In summary, there is no inconsistency between paragraph 5(d) dealing with termination by repurchase, and the several provisions in the subfranchise and the master franchise dealing with termination for cause. Therefore we cannot accept plaintiff's argument that an inconsistency made paragraph 5(d) ambiguous. In fact, we conclude that paragraph 5(d) clearly allowed Pepsi to repurchase the contract without Booth's permission. Therefore, we reluctantly conclude that it was error to submit the interpretation of these contracts to the jury, and to admit parole evidence to aid in this interpretation. We further conclude as a matter of law that Pepsi acted within its rights and did not breach the contract. Accordingly, we grant Judgment n.o.v. to Pepsi on the breach of contract claim.
II. Antitrust Claim.
It is clear that the breach of contract verdict against Pepsi tainted the antitrust verdict. As stated above, the court should have entered a judgment in favor of Pepsi as a matter of law, since Pepsi did nothing more than follow the carefully negotiated repurchase provision, which Booth chose to ignore. But by allowing the jury to conclude that the repurchase provision did not permit Pepsi to repurchase without Booth's permission, the jury was wrongly allowed to reason that Pepsi's "violation" of the contract was itself an act of unfair competition evidencing an anti-competitive intent. Furthermore, if, as a matter of law, there was a right to repurchase, then Pepsi's and Hires' refusal to sell Hires' concentrate to Booth after January 1, 1969 could not evidence a concerted refusal to sell in violation of Sherman I, for if Booth was no longer a subfranchisee then it obviously had no right to purchase Hires' concentrate and Pepsi had no right to sell it to them.
For these reasons, we can reject plaintiff's contentions that the termination of the subfranchise agreement, and that the concerted refusal to deal were acts of unfair competition. We turn now to the other alleged acts of unfair competition.
The next two acts cited by plaintiff as evidence of Pepsi's alleged violation of the antitrust laws are the planting of an employee, and employee theft. The Vice-President of Pepsi recommended that Booth hire Thomas Pringle, which Booth did, for a chain store merchandising position. After ten weeks at Booth, Pringle was rehired by Canada Dry of Delaware Valley, the other defendant in this case. Similarly, there was evidence that Marvin Cohn, a key employee of Booth, was "stolen" to work at Canada Dry. However, since both employees were hired by Canada Dry, which the jury absolved of all liability in this case, we can reject plaintiff's contentions that these were found to be acts of unfair competition by the jury.
Booth next argues that resale price maintenance was used to force it to sell at low prices, much to its economic harm. However, this claim was not against Pepsi, but against Beverages, Inc., with whom it settled. Similarly, Booth argues that it was the victim of discriminatory treatment in the policies governing the sale of competitive products. It claims that it was not allowed to sell its own brand of Root Beer in competition with Hires, whereas Canada Dry was. It is clear that the national companies, Beverages, Inc., and Crush International, were policing the sales of Booth, while Beverages and Pepsi were policing the sales of Canada Dry. However, the only common actor in the two policing actions above is Beverages, with whom Booth settled. The only company to benefit from the alleged discrimination was Canada Dry, which the jury held not liable. Furthermore, there was clear evidence that the total lost profits from Booth's inability to sell its own Root Beer was far exceeded by the total profits it made from its right to sell Hires (N.T. 4/63-66).
Booth next claims Pepsi forced it to engage in considerable promotional activity to promote Hires, and then took away the franchise and gave it to Canada Dry. The argument is that Booth paid the cost and Canada Dry reaped the profits of this promotional activity. However, the evidence indicated that Booth made a substantial profit as a result of the promotion of Hires (N.T. 2/105-106, 4/45-60, 5/5, 6/15). Equally insubstantial is Booth's claim that Pepsi is liable for the alleged use of interlocking directorates to demand payment of a $90,000.00 debt. Zuckerman-Honickman was Booth's chief supplier of glass, and ceased dealing with Booth on credit, demanding payment of the $90,000.00 worth of accounts. Despite the claims of interlocking directorates, Zuckerman-Honickman is a separate corporation which was not a party to the trial, and it is distinct from Pepsi. Furthermore, the evidence indicated that the accounts receivable grew from $20,000.00 to $90,000.00 in the preceding nine months (N.T.16/58), and that this was not Zuckerman-Honickman's first attempt to collect it, (Exhibit D-40).
Booth's final argument is that Honickman, sued by Booth in New Jersey, took an affidavit that Booth's unsatisfactory sales promotion necessitated termination of the subfranchise. However, such an affidavit occurred after the termination, and hence cannot be an anti-competitive act with respect to Booth. At most it could merely be defamatory. However, statements made in the course of a judicial proceeding are absolutely privileged and hence cannot even give rise to an action for defamation. Greenberg v. Aetna Ins. Co., 427 Pa. 511, 514, 235 A.2d 576 (1967).
For these reasons, it is clear that there was no evidence from which the jury could have found that Pepsi was liable to Booth on the antitrust claim. Accordingly, we grant Judgment N.O.V. to Pepsi on the antitrust claim.
In Part I we granted Judgment N.O.V. on the breach of contract claim, and in Part II we granted Judgment N.O.V. on the antitrust claim. Thus we find that Pepsi should not have been held liable to Booth at all. Accordingly, we need not resolve the issues concerning the measure of damages.
AND NOW, this 28th day of April, 1975, for the reasons stated in the foregoing OPINION, it is hereby ORDERED that Judgment N.O.V. be entered in favor of Pepsi and against Booth.
JOHN MORGAN DAVIS, S.J.
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