Franklin Music Co. v. American Broadcasting Companies

SLOVITER, Circuit Judge,

concurring in part.

I concur with Judge Gibbons in all portions of his opinion except for his affirmance of that part of the judgment sustaining the award of damages for the civil conspiracy. (Section II. B. of the majority opinion). I write separately as to the directed verdict on the Sherman Act claim *547 and judgment notwithstanding the verdict on interference with FMC’s employees (Sections III. C. and III. E. of the majority opinion).

I.

Civil Conspiracy Under Pennsylvania Law

I agree with Chief Judge Seitz that the trial court’s decision sustaining the jury’s verdict of $1,311,000 on the civil conspiracy claim must be reversed but my decision is based on different reasons. The trial court held that the jury could have found “defendants to have conspired and committed specific acts for the purposes of injuring plaintiff so that they could acquire plaintiff at a depressed price,” and that this finding adequately supported a verdict for civil conspiracy under Pennsylvania law. 1

The evidence in support of a finding that the ABC companies possessed the requisite intent to injure plaintiff is considerably weaker than the evidence which supports a finding that Franklin possessed such an intent. There was, as the majority opinion notes, evidence of “longstanding mutual antagonism” between Franklin and Rosen. No such evidence was presented as to the' ABC companies. In Pennsylvania, it is a prerequisite to sustaining a verdict for civil conspiracy that there have been a commonality of purpose among the various conspirators.

A “conspiracy to defraud” on the part of two or more persons means a common purpose supported by a concerted action to defraud, that each has the intent to do it, and that it is common to each of them, and that each understands that the other has that purpose. Ballantine v. Cummings, 220 Pa. 621, 630 , 70 A. 546, 549 (1908).

To find the requisite intent, Judge Gibbons marshalls the following facts to support his conclusion that a jury could have inferred that ABC conspired to injure FMC in order to acquire its business at a depressed price: ABC was interested in entering the retail music business; it discussed possible purchase of FMC with Rosen; it failed to correct Franklin’s false statements to the press; and it participated in other tortious activity directed at FMC, such as the breach of fiduciary duty and the interference with FMC employees. Were I free to substitute my judgment for that of the jury, it is unlikely that I would have reached a similar result. However, under the clear law of this circuit, we are not free to do so. Therefore, since I also believe the above scenario contained at least the minimum quantum of evidence necessary to create a jury question, it follows that the jury’s findings must be accepted. Accordingly, if I did not believe the interrogatory on which the civil conspiracy verdict was founded was inherently defective, I would be required to concur in Judge Gibbons’ decision affirming the trial court on this count.

I do not affirm the judgment on the conspiracy count because I believe that the conspiracy interrogatory failed to differentiate between the two distinct bases for finding liability for civil conspiracy under Pennsylvania law. As framed, the interrogatory could have caused the jury to confuse its verdict on the conspiracy with its verdict on the substantive torts which were the subject of other interrogatories and are the subject of other recovery in this action. Therefore, a recovery based on an affirmative jury response to the civil conspiracy interrogatory cannot stand.

Examination of the definition of the tort of civil conspiracy, as usually formulated in Pennsylvania, evidences two separate and independent grounds for liability. One entails a combination to do an unlawful act, unlawful being, in the civil law, that which is tortious. The other entails a combination to do a lawful act by unlawful means. As will be seen, this does not require use of tortious methods but refers to the element of intent. Some inquiry into the historical development of the civil tort of conspiracy *548 is necessary to understand the distinguishing features of each of the distinct strains of the modern tort.

The original tort of conspiracy was primarily connected with the malicious use of civil process. 2 This was remedied by an action on the case, the gist of which was the damage suffered. It developed into the substantive tort of malicious prosecution, 3 after which civil conspiracy apparently lay quiescent for some time. However, when the “modern tort” of conspiracy came into use in the nineteenth century, it was this original line of conspiracy cases which was relied on to support the claim that conspiracy did not exist at all as an independent tort. Authorities holding this view claimed that the tort of civil conspiracy consisted of the unlawful acts causing damage done by each and all of the parties to a conspiracy “and the conspiracy is only important as a circumstance to be taken into account in considering the legality of the act done, and the damage inflicted.” 4 There were adherents to this view, both in England and in this country. 5 More than 70 years ago, this circuit held that “in an action on the case for conspiracy the gist of the action is not the conspiracy charged, but the tort working damage to the plaintiff.” 6 In a significant decision of the same period, the New York Court of Appeals held that a demurrer should have been sustained because a cause of action for the substantive torts of slander and malicious abuse of legal process had been joined with a cause of action for conspiracy by several of the defendants pursuant to which the slanders and prosecutions were undertaken. There again the court held that the gravamen of the civil action on the case for conspiracy “was not the conspiracy, but the tort.” 7

