Consent was a jury question, one which could be resolved through the application of their own experience and common sense. Common sense and general knowledge of human nature were sufficient to carry Plaintiff's day, and the verdict should not now be disturbed on that basis.
2. Efficient Breach
The doctrine of efficient breach says that the law should not deter an otherwise socially beneficial, or "efficient," breach of contract by forcing the promisor to compensate the promisee for more than the promisee's actual losses. See, e.g., Patton v. Mid-Continent Systems, Inc., 841 F.2d 742, 750 (7th Cir. 1988). See also Pressman, 679 A.2d at 447-48. Defendant, under the rubric of the efficient breach doctrine, reiterates that there can be no criminality here because a breach of contract is not an illegal act. That is indeed the general rule. See, e.g., Windsor Sec., Inc. v. Hartford Life Ins. Co., 986 F.2d 655, 664 (3d Cir. 1993) (finding that a breach of contract, in itself, is not criminal conduct). There are, however, breaches of contract, and acts accompanying breaches of contract, which do constitute illegal acts. Antitrust cases provide one example. Another is the case at bar, where contractual undertakings are intertwined with criminal. This general contractual doctrine does not here bar recovery.
3. Liability Evidence
BFI also maintains that the jury's verdict on liability ran contrary to the weight of the evidence. As is so often seen in employment cases, BFI presented a good deal of evidence to the effect that Mr. Paolella was a worthy candidate for being sacked -- for reasons having nothing to do with his blowing of whistles. BFI presented evidence that Plaintiff was a whiner with a bad attitude, that he did not get along well with others, that he was always grumbling about getting more and more commissions, for example. Mr. Paolella, on the other hand, presented evidence of BFI's criminal conduct and testified that he called BFI on its illegalities. Further, he produced a letter sent to them just three weeks before his termination, reiterating his concerns about BFI's illegal activity. Although the letter discussed far more than illegal activity, focusing as it did on Mr. Paolella's concern that his commissions were not sufficiently hefty, the entire letter was before the jury, was fully argued to the jury, and the jury reached their decision. For this court to intrude upon their credibility findings at this juncture, when those findings are supported by evidence, would be to trespass into their exclusive domain.
4. Damage Evidence
The jury returned a verdict of $ 732,000. They reached this verdict after hearing testimony that Mr. Paolella had earned approximately $ 50,000 annually at BFI, had earned only $ 21,000 since his termination, and that if he had worked at BFI until age sixty-five, he would have earned income for another fourteen years. In summation, Plaintiff's counsel argued for an award of $ 109,000 in back pay, $ 490,000 in front pay, and an unspecified sum for cost-of-living increases, medical benefits, and pension benefits.
I do agree, as discussed above, that the verdict is too high in light of Mr. Paolella's participation in what this jury found to be a nefarious scheme. Thus, I have retrenched the award to $ 600,000. However, I cannot say that the record reveals evidence of passion or prejudice. See Dunn v. HOVIC, 28 V.I. 467, 1 F.3d 1371, 1383 (3d Cir.) (en banc) (finding that size of verdict alone, if supported by evidence, cannot show prejudice and passion), cert. denied, 510 U.S. 1031, 114 S. Ct. 650, 126 L. Ed. 2d 608 (1993). Under the circumstances of this case, I cannot say that the verdict, as abridged, is anything other than a just result, well within the sound discretion of the parties' peers. The amount of damages neither justifies a new trial, nor remittitur beyond that already discussed.
C. Motion to Correct Clerical Omission
BFI wishes this court to include in the civil judgment the jury's specific findings of front and back pay. Mr. Paolella opposes this motion, arguing that the court should not have given the jury an additional interrogatory after it had returned with its verdict. He has cited no law to support his position. In fact, the request for additional interrogatories does have precedent. See Bolden v. Southeastern Pa. Transp. Auth., 820 F. Supp. 949, 952 (E.D. Pa. 1993), aff'd, 21 F.3d 29 (3d Cir. 1994) (permitting submission of second set of interrogatories to jury after jury made initial damages finding). Thus, I shall grant BFI's motion to include in the judgment the jury's front pay and back pay findings.
In sum, I shall deny BFI's Renewed Motion for Judgment as a Matter of Law and Motion for a New Trial. I condition the denial of a new trial on the plaintiff's agreement to take a remittitur. I shall deny as moot Plaintiff's conditional Motion for a New Trial on damages.
An order follows.
AND NOW, this 3rd day of July, 1997, for the reasons described in the accompanying memorandum:
1. The defendant's Renewed Motion for Judgment as a Matter of Law and alternative Motion for a New Trial are DENIED. I condition the denial of the new trial motion on the plaintiff's agreement to accept a remittitur of damages to $ 600,000.
2. The defendant's Motion to Correct a Clerical Omission in Civil Judgment is GRANTED. The second paragraph of the Civil Judgment of October 3, 1996, is AMENDED to read:
"IT IS ORDERED that judgment be and the same is hereby entered in favor of the plaintiff, Michael Paolella, and against the defendant, Browning-Ferris, Inc., in the amount of $ 732,000, consisting of $ 135,000 in back pay and $ 597,000 in front pay."
3. The plaintiff's Motion for a New Trial is DENIED as moot.
BY THE COURT:
Robert S. Gawthrop, III, J.