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MCNULTY v. BORDEN

June 21, 1982

John McNULTY
v.
BORDEN, INC.



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

Plaintiff has moved for judgment notwithstanding the verdict or in the alternative for a new trial in this action tried before a jury on January 19-23 and 26-28, 1981. Plaintiff contends, in essence, that the Court's interrogatories to the jury and the jury instructions were confusing and misleading, with the result that the jury's answer to the second interrogatory was other than the one intended. Plaintiff also questions the necessity of the second interrogatory. Plaintiff further maintains that the Court erroneously granted a Rule 50 motion by directing a verdict on one count of the complaint. For the reasons set forth below, plaintiff's motions will be denied.

 Plaintiff John J. McNulty was a sales manager employed by defendant Borden, Inc. McNulty alleged that his employment was terminated by Borden solely because he refused to offer deals to Acme, Inc., a supermarket chain, that were not being offered to Acme's competitors. McNulty alleged that to have offered such deals would have violated the Robinson-Patman Act, 15 U.S.C. § 13. Plaintiff filed suit in this Court, claiming a wrongful termination under Pennsylvania law. In addition, he made a claim under federal law for treble damages against Borden for its alleged violation of the Robinson-Patman Act.

 At the close of evidence, a verdict was directed for the defendant on the Robinson-Patman Act claim. This Court concluded that the plaintiff had failed to prove that he was a customer or a competitor of the defendant, and therefore he had not proved a cause of action under the Robinson-Patman Act. (Record 7.3). See Klein v. Lionel Corp., 237 F.2d 13 (3d Cir. 1956). As this Court stated when it made its ruling: "the evidence presented by the plaintiff would not be sufficient for a jury to reasonably conclude that there had been a violation of the Robinson-Patman Act." (Record 7.4).

 On January 28, the jury returned a verdict in favor of Borden on plaintiff's state claim. Under Pennsylvania law, in order to state a cause of action for wrongful termination, a plaintiff must prove that he was asked to perform an act contrary to a clear mandate of public policy and that he was terminated solely for his refusal to perform such an action. See Perks v. Firestone Tire and Rubber Co., 611 F.2d 1363 (3d Cir. 1979); Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). The jury found, in answer to Interrogatory No. 1, that McNulty had been terminated solely for refusing to offer deals not being offered to Acme's competitors. The jury concluded, however, in response to Interrogatory No. 2, that Borden's actions in offering deals to Acme did not violate a clear mandate of public policy since there had been no violation of the Robinson-Patman Act. Accordingly, judgment was entered for the defendant.

 The short answer to plaintiff's motion for a judgment n.o.v. is that, having failed to request a directed verdict at the close of evidence, plaintiff cannot now obtain a judgment n.o.v. See Fed.Rule of Civ.Pro. 50(b). A motion for a directed verdict is a prerequisite to a motion for a judgment notwithstanding the verdict. Lowenstein v. Pepsi-Cola Bottling Co. of Pennsauken, 536 F.2d 9, 10 (3d Cir.), cert. denied, 429 U.S. 966, 97 S. Ct. 396, 50 L. Ed. 2d 334 (1976); Mallick v. International Broth. of Elec. Workers, 644 F.2d 228, 233 (3d Cir. 1981). "Unless a court has been alerted to deficiencies in proof by a motion for a directed verdict, a request that the court enter a judgment contrary to that of the jury is tantamount to asking the court to re-examine the facts as found by the jury. Such a re-examination would abridge the Seventh Amendment." Mallick, supra at 233. Accordingly, the petition for a judgment n.o.v. must be denied.