The contrary line of authority holding that conspiracy existed as an independent tort stemmed from a second and newer line of cases with a distinct genesis. According to Holdsworth, the “modern tort” of conspiracy came into prominence in England in the latter part of the nineteenth century as a replacement for criminal conspiracy which, by legislation enacted in 1875, could no longer be used in trade disputes. This enactment did not preclude suit by the person injured by such a conspiracy from bringing a civil action for the damages caused by it. 8 Under this line of cases, the tort of conspiracy corresponded to the crime, and the fact of the conspiracy was the essence of the tort as it was of the crime. 9

The division among the authorities was drawn in the early cases along the issue whether a recovery for the tort of conspiracy could be had against only one of the conspirators. Under the view of those authorities which considered the gravamen of the conspiracy as the wrongful act done pursuant to the conspiracy and the resulting damage, the action could proceed against only one defendant; 10 conversely, those authorities which viewed conspiracy as an independent tort which lay on the foundation of the unlawful combination held that plaintiff could not recover against one of the defendants without establishing a right to recover against all. 11

*549 In an early Pennsylvania case, antedating even the 1875 statute referred to by Holds-worth, the Court held that even if the slanders uttered were not actionable, a conspiracy to utter the slanders would be the basis of a suit, thus recognizing conspiracy as an independent tort. 12 Further evidence that Pennsylvania recognized conspiracy independently is seen in Collins v. Cronin, 117 Pa. 35, 45 , 11 A. 869, 870 (1887), where the court stated:

[I]n the case in hand the conspiracy was everything. Without it the plaintiff had no cause of action, for the plain reason that the acts charged in the declaration were of such a nature that they could not be committed by one defendant alone.

Although no specific discussion of the issue has been located, it appears that the modern Pennsylvania tort of civil conspiracy is a fusion of both lines of cases and makes actionable the tort of conspiracy under either of the antecedent strains. Thus, that division of the present tort which grounds liability on the “combination to do an unlawful act” stems from the earlier conspiracy tort in which the gist of the conspiracy was the tort itself. The other division of the conspiracy tort, that which grounds liability on the combination independent of any substantive tort, “combination to do a lawful act by unlawful means”, stems from the cases holding that conspiracy was itself an independent tort.

It is necessary to recognize under which aspect of the conspiracy tort the action is proceeding because there are distinct elements and characteristics pertinent to each. A conspiracy which is actionable as a combination to do a tortious act may easily be confused with an action claiming damages for the tortious act itself. In fact, it is questionable whether one should be permitted to recover for both the substantive tort and the conspiracy to engage in the substantive tort. We have found no Pennsylvania case which permits recovery for both, and no discussion of the issue in the Pennsylvania cases. 13 The cases relied on by the trial court as establishing the general tort of civil conspiracy in Pennsylvania are all cases in which it appears that plaintiffs sued only for the conspiracy, without also claiming damages for the substantive tort. 14 For example, in Fife v. The Great Atlantic & Pacific Tea Co., 356 Pa. 265 , 52 A.2d 24 , cert. denied, 332 U.S. 778 , 68 S.Ct. 42 , 92 L.Ed.2d 362 (1947), the complaint alleged a conspiracy having for its object a breach of contract between defendant, The Great Atlantic & Pacific Tea Co., and some independent haulers. The court did not have before it any claim by the plaintiffs to recover damages on the substantive claim of breach of contract. Similarly, in United Aircraft v. Boreen, 413 F.2d 694 (3d Cir. 1969), the plaintiff’s allegations with respect to the conspiracy had been unsuccessful in the court below, as had been its claims on the other substantive torts for inducement to breach the employment relationship and breach of fiduciary duty. Thus, neither the trial court nor this court had occasion to consider a situation in which plaintiff was successful before the trier of fact on both the substantive tort and the conspiracy tort.

Some discussion of the issue appears in an early Wisconsin case, Patnode v. Westenhaver, 114 Wis. 460 , 90 N.W. 467 (1902), *550 where plaintiff sued for conspiracy to defraud her of certain real estate. 15 The court recognized that the action could proceed on the conspiracy, but stated:

“The gist [of this action] is the damage suffered by a wrong which was distinct from other wrongs which were in a measure incidental thereto. * * * The cause of action for the conspiracy in such circumstances is a possession by itself, a right to prosecute for the damages caused by the executed fraudulent combination. * * * The right to redress for damages caused by a consummated conspiracy is distinct, so to speak, from the right to redress for wrongs caused in the progress of its execution. It may go against all the members of the combine, and there may be incidental transactions causing damage included in the claim against all, from which causes of action may arise against individual members of the combine. The prosecution of all for the conspiracy may proceed concurrently with the prosecution of one or more members of the combine liable for some element of the damage in another form of action, up to the point of satisfaction, at which point the element satisfied drops out, as there can be but one satisfaction for the same element of damage.” 90 N.W. at 473-74 (emphasis added).

