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filed: October 10, 1980.


Nos. 2841 and 3016 October Term, 1978, Appeal from the Order in the Court of Common Pleas of Bucks County, No. 76-5324-08-5.


Benjamin E. Zuckerman, Norristown, for Victor S. Liss and C. P. C. Associates, Inc., appellants at No. 2841 and appellees at No. 3016.

Anthony R. Thompson, Allentown, for Computer Print Systems for appellee at Nos. 2841 and 3016.

Kenneth R. Williams, Doylestown, for David Lewis, appellee.

Price, Gates and Dowling, JJ.*fn*

Author: Price

[ 281 Pa. Super. Page 244]

This appeal is from an action in equity by appellee for conspiracy to usurp a corporate opportunity and for conversion of computer programs. The chancellor denied appellee's request for a preliminary injunction restraining appellants from utilizing the computer programs, and on the trial on the merits, he found no support for the conspiracy charge but entered judgment for $18,000, representing the value of the computer programs appropriated by appellants. Appellants now appeal alleging numerous instances of error. Finding no merit to these contentions, we affirm the order in the trial court.

Appellants' first contention on appeal is that there was a variance between the allegata and probata which mandates entry of judgment non obstante veredicto. The evidence presented at trial established that appellee is a data processing service company specializing in the field of direct mail advertising and the development of computer programs to accomplish the direct mail requirements of its clients. Appellant David Lewis (Lewis) was an officer of appellee serving as administrative manager and vice-president from May of 1973 until January 1975 and thereafter as its president until May 7, 1976. Appellant C. P. C. Associates, Inc. (CPC) was a customer of appellee from 1973 until May 1976,

[ 281 Pa. Super. Page 245]

    and appellant Victor Liss (Liss) was CPC's president and one of its principal shareholders. Another individual, Kurt Schneider (Schneider), is the sole shareholder of appellee and also figured prominently in the proof at trial.

From 1973 until 1976, Lewis was extensively involved in the day to day operations of appellee and maintained exclusive control over the management of the CPC account. This control entailed the processing of the monthly direct mailing requirements of CPC and was accomplished by specialized computer programs.*fn1 In January 1975, Lewis requested permission to make copies of the computer programs used to process the CPC account and to deliver them to CPC as a precaution against fire. Schneider refused this request, stating that it was against company policy to give copies of programs developed by appellee to its customers, which policy served as an inducement to prevent the customers from taking their account to another computer processor.

In or about June of 1975, another company in which Schneider owned 100% of the stock encountered financial difficulties and ceased activity. As a result, Liss became fearful that a similar fate would befall appellee, thus forcing

[ 281 Pa. Super. Page 246]

    a disruption of CPC's monthly mailing operation. Consequently, Liss informed Lewis that unless CPC could acquire "backup" copies of the computer programs used to process its work, it would take its account to another company. In response, Lewis procured taped copies of the programs along with machine code instructions without informing Schneider and turned them over to Liss in June of 1975. At that time, Liss did not know that it was contrary to appellee's corporate policy for Lewis to supply these items. Liss obtained the items but did not use them and continued to maintain the CPC account with appellee.

In January of 1976, Lewis expressed dissatisfaction with his position with appellee and commenced discussion with Schneider regarding a termination of his employment. In March of that year, he submitted to Schneider his resignation but remained with CPC until May 7, 1976. At or about the beginning of April 1976, Liss discovered for the first time that Lewis was terminating his relationship with appellee. Somewhat concerned, he sought to induce Schneider to retain Lewis by threatening to take his account to a competing computer processor if Lewis was not available to manage the CPC account. Apparently, Liss was concerned that the CPC account would not receive the individualized attention that had been the hallmark during Lewis' tenure with appellee. When these efforts failed, and unbeknownst to Schneider, Liss contacted Lewis on April 20, 1976, and agreed to hire Lewis to process the CPC account as an independent consultant. Lewis agreed, and in preparation for this task, he purchased several blank computer tapes. On April 23, 1976, he utilized the facilities of appellee to run a test of the blank tapes to determine that they were in good condition. For some unexplained reason, however, the log that records the use of the computer at appellee's facility was torn so as not to reflect this use by Lewis on April 23, 1976.

On May 1, 1976, Schneider learned for the first time that Lewis was to take over the processing of the CPC account. By correspondence dated May 4 and May 14, 1976, Liss

[ 281 Pa. Super. Page 247]

    instructed Schneider to relinquish to Lewis the programs and all other material used to process the CPC account. Schneider did not respond to these letters, and on May 17, 1976, a "final settlement" meeting was held, attended by Lewis, Liss and Schneider. At that meeting, Schneider refused to deliver the material and for the first time informed Liss that the programs were the exclusive property of appellee and did not belong to CPC. At no time did either Lewis or Liss reveal that CPC still retained the copies of the programs obtained in June of 1975. After the meeting, Lewis ...

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