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April 3, 1970

Lewis BARLOW, Individually and Lewis Barlow on behalf of Lewis Barlow and Manuel Steinhart, a Partnership
BRUNSWICK CORPORATION and William J. Mosconi a/k/a Willie Mosconi

Joseph S. Lord, III, District Judge.

The opinion of the court was delivered by: LORD, III

Plaintiff sued William J. Mosconi for damages allegedly resulting from his breach of an alleged oral contract with plaintiffs to produce a television series. Plaintiffs also sought compensatory and punitive damages from Brunswick Corporation ("Brunswick") for its alleged malicious interference with the contract. Jurisdiction is based upon diversity of citizenship.

 Stated generally, the facts adduced at trial showed that on or about Labor Day, 1962, plaintiff Lewis Barlow, who was employed part-time as a producer for the Philadelphia NBC television station, and Manuel Steinhart met in Atlantic City to discuss Steinhart's idea for a television show based on billiards. In a format drafted on September 5, 1962, they dubbed their program "Championship Billiards." They contemplated filming matches between players of championship caliber in which the winner would receive proportionately more money than the loser. The matches would be described by a well-known personality, "like Willie Mosconi," who would be the "technical expert and with the host [would] provide a running description of the game." This format envisaged, inter alia, mounting a television camera directly over the billards table. Barlow and Steinhart formed a partnership called Sammet-Willow Productions, and later agreed to give Robert Goldy a 15 per cent interest in the partnership as compensation for his legal services in connection with their venture. *fn1"

 Steinhart and Goldy met Mosconi for the first time at a luncheon meeting at Lew Tendler's Restaurant in Philadelphia, Pa., on October 1, 1962. Mosconi expressed interest in the venture, and referred Goldy to his agent in New York City, a Mr. Alpert, now deceased. Subsequently, on October 21 and 22, a "pilot" show was video taped pursuant to an oral agreement that Mosconi would obtain two billiards players of championship caliber and select a "billiards parlor" for the taping; Mosconi provided the commentary for the match and was paid a $500 fee. The necessary equipment was rented from NBC. Thereafter, Goldy corresponded with a Mr. Wall, Mr. Alpert's attorney in New York, concerning the specifics of a contract covering the proposed series. These negotiations never reached fruition and no written contract was ever drafted. Plaintiffs argued that an oral agreement was reached concerning all the essential terms of a contract for a television series, and that Brunswick interfered with that contract by contracting with a professional television producer, Peter DeMet, for a complete 13-week television series which employed Mosconi. This series, they argued, rendered impossible Mosconi's performance of his oral contract with the partnership. Plaintiffs specifically conceded at the trial's outset that they were not claiming that Brunswick "pirated" their idea for "Championship Billiards."

 After plaintiffs rested their case, both defendants moved for a directed verdict pursuant to F.R. Civ. P. 50(a); we granted Brunswick's motion but denied Mosconi's. The jury returned a verdict of $7,500 for plaintiffs against Mosconi. Presently before us are several motions: plaintiffs have moved for a new trial as to Mosconi on damages only because of the asserted inadequacy of the verdict; they also seek a new trial as to Brunswick, contending that our decision under Rule 50(a) was erroneous. Mosconi has moved for judgment notwithstanding the verdict pursuant to F.R. Civ. P. 50(b).


 Plaintiffs' claim of an inadequate verdict is without merit. The partnership spent $4,214.85 to produce a "pilot" program to use as a sales device for the proposed television series. In addition, Messrs. Barlow and Goldy testified that they performed services for the venture for which they were not compensated. The jury's verdict of $7,500 was an eminently fair award for these items. Whether "Championship Billiards" would have been profitable was an issue on which there was strongly conflicting testimony. If plaintiffs' expert, Mr. "Bosh" Pritchard, had been believed, a more substantial verdict for lost profits would have been appropriate. But as Mosconi correctly points out, Mr. Pritchard's testimony had a weak factual basis, and was strongly disputed by the defendant's testimony that the Brunswick-sponsored television series of thirteen completed programs, professionally produced at a cost of about $75,000, was sold to only nine local stations out of 200 to 300 stations solicited from January 1964 through the last half of 1965. Accepting this testimony as a guide to lost profits, as a reasonable juror could have done, it is reasonable to conclude that plaintiffs' venture would have realized no profits at all. Plaintiffs' motion for a new trial on the issue of damages will be denied.


 Plaintiffs' contention that we should set aside our directed verdict in favor of Brunswick and grant a new trial as to that defendant appears to be three-pronged. First they argue that Brunswick had the affirmative burden of proving justification or privilege for interfering with their contract with Mosconi, and that it was therefore improper for us to have directed a verdict under Rule 50(a) because of plaintiffs' failure to prove "malice" or lack of privilege. To support this contention plaintiffs quote extensively from legal treatises and secondary source material which purport to summarize Pennsylvania law treating this aspect of the tort. Brunswick disputes plaintiffs' reading of the material and relies on the Restatement of Torts, § 766, for the proposition that privilege is not an affirmative defense. That section provides:

"Except as stated in Section 698 [alienation of affection], one who, without a privilege to do so, induces or otherwise purposely causes a third person not to
(a) perform a contract with another, or
(b) enter into or continue a business relation with another is liable to the other for the arm caused thereby." (Emphasis added.)

 The short answer to plaintiffs' argument is that the law of Pennsylvania, which plaintiffs assume is applicable, *fn2" casts the burden of proving lack of privilege on the plaintiff. In affirming a trial court's entry of judgment n.o.v., the Pennsylvania Supreme Court made the following observations concerning section 766 of the Restatement:

"The Special Note to comment m. in § 766 points out: 'There are frequent expressions in judicial opinions that "malice" is requisite for liability in the cases treated in this Section. But the context and course of decision make it clear that what is meant is not malice in the sense of ill will but merely purposeful interference without justification.' Our cases are in accord: Klauder v. Cregar, 327 Pa. 1, 192 A. 667, * * * Dora v. Dora, 392 Pa. 433, 141 A.2d 587, * * *. In Birl [Birl v. Philadelphia Elec. Co., 402 Pa. (1960)], we further stated (p. 301): '* * * the actor must act (1) ...

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