The decision recognizes that at some point, at least by the timé of the final decision, the conspiracy to do the tort merges with an action on the tort itself.

This is not to suggest that an action may not be brought both for the substantive tort and the conspiracy to do the substantive tort. The plaintiff may prefer to recover on the conspiracy count because it is likely to demonstrate an aggravation of the damages. The conspiracy throws light on the quality of the acts and the damage flowing thereon. Plaintiff should be able to proceed concurrently on both because s/he may not be successful in proving the substantive tort but may be able to convince the fact finder that there was a conspiracy to injure him or her. On the other hand, plaintiff may be unsuccessful on the conspiracy claim because s/he is unable to convince the fact finder that more than one actor shared the necessary intent or participated in the commission of the tort, but would still be entitled to recover on the substantive tort against the responsible individual defendant.

As to ultimate recovery, however, the tort situation differs from the well-established rule in the criminal law that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. 16 The rationale for the rule in the criminal law is that the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise. 17 In the tort law, a suit aims at a far different result — damages for the injury inflicted. Great caution must be exercised to avoid a duplication in damages when there is a verdict for both the substantive tort and the conspiracy to do the tort.

There is far less likelihood or possibility of duplication in the second division of civil conspiracy, that which requires a combination “to do a lawful act by unlawful means,” because, by definition, no tort has *551 been committed. The gravamen of that strain of conspiracy is the combination to do acts with intent to injure another. The early Pennsylvania cases clearly distinguished between the underlying tort and the conspiracy with unlawful intent in connection with the tort of conspiracy to slander plaintiff:

* * * A conspiracy to do an illegal thing is actionable, if injury proceed from it; and where the illegal purpose has been executed, it is false and malicious wherever the motive for the conspiracy to execute it was false and malicious. Ex vi termini, a conspiracy to accuse is evidence of its illegality . . . [Where] the uttering of the words in which it [the defamatory charge] is made, is not the gist of the action, they need not be set forth. 18

Thus, a combination may amount to a conspiracy although its object be to do an act which, if done by an individual, would not be an unlawful act. 19 The rationale for such a tort is that the combination itself provides the additional power to oppress individuals, “since there is a power in numbers, when acting in concert, to inflict injury, which does not reside in persons acting separately.” 20

Turning to the civil conspiracy verdict in the present case, it is necessary to ascertain which aspect of the civil conspiracy tort was presented to the jury. It is significant in this case because the jury also returned verdicts on two of the underlying torts against all of the defendants, and as noted above, recovery on these verdicts will be sustained by vote of the majority of the panel. Therefore, if the conspiracy count was presented to the jury in a manner which duplicated the substantive torts rather than in a manner which was independent of them, the verdict on the conspiracy interrogatory cannot stand.

The interrogatory, when numerals and emphasis are added, reads:

5. Did [ABC] and Mr. Franklin conspire together to commit unlawful acts or lawful acts with an unlawful purpose in regard to [1] the alleged breach of a fiduciary duty by Mr. Franklin or [2] in regard to the alleged systematic inducement of key [FMC] employees, or [3] in regard to the alleged disclosure of trade secrets, for the purpose of destroying [FMC] in order to arrange its acquisition at a depressed price or to otherwise injure plaintiff.

It is immediately apparent that it contains elements of both aspects of the conspiracy tort since it refers both to the tortious acts and the unlawful intent. The language of the interrogatory ties the conspiracy to the tortious acts: “Did [defendants] conspire ... in regard to [commission of the three substantive torts . . . for the unlawful purpose?]” The distinction between the alternative theories of recovery under which the .civil conspiracy tort can be shown, which might have clarified the difference, was also not made any clearer in the jury instructions. There again the court stressed the relationship between the conspiracy and the underlying torts. 21 It is possible that the interrogatory led the jury to believe that its affirmative verdict against all of the defendants on two of the three substantive torts, the breach of fiduciary responsibility and interference, should, *552 as a matter of consistency, be reflected also by an affirmative verdict on the conspiracy.

If so, then the conspiracy verdict duplicates the verdict on the breach of fiduciary duty and the interference with FMC employees. It is no answer to this duplication that in Pennsylvania, the conspiracy is a tort separate from interference. That simply signifies that plaintiff might have recovered under either theory, but does not permit plaintiff to recover for both. Nor could the trial court’s cautionary advice to the jury to avoid duplication as to damages excuse what is an inherent duplication in the manner in which the liability interrogatory was presented. It is not necessary here to consider what the result would be had the interrogatory been framed to eliminate any reference to the substantive torts. We need not reach the question whether an interrogatory that merely asked “Did ABC and Mr. Franklin conspire together to commit lawful acts with an unlawful purpose in order to destroy FMC to arrange its acquisition at a depressed price or to otherwise injure plaintiff?” could have been the basis for a recovery for conspiracy in addition to the recovery for substantive torts. That was not the interrogatory that was given.