 In considering plaintiff's motion for a new trial, it is our duty to be certain that there would be no miscarriage of justice if it were denied. Kerns v. Consolidated Rail Corp., 90 F.R.D. 134 (E.D.Pa.1981); Larsen v. International Business Mach. Corp., 87 F.R.D. 602 (E.D.Pa.1980); Legette v. National R.R. Passenger Corp., 478 F. Supp. 1069 (E.D.Pa.1979). However, "the jury's verdict may be set aside only if manifest injustice will result if it were allowed to stand." Kerns, supra. Plaintiff contends that letting the verdict stand would amount to a miscarriage of justice, since the jury believed that it was finding for the plaintiff, not the defendant, and would have answered the second interrogatory differently had it known the effect of its answer on the ultimate result. In support of this contention, plaintiff has submitted an affidavit from one of the jurors. Plaintiff maintains that the jury's "mistake" was the result of the confusing nature of the interrogatory and the Court's reading of the Robinson-Patman Act to the jury. Finally, plaintiff maintains that the Court erred in asking the second interrogatory at all, since the first interrogatory alone was sufficient to impose liability on the defendant.

 Plaintiff's reliance on a juror's affidavit to the effect that the jury reached the "wrong" verdict is misplaced, since the Federal Rules of Evidence prohibit a jury from impeaching its own verdict, except when "extraneous prejudicial information was improperly brought to the jury's attention or ... (when) any outside influence was improperly brought to bear upon the jury." F.R.E. 606(b). See also McDonald v. Pless, 238 U.S. 264, 35 S. Ct. 783, 785, 59 L. Ed. 1300 (1915). The situation presented here does not fall within this limited exception. As plaintiff recognizes, Rule 606(b) does not bar a juror's testimony that, through inadvertence or mistake, the verdict announced by the jury was not the one on which agreement had been reached. Young v. United States, 163 F.2d 187, 189 (10th Cir.), cert. denied, 332 U.S. 770, 68 S. Ct. 83, 92 L. Ed. 355 (1947); Weinstein's Evidence 606-32. Here, however, according to the affidavit of the juror, "it was his view shared by other jurors that the Plaintiff had not proven all the technical aspects of the Act, particularly as to injury to competition and restraint of trade..." Therefore, the jury, in response to the interrogatory requesting it to decide whether the defendant had violated the Robinson-Patman Act, agreed that the answer was "No", and this was the answer given in Court. Thus, whatever "mistake" the jury might have made is not one it can now correct by its testimony. The policies of finality and freedom of deliberation must prevail. See Notes of Advisory Committee on Proposed Rule 606, Subdivision (b).

 As to the allegations that this Court's interrogatories and instructions were misleading, we fail to find them so. After the jury had been deliberating for some time, it asked the Court for additional instructions regarding Interrogatory No. 2; the Court repeated, in essence, its original instructions concerning this Interrogatory and concluded with this statement:

 
Now, to wrap it up, I want to say to you that if you find that Borden wanted the Plaintiff, Mr. McNulty, to violate the law, and that his refusal is the sole reason he was terminated; and if, in addition to that, the Plaintiff has proved by a preponderance of the evidence that this is the case, then in that situation Borden would be liable.
 
Now, if you find that the Plaintiff has proved by a preponderance of the evidence that the Defendant violated a clear mandate of public policy by terminating the Plaintiff for the sole reason that he refused to offer deals to Acme, which violated the Robinson-Patman Act, then you would answer Interrogatory No. 2 "Yes".
 
On the other hand, if you find that the Plaintiff has not proved by a preponderance of the evidence that the Defendant violated a clear mandate of public policy by terminating the Plaintiff's employment for the sole reason that he refused to offer deals to Acme which were not being offered to Acme competitors, and which violated the Robinson-Patman Act, then your answer to Interrogatory No. 2 should be "No".

 The Court's charge as to Interrogatory No. 2 was clear and unambiguous. That Interrogatory No. 2 clearly conveyed to the jury what it was required to determine is made evident by the affidavit submitted by the juror. The affiant stated that the jury was not convinced that the Act had been violated and therefore answered "No". The Interrogatory, therefore, seems to have been understood by that juror. Furthermore, the reading of the ...


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