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WEST MOUNTAIN POULTRY COMPANY v. MYRON GRESS (12/10/82)

filed: December 10, 1982.

WEST MOUNTAIN POULTRY COMPANY, APPELLANT,
v.
MYRON GRESS, RONALD GRESS, PETER GRESS, EDWARD J. GRESS, GRESS FOODS, INC. AND GRESS POULTRY, INC.



No. 2874 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Lackawanna County, Civil Action, No. 592 September Term 1977.

COUNSEL

Roger Mattes, Scranton, for appellant.

James J. Zaydon, Scraton, for Myron, Ronald, Peter and Edward Gress, appellees.

Clinton R. Weidner, Jr., Lemoyne, for Gress Foods and Gress Poultry, appellees.

Cavanaugh, Cirillo and Hoffman, JJ.

Author: Hoffman

[ 309 Pa. Super. Page 363]

Appellant contends that the lower court erroneously granted a non-suit in favor of appellees. Because questions of fact remained to be determined, we reverse and remand for a new trial.

Appellant, West Mountain Poultry Co., is owned in equal shares by Jerome Barth and Gress Farms, Inc. Gress Farms, Inc. owned by several members of the Gress family who, in varied alignments hold two other chicken processing plants with the Gress name, leases space to appellant for processing comminuted chicken meat.*fn1 Barth, an expert in comminuted chicken, and the Gress family members, joined to start appellant in the comminuted chicken business. A few years after appellant began operating, two of the Gress family businesses began comminuting chicken themselves.

[ 309 Pa. Super. Page 364]

On October 11, 1977, appellant filed a complaint alleging that individual Gress family members and two of the family businesses conspired to take trade secrets and customer lists from appellant, resulting in the destruction of appellant's business. The case went to trial before a jury on March 9, 1981 and continued until March 13 when, at the close of appellant's evidence, the lower court granted appellees' motions for a non-suit. Appellant petitioned the lower court to remove the compulsory non-suit, but on October 6, 1981 the court denied the motion. This appeal followed.

"A judgment of non-suit can be entered only in clear cases and plaintiff must be given the benefit of all evidence favorable to him, together with all reasonable inferences of fact arising therefrom, and any conflict with the evidence must be resolved in his favor." Engel v. Spino, 425 Pa. 254, 256, 228 A.2d 745, 746 (1961). When a compulsory non-suit is entered, "lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement." McAuliffe v. Constantine, 228 Pa. Superior Ct. 52, 54, 323 A.2d 158, 159 (1974). "When an issue of credibility is raised on motion for compulsory non-suit, it is not within the province of the trial judge to determine the believability of the plaintiff's testimony." Scott v. Purcell, 490 Pa. 109, 113, 415 A.2d 56, 58 (1980). "Unless there are no conflicting inferences to be drawn it is far better to hear the defense so that the appellate court may have the benefit of findings of fact and conclusions of law." Shechter v. Shechter, 366 Pa. 30, 32-33, 76 A.2d 753, 755 (1950). Finally, a non-suit may only be entered where "the facts and circumstances lead unerringly to but one conclusion." Paul v. Hess Bros., 226 Pa. Superior Ct. 92, 94-95, 312 A.2d 65, 66 (1973).

Appellant contends that the jury heard sufficient evidence to find the existence of trade secrets, a confidential list of customers and use by appellees of this information to the detriment of appellant. We find that the questions of whether trade secrets and a ...


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