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March 31, 1975


Knox, District Judge.

The opinion of the court was delivered by: KNOX

KNOX, District Judge.

 Plaintiff Gordon Baughman, an over-the-road truck driver, originally brought this civil antitrust action against his former employer Cooper-Jarrett, Inc. and four other trucking companies alleging that the defendants engaged in a conspiracy in restraint of trade to blacklist him from obtaining work in the trucking industry. The complaint charged that the defendants violated Sections 1 and 2 of the Sherman Act, 15 U.S.C. § 1 et seq. and included a pendent state claim for tortious interference with prospective contractual relationships under Restatement, Torts § 766.

 During the first trial of this action commencing on January 9, 1974, the court ruled that no cause of action had been made out under Section 2 of the Sherman Act and also determined that the pendent state claim, if it existed, could only be maintained against defendant Cooper-Jarrett, Inc. At the conclusion of the evidence, the court granted a directed verdict in favor of defendant Braun's Baking Company a/k/a Continental Baking Company, Inc. on the grounds that there was no evidence that this corporation engaged in interstate commerce and there was insufficient evidence to show that this defendant participated in the alleged conspiracy to blacklist the plaintiff. As for the other defendants, the jury rendered a special verdict in which it found damages against Cooper-Jarrett, Inc., Matlack, Inc., and Wilson Freight Company for violation of Section 1 of the Sherman Act while absolving National Freight Lines of any liability. The jury further found damages against Cooper-Jarrett, Inc. for wrongfully inducing other trucking companies to refuse to hire the plaintiff as alleged in the pendent state claim.

 Following entry of judgment on the verdict, defendants Cooper-Jarrett, Matlack, and Wilson filed Motions for Judgment NOV and for a New Trial. In an Opinion and Order of August 20, 1974, the court denied the Motions for Judgment NOV, but granted the Motions for a New Trial on the ground that the closing address of plaintiff's counsel to the jury was replete with prejudicial remarks.

 In the second trial commencing on October 9, 1974, the plaintiff proceeded against defendants Cooper-Jarrett, Inc., Matlack, Inc., and Wilson Freight Company. After the jury was sworn, but prior to plaintiff's opening statement, the plaintiff entered into a settlement agreement with Cooper-Jarrett and Matlack whereby Cooper-Jarrett agreed to pay $37,500 and Matlack agreed to pay $22,500 or a total of $60,000 to the plaintiff in return for a joint tortfeasor release. Although the plaintiff withdrew with prejudice the pendent state claim, the agreement provided that the payment by Cooper-Jarrett was limited to settlement of the antitrust claim. The plaintiff expressly reserved all of his rights against Wilson Freight Company, the remaining defendant.

 At the close of the evidence in the second trial, the court instructed the jury that if Wilson Freight Company were found to have joined a conspiracy to blacklist the plaintiff in violation of Section 1 of the Sherman Act, damages could be determined only from the date when Wilson joined the conspiracy. This instruction was given at the request of the defendant and agreed to by the plaintiff. The jury returned a verdict for the plaintiff in the amount of $25,000 actual damages and on October 21, 1974, the court ordered that judgment be entered against Wilson for $75,000 after trebling under 15 U.S.C. § 15. The court further ordered that the plaintiff was entitled to counsel fees, expenses, and costs to be determined at a later hearing.

 Defendant Wilson Freight Company now presents this court with a Motion for Judgment NOV pursuant to Rule 50(b) of the Federal Rules of Civil Procedure asserting that there was no competent admissible evidence to show that Wilson engaged in a conspiracy to backlist the plaintiff. Wilson also has filed a Motion for Reduction of Judgment claiming that the judgment should be reduced to $15,000 because Wilson is entitled to a credit for the $60,000 in settlement payments by its co-conspirators, Cooper-Jarrett, Inc. and Matlack, Inc. to be deducted from the $75,000.

 A. Motion for Judgment NOV

 Wilson Freight Company presents a Motion for Judgment NOV claiming that the court erred in admitting certain hearsay declarations and, therefore, there was no competent evidence showing that Wilson engaged in a conspiracy to blacklist the plaintiff. The statements in issue, related by plaintiff's witnesses during the trial, allegedly were made by Clarence Frankel of Cooper-Jarrett, Inc., Claire Umberger of Wilson and Randy Clark of Matlack, Inc. In considering this motion, the court must view the evidence in the light most favorable to the party who won the jury verdict -- in this case the plaintiff. 5A J. Moore, Federal Practice P 50.07 at 2356-57. For the reasons stated below, the defendant's motion will be denied.

 The plaintiff's contention in this case was that after firing the plaintiff, Cooper-Jarrett, Inc. enlisted other trucking companies in a common effort to prevent the man from obtaining further employment. The evidence produced at trial showed that the plaintiff was employed as an over-the-road truck driver by Cooper-Jarrett until he was fired on October 23, 1970. The plaintiff testified that when he was fired, Clarence Frankel, a Vice-President of Cooper-Jarrett, stated: "He [plaintiff] will not drive any of Cooper-Jarrett's trucks ever again nor will he drive for any other freight company." (Trans. No. 1 at page 17).

 Wilson argues that this statement constitutes inadmissible hearsay which does not fall within the co-conspirator exception because it was made before any conspiracy could have begun. While we agree that there may not have been two or more conspirators involved at that point in time, Frankel's statement falls within another exception to the hearsay rule. A person's declaration of intent to perform an act is admissible as tending to show that the act was in fact carried out as planned. See Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 295-96, 12 S. Ct. 909, 36 L. Ed. 706, 710 (1892); Blackburn v. Aetna Freight Lines, Inc., 368 F.2d 345, 348 (3d Cir. 1966) (dictum); United States v. Annunziato, 293 F.2d 373, 377 (2d Cir.), cert. denied, 368 U.S. 919, 82 S. Ct. 240, 7 L. Ed. 2d 134 (1961); Nuttall v. Reading Co., 235 F.2d 546, 551 (3d Cir. 1956); Commonwealth v. Santos, 275 Pa. 515, 119 A. 596, 599 (1923). Accordingly, we find that Frankel's statement was relevant and admissible to prove that Cooper-Jarrett thereafter contacted Wilson and other trucking companies in an effort to blacklist the plaintiff.

 The defendant's second objection is to certain alleged statements by Claire Umberger who is the Relay Supervisor or local manager for Wilson Freight Company at the company's terminal in New Stanton, Pennsylvania. The evidence indicated that the plaintiff went to Wilson's New Stanton terminal and filed an application for employment on August 24, 1971. The plaintiff testified that when he returned about seven to ten days later to check on his application, Umberger stated: ". . . the word was out from Cooper-Jarrett that I [plaintiff] was blacklisted, that he [Umberger] could not hire me." (Trans. No. 1 at p. 35). This testimony was corroborated by Ross Fait who accompanied the plaintiff to the Wilson terminal. *fn1" The jury may well have inferred from this statement that Cooper-Jarrett had secured the cooperation of Wilson in its efforts to blacklist the plaintiff.

 The defendant argues that this declaration constitutes inadmissible hearsay because Umberger did not have actual authority to make a statement admissible against Wilson on the subject of a conspiracy. Wilson interprets the law too narrowly if it means to imply that the plaintiff must show that Umberger was expressly authorized to inform the plaintiff that he was the target of an illegal conspiracy. Conspiracies are secretive by their very nature, and such a requirement would unduly burden their innocent victims from obtaining relief. Considering all the facts presented, we find ...

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