A review of the trial colloquy shows that plaintiff’s counsel was aware of the possibility of duplication which the conspiracy interrogatory posed if the jury were to return a verdict on the substantive torts as well as on the conspiracy verdict as raised, but pressed conspiracy as an independent interrogatory because he believed that “sometimes it is easier to prove conspiracy than to prove the act.” 22 He conceded that if the jury found in plaintiff’s favor on the three underlying torts, the conspiracy interrogatory was immaterial. 23 There is no reason why that is not also true although the jury found in plaintiff’s favor on only two of the three underlying torts, since in this case no effort was made to show liability on the third tort, disclosure of trade secrets, arising from the conspiracy as distinct from the substantive tort.

Since interrogatory 5 was presented in a manner that was inherently duplicative, reversal of the verdict on the conspiracy count is proper.

II.

Judgment Notwithstanding the Verdict on Interference with FMC Employees

I do not differ in any significant respect with Judge Gibbons’ articulation of the legal principles applicable to the interference tort, but I comment separately because he relies in part on the jury’s verdict on the civil conspiracy as the basis on which the jury could have found defendants used improper means. The Restatement (Second) formulation of the interference tort, approvingly adopted in Adler, Barish, Daniels, Levin, etc. v. Epstein, 482 Pa. 416 , 393 A.2d 1175 (1978), appeal dismissed, 442 U.S. 907 , 99 S.Ct. 2817 , 61 L.Ed.2d 272 (1979), no longer requires any finding of tortious activity. Its broader focus does include the element of improper motive as one which must be considered, but the fact of such improper motive by the defendants was supplied in this case by the jury’s affirmative verdict on both interrogatories 4 and 5. Although as noted in Section I. above, interrogatory 5 did not constitute a proper basis for a finding of civil conspiracy, it did require that the jury find improper intent as a necessary element of the tort as it was framed. Therefore, the jury’s affirmative finding shows that the improper intent was established. Similarly, the trial court, in instructing the jury regarding interrogatory 4, advised the jury to consider factors under the older “privilege” formulation which are similar to the factors set forth in Section 767 of the Restatement (Second). Therefore, the jury’s finding that defend *553 ants’ interference was not privileged can be equated with the necessary finding under the newer formulation that the defendants acted improperly. Accordingly, the judgment n. o. v. on interference was improper and the jury’s verdict on that count should be sustained for the reasons more fully discussed in the majority opinion.

III.

Directed Verdict on the Sherman Act Claim

I concur in the court’s decision affirming the action of the trial court in directing a verdict on the count of the complaint alleging a violation of section 1 of the Sherman Act. I write separately because I'believe the issue merits more discussion than is set forth in the majority opinion.

There are two distinct bases to Judge Gibbons’ affirmance. One deals with the necessity for showing some anticompetitive effect in order to make out a prima facie violation of section 1 of the Sherman Act. The other deals with the way in which behavior which would constitute a tortious conspiracy under state law should be treated under the antitrust laws.

There is no need in this case to engage in any extended discussion of the history behind and the rationale for the characterization of conduct into the per se and rule of reason classifications for purposes of the antitrust laws. 24 It suffices to note that the distinction is made essentially for administrative purposes, to relax the evidentiary requirement which would otherwise prevail in those cases which experience has shown involve restraints which are, by their very nature and necessary effect, anticompetitive. 25 Characterization of certain conduct as falling within the per se category eliminates the need to produce evidence that the actors have taken the action with anticompetitive motive or that the action has in fact resulted in injury to competition. The characterization of such conduct has been made by the Court based on its “considerable experience with certain business' relationships.” 26 There have been occasions when the Court, after initially fashioning a per se rule for a certain type of conduct,' has subsequently determined that the absence of demonstrably certain anti-competitive effect and the possibility of 'economic utility for such an arrangement make utilization of per se treatment unwarranted. 27

This separate evidentiary treatment of restraints under section 1 of the Sherman Act does not mean that those restraints which must be evaluated under the rule of reason stand on any inferior ground under antitrust policy. Although the inquiry is more extended, it is directed to the same end albeit on an ad hoc basis, an analysis of the conduct in light of the overriding value of the Sherman Act to encourage, maintain, and preserve competition. As to that category of restraints the courts simply are unable to make the presumption that the conduct will always fall within the proscription of the antitrust laws, and therefore plaintiffs must shoulder the burden of proving either its anticompetitive purpose or its anticompetitive effect. Naturally, the proof necessary to sustain the burden will vary in each case, since the variations of circumstances are as multiplicious as are the number of interbusiness relationships in our complex highly industrialized economy.

