hall, and by Dudley Freeman who arranged to book the WHYY truck in February and April, 1979 for use by ESPN, was introduced by marking their depositions in evidence. Moscone and Mason were also examined on oral deposition before trial.

 Moscone had started in the TV field in 1955 with station WGBH in Boston. He went to WBZ, Boston, as news director and was there from 1964 into 1967 when he took a leave of absence to go to Reeves teletape as lighting director. He returned to WBZ in 1968 but after a brief period returned to Reeves as a line producer into 1971. The field was "quiet" at that time in the New York area where Reeves is, and at the suggestion of Robert Hall (whom he had known from Boston) went to WHYY in Philadelphia as production manager, and later became vice-president of production and sales.

 WHYY owned a mobile TV unit or "truck" (evidently a trade term, as used in "The Guys in the Truck" a comedy about sports and TV currently showing at an off-Broadway theater). The truck was essentially a portable TV studio with three cameras, a professional video-tape recorder (VTR), a slow motion disk (slo-mo) and suitable console control equipment, monitors and the like, all capable of producing live TV broadcasts or of taping material for later broadcast.

 The truck had been obtained for WHYY's own remote use at first, but when the station did not get funding to pay for a rather expensive relocation of its antenna, its own use of the truck (as well as its own studios) was sharply cut back and these facilities were put out for rental to others to raise funds.

 Moscone's function thus became one largely of arranging for commercial rental of the truck and the studios. Hall estimated that both sources generated some $200,000 gross a year; Moscone estimated that the truck generated some $100,000 gross a year. Neither figure is critical and no one attempted to verify from books and records.

 The truck could be sent out mostly along the Boston-Philadelphia-Baltimore-Washington corridor. It could not be used for some activities that needed more than 3 cameras (except as back-up), and travel time was a limiting factor. Most of the competition for rental was in New York.

 Moscone left WHYY in July-August, 1978, but had been aware for about a year before then that he would no longer be needed, so it was not a critical blow. Also, he had been commuting to Philadelphia from New York. Before leaving, he had talks with Hall, who suggested that Moscone look for commercial business for WHYY's truck, and he would get a commission on whatever he was able to send to WHYY.

 The oral arrangement was put in a letter from Hall to Moscone dated August 22, 1978 (though Moscone felt he had the letter when he left early that month). It calls for 10% of the final billing, payable when the commercial client pays, as a commission on commercial client leases that Moscone secured for WHYY. The letter said the arrangement would begin with a lease for the slo-mo to Steve Ullman for use at the Meadowlands. It closed by inviting questions if there were any. Moscone said he had none and asked none.

 Nothing much seems to have developed from this arrangement, at least until January, 1979. Moscone had relations of some kind with two or three companies in New York, including Reeves, that had trucks available but whether he booked any dates for them in this period does not clearly appear.

 Sometime in January, 1979, Moscone phoned Mason at WHYY. Mason was then director of operations (having been hired in September, 1978) and in charge of booking the truck. Moscone reported that Dudley Freeman had a number of dates to book the truck and would be phoning. Freeman did phone, dates were set for February and April, and the truck was sent out. This was accomplished even before the confirming letter of February 8, 1979 since the first date is two days before. The name of DBD Associates to which the letter (and later billing) went was furnished by Freeman.

 In his deposition, Freeman testified that DBD Associates was a corporation using the initials of his wife, his son and himself. He said he was in the truck rental business and had had a number of his own TV trucks and also obtained trucks from others.

 His arrangements with WHYY were to meet scheduled events to be broadcast or taped by ESPN for University of Connecticut, Fordham, and the like. Freeman's arrangement with ESPN was never clearly established either at deposition or trial, and no ESPN witness was called by either side. Thus the court cannot tell whether Freeman billed ESPN ...


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