*554 In most instances plaintiffs seeking to show a violation of the Sherman Act for a restraint which must be evaluated under the rule of reason standard have done so by attempting to show an anticompetitive effect because it is more easily demonstrable than showing an anticompetitive purpose. •That effect may vary from case to case. I do not read the law of this circuit to impose upon antitrust plaintiffs any greater burden than exists elsewhere. Certainly being driven out of business is itself an anticompetitive effect which would amply satisfy the requisite injury requirement. For this, we have no lesser authority than the Supreme Court case of Klor’s v. Broadway-Hale Stores, 359 U.S. 207 , 79 S.Ct. 705 , 3 L.Ed.2d 741 (1959), holding that the elimination of one small business is itself anti-competitive notwithstanding the presence of hundreds of other competitors in the area, some within a few blocks of the victim. Similarly, in Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473 , 82 S.Ct. 486 , 7 L.Ed.2d 458 (1962), the Court rejected the argument that the antitrust laws would not protect against the destruction of a business simply because the public would still receive the same service through its successor. I see nothing in the decision in Sitkin Smelting & Refining Co. v. FMC Corp., 575 F.2d 440 (3d Cir.), cert. denied, 439 U.S. 866 , 99 S.Ct. 191 , 58 L.Ed.2d 176 (1978), which would derogate from this well-established principle. In that case, after determining that the restraint was not comparable to those falling within the per se category, the court held plaintiffs did not maintain their burden to show anticompetitive effect. The majority noted that such effect could be shown “by controlling market prices, imposing undue limitations on competitive conditions, or unreasonably restricting competitive opportunity.” Id. at 448.

Nor do I read the cases in this circuit to limit antitrust plaintiffs to' a showing of anticompetitive effect in order to recover under the Sherman Act. It is the classic statement of the rule of reason that it can be violated either by a showing of anticompetitive effect or a showing of anticompetitive purpose. “Purpose and effect are disjunctively linked in antitrust analysis, both under the rule of reason and in the application of the per se doctrine.” 28 In its most recent restatement to that effect, the Court in United States v. United States Gypsum Co., 438 U.S. 422 , 436 n. 13, 98 S.Ct. 2864 , 2873 n. 13, 57 L.Ed.2d 854 (1978), reaffirmed “the general rule that a civil violation can be established by proof of either an unlawful purpose or an anticompetitive effect.”

Although one might question why anti-competitive purpose should be enough to satisfy the plaintiff’s burden, the rationale emerges from the precedents. In Board of Trade of the City of Chicago v. United States, 246 U.S. 231, 238 , 38 S.Ct. 242, 244 , 62 L.Ed. 683 (1918), Justice Brandeis, in discussing the factors which must be considered in evaluating a restraint under the rule of reason test, stated:

The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse; but because knowledge of intent may help the court to interpret facts and predict consequences. (emphasis added).

The nexus between predatory intent and injury to competition was also discussed by the Court in another context, when in Utah Pie Co. v. Continental Baking Co., 386 U.S. 685 , 696 n. 12, 87 S.Ct. 1326 , 1333 n. 12, 18 L.Ed.2d 406 (1967), it stated:

In [Anheuser-Busch, Inc. v. F. T. C., 289 F.2d 835 (7th Cir.)] the court went so far as to suggest that:

“If . . . the projection [to ascertain the future effect of price discrimination] is based upon predatoriness or buccaneering, it can reasonably be forecast that an adverse effect on competition may occur. In that event, the discriminations in their *555 incipiency are such that they may have the prescribed effect to establish a violation of § 2(a). If one engages in the latter type of pricing activity, a reasonable probability may be inferred that its willful misconduct may substantially lessen, injure, destroy or prevent competition.” 289 F.2d at 843 .

Chief Justice Hughes noted in a related antitrust context that “knowledge of actual intent is an aid in the interpretation of facts and prediction of consequences.” Appalachian Coals, Inc. v. United States, 288 U.S. 344, 372 [ 53 S.Ct. 471, 478 , 77 L.Ed. 825 ] and we do not think it unreasonable for courts to follow that lead, (emphasis in original).

In a persuasive analysis of the relationship of purpose and effect under section 1 of the Sherman Act, Professor Sullivan has written:

There is an implacable logic in condemning conduct on the basis of ill effects, regardless of benign purposes . . . When competitive processes are or will be stifled by particular conduct, it is small comfort that those engaging in it have other ends in view.

Correlatively, when the purpose for conduct is itself anticompetitive, there is reason for condemning it on that ground, without meticulous inquiry into whether the market structure will facilitate the achievement of the condemned ends. The fullness of information about structure which is needed for confident prediction about effects is not always at hand; often, relevant information can be gathered only at great costs to the parties and the judicial process, and even then leaves ultimate questions cloaked in uncertainty. Purpose, however, can stand as a surrogate for effects. The actors in the market-place will often be themselves the best judges of what they are capable of achieving and if they are aiming at wrongful ends we may logically treat their purposes as a guide to what they will accomplish. For this reason alone, it is wise policy to inhibit those who try to do wrong, without waiting to determine whether or not they are likely to succeed. 29

Neither of the cases referred to in the majority opinion is irreconcilable with accepted antitrust theory in this regard. In American Motor Inns, Inc. v. Holiday Inns, Inc., 521 F.2d 1230, 1248 (3d Cir. 1975), the court recognized that an agreement violates section 1 of the Sherman Act if it “was designed to achieve a forbidden restraint” even in the absence of any forbidden effect. Because the panel considered the intent and the impact inextricably intertwined in that case (“the trial judge found that the intended effect was the one which was in fact achieved”, id.), the case was remanded so that the trial court could explore the reasonableness vel non of the restriction on competition under the circumstances of that case. In Evans v. S. S. Kresge Co., 544 F.2d 1184 (3d Cir. 1976), cert. denied, 433 U.S. 908 , 97 S.Ct. 2973 , 53 L.Ed.2d 1092 (1977), the court considered the restraint only under the per se rule and found it did not fall within that category because its necessary effect could not be either to “suppress” or “destroy” competition. Plaintiff eschewed reliance on the rule of reason, id. at 1194 n. 30, and the court did not consider its applicability.

In the case at issue, the trial court directed a verdict for defendants on the Sherman Act claim because it found that plaintiff failed to carry its burden under the rule of reason standard and plaintiff failed to show that the activity fell within the per se category of restraints. With respect to plaintiff’s proof, the trial court noted that plaintiff

failed to introduce any evidence at all with respect to the existence of any market, the existence of any competition between itself and defendants, or any impact on competition itself. Plaintiff did not show that ABC — a possible potential competitor of plaintiff — at any relevant time became a competitor in any relevant market. Nor did plaintiff demonstrate *556 that defendants’ acts had any substantial adverse effect on competition, although plaintiff itself may have been injured. Franklin Music Co. v. American Broadcasting Companies, No. 74-2485 (E.D.Pa. Aug. 4, 1978) (Memorandum and Order) (Appendix at 1584).

I do not understand the trial court to have held that injury to a competitor would not be a sufficient basis for finding the requisite anticompetitive impact. As noted above, in an appropriate case injury to a competitor may itself demonstrate injury to competition. Plaintiff simply failed to prove that was so in this case. Furthermore, there is no indication that plaintiff produced any evidence that defendants’ intent, however malicious in plaintiff’s view, was to destroy plaintiff in order to eliminate its competition. Therefore, the trial court had no occasion to consider whether this was an appropriate case to find defendants’ actions unreasonable under section 1 of the Sherman Act because of the defendants’ anticompetitive intent alone. There is a substantial difference between intent to injure a party which supports a tort recovery and the type of anticompetitive intent on which a Sherman Act § 1 claim can be founded. For example, if two disgruntled customers conspire to burn a department store which would, if accomplished, have the effect of destroying its business, it seems improbable that a court would hold that the intent which suffices to support a claim under state tort law is itself also enough to support a claim for violation of section 1 of the Sherman Act. The anti-competitive intent which acts as a “surrogate for effects” must be targeted directly to the victim in its competitive aspects — injury to the victim qua competitor. It follows that plaintiff in this case cannot resurrect its antitrust claim because of its success before the jury on the intentional state tort claims, even though the necessary predicate of that success was the finding of an intent to injure plaintiff.

The majority opinion also affirms the trial court’s holding that the intentional commission of the state tort of conspiracy did not establish a per se violation of the Sherman Act. This entails consideration of the treatment under the antitrust laws of intentional business torts unlawful under state law.

Some of the leading commentators in the field of antitrust purport to see the cases on this issue divided into two lines of authority — those which label conduct constituting business torts, such as pirating employees or disparagement of plaintiff’s product, as per se violations of section 1 of the Sherman Act and those which apply the rule of reason because of their recognition that such conduct is not always exclusionary. 30 A review of the cases cited makes clear that they do not in fact establish any such per se rule in the sense that neither anticompetitive impact nor anticompetitive intent need be shown. All of the cases are drawn together by the common denominator, noted by the court in each case, that the purpose of the action was to destroy the competition of the plaintiff. Thus in Albert Pick-Barth Co. v. Mitchell Woodbury Corp., 57 F.2d 96 (1st Cir. 1932), cert. denied, 286 U.S. 552 , 52 S.Ct. 503 , 76 L.Ed. 1288 (1931), ordinarily cited as the leading case for the proposition that per se treatment under the antitrust laws is appropriate for state unfair competition torts, the court noted at several instances that the Sherman Act claim was affirmed on the basis, in part, of the proven intent to eliminate the plaintiff’s competition. For example, the court stated:

But we think it is not necessary to show an unreasonable restraint of interstate trade as an accomplished fact, if a conspiracy is proved, the intent and purpose of which, if carried out, would eliminate the largest competitor of one of the conspirators in a particular section of the country, which competitor controlled a substantial part of the trade in that section, and one of the methods of suppressing such competition was unlawful or unfair competition. Such a result, if accomplished, would clearly be an unreasonable restraint of trade.

* * * * * *

*557 If a conspiracy is proven, the purpose or intent of which is by unfair means to eliminate a competitor in interstate trade and thereby suppress competition, such a conspiracy, we think, is a violation of section 1 of the Sherman Act. It is the intent and purpose which determines the legality of the conspiracy or combination. Loewe v. Lawlor [ 208 U.S. 274 , 28 S.Ct. 301 , 52 L.Ed. 488 ], supra. If acts done in furtherance of such unlawful purpose— though the unlawful purpose is not accomplished to such an extent as to constitute an unreasonable restraint of interstate trade — result in injury to a competitor in his business and property, such injured person may recover damages for whatever injuries he has thereby suffered. Id. at 102 (emphasis added).

It is evident that the Albert Pick-Barth case is consistent with characterization of state unfair competitive torts as restraints which must be evaluated under the rule of reason standard. As previously discussed, and as confirmed by the court’s analysis in that case, absence of anticompetitive impact will not be fatally defective if the requisite anticompetitive purpose can be found.

In C. Albert Sauter Co. v. Richard S. Sauter Co., 368 F.Supp. 501, 514 (E.D.Pa. 1973), the court sustained a jury’s verdict that defendants violated the antitrust laws where “plaintiff alleged and proved by a preponderance of the evidence that the defendants conspired, agreed or had an understanding to engage in acts of unfair competition with the intent to injure plaintiff as a competitor by impairing plaintiff’s ability to compete in interstate commerce.” The court found that a series of acts performed by the defendants, including pirating of its key employees, selection of a similar name to capitalize upon plaintiff’s goodwill and copying of plaintiff’s job orders subsequently used to prepare bids competitive with plaintiff, provided ample evidence from which the jury could have found the requisite intent to injure plaintiff. Although the court inexplicably confused the per se category with the rule of reason category by stating that “[conspiracies are per se unreasonable when they are accompanied with a specific intent to accomplish a forbidden result”, id., and accordingly categorized the conspiracy involved in that case as within the per se category, it is clear that there was a finding of anticompetitive purpose.

Similarly, in Atlantic Heel Co. v. Allied Heel Co., 284 F.2d 879 (1st Cir. 1960), the court also found that a complaint which alleged the defendants conspired “to destroy plaintiff in its interstate and foreign business” withstood a motion to dismiss under Rule 12(b)(6). There again the court mistakenly stated, in dictum, that the complaint alleged a per se violation but it is apparent from its statement of the question, “whether or not the allegation of a conspiracy to destroy a competitor as alleged here is a per se violation of § 1 so that the rationale of the Klor’s case applies, and, thus, no allegations of further facts showing the basis of public harm and consequent unreasonableness of the restraint are necessary” (id. at 883), that this does not differ from the treatment of restraints under the rule of reason evaluation. Analysis shows that each of the cases cited by Professors Areeda and Turner for the proposition that some courts have found that business torts constitute a per se violation of section 1 of the Sherman Act was one in which the court actually required a showing of the purpose or intent of the activity. In one of the cases, Perryton Wholesale Inc. v. Pioneer Distributing Co. of Kansas, 353 F.2d 618, 622 (10th Cir. 1965), cert. denied, 383 U.S. 945 , 86 S.Ct. 1202 , 16 L.Ed.2d 208 (1966), the court found both an effect on interstate commerce and that “the intent of the conspiracy was to eliminate the competitor predominant in the area by the subversion of its employees.” 31

There are valid reasons why we should be reluctant to classify intentional state torts *558 such as unfair competition or even civil conspiracy as per se violations of the Sherman Act. There are instances when the goal of the antitrust laws in the preservation of competition is inconsistent with the protection of other interests under state tort law. 32 The per se classification would preclude the presentation of evidence of market conditions. It might deter formation of new small businesses composed of some former employees of a dominant company who seek to instill competition into a languid market. Although that was not the situation presented by the facts of this case, use of a per se rule would prevent making such a distinction. Therefore, I believe that the trial court correctly rejected the proposition that the intentional commission of a state tort constitutes a per se antitrust violation. Plaintiff was required to succeed on the basis of its claim that the acts, whatever their status under state tort law, also constituted an unreasonable restraint of trade. Because it failed to do so, it could not recover for a violation of the Sherman Act.

SEITZ, Chief Judge.

This is one of those cases where an appellate court is confronted with the uninspiring yet important task of evaluating the record in detail to determine whether jury issues were really created. The various answers to the special interrogatories and the facts underlying them cannot be viewed in isolation. When seen as a whole, the evidence does not, in my view, support any of the claims on which the plaintiff succeeded in the district court.

Although I agree with Judge Sloviter that the judgment on the civil conspiracy claim should be reversed, in my view there was insufficient evidence to create a jury issue. In addition, I also believe there is insufficient evidence of Franklin’s breach of fiduciary duty. Moreover, I reach a different result than my colleagues as to the district court’s grant of judgment n. o. v. on the claim of interference with at-will employees. Finally, I agree with their disposition of the remaining substantive claims urged by the plaintiff as grounds for relief.

I. Civil Conspiracy

The doctrine of civil conspiracy has had a stormy history in the common law. For example, it played a controversial role in the fight of labor unions for recognition. See, e. g., Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229 , 38 S.Ct. 65 , 62 L.Ed. 260 (1917); Fife v. Great Atlantic & Pacific Tea Co., 356 Pa. 265 , 52 A.2d 24 , cert. denied, 332 U.S. 778 , 68 S.Ct. 42 , 92 L.Ed. 362 (1947). In light of this history, Pennsylvania, whose law is controlling on this issue, has severely restricted the scope of the doctrine. Thus under Pennsylvania law, “while conspiracy may be proved by circumstantial evidence, the evidence must be full, clear and satisfactory.” Blank & Gottschall Co. v. First National Bank of Sunbury, 355 Pa. 502 , 50 A.2d 218, 220 (1947). Cf. Landau v. Western Pennsylvania Bank, 445 Pa. 217 , 282 A.2d 335 (1971) (allegation in complaint of improper purpose insufficient, making summary judgment proper).

Moreover, the state has been especially cautious in using the doctrine where the facts relate to a competitive situation or involve a dispute between employee and employer. E. g., Menefee v. Columbia Broadcasting System, Inc., 458 Pa. 46 , 329 A.2d 216 (1974) (dismissal proper where the defendant-employer had a right to terminate contract of plaintiff-employee at will). Accord, United Aircraft Corp. v. Boreen, 413 F.2d 694, 700 (3d Cir. 1969) (evidence insufficient to show agreement between at-will employees who quit and formed a competing firm).

With these principles in mind, I turn to the evidence adduced to support the jury’s verdict on this question. As an initial matter, I note that the jury’s negative answer to interrogatory 2 (inducement of employees with the purpose of crippling Franklin Music) means that the object of the conspir *559 acy was not to drive Franklin Music out of business. Instead, it must be assumed that the purpose of the conspiracy was to depress the price of Franklin Music so that ABC could acquire it. Thus the question is whether there was “full, clear, and satisfactory” evidence that ABC and Franklin conspired to depress the market value of Franklin Music.

The first type of evidence offered is the meetings held by Franklin and ABC prior to his termination of his contract with Franklin Music. I agree with the plaintiff that the evidence establishes that Franklin and ABC discussed a possible acquisition of Franklin Music — but that is all the evidence discloses. For example, Mr. Rich, the treasurer and controller of ABC Record & Tape, testified:

Q: Now, let’s go back to Atlanta, when you were with Mr. Franklin.. During that time that you were with Mr. Franklin you had some discussions, didn’t you?

A: Some discussions.

Q: And was one of them the fact that Mr. Franklin was suggesting that ABC should acquire Franklin Music?

A: The subject was brought up.

This statement is typical of those cited by plaintiff and does no more than prove that ABC and Franklin considered buying Franklin Music as an alternative to internal expansion. But one cannot infer from such an expression of interest in purchasing another firm that the parties were unlawfully conspiring to drive down the price of the firm. The fact that ABC considered buying the plaintiff does not by itself permit a reasonable inference of an attempt to harm plaintiff to facilitate the acquisition. Neither the mere fact that meetings occurred nor the content of those meetings as revealed in this record offer circumstantial proof of a conspiratorial purpose.

Nor do the internal memoranda of ABC reveal any ABC-Franklin conspiracy to drive down the price of Franklin Music. For example, a report prepared in October 1973 establishes that ABC visited individuals at three companies in addition to Franklin Music to gather information about expansion into the retail record market. Similarly, the expansion and marketing plans drawn up in the winter of 1973-1974 discuss a wide variety of competitors, listing the strengths and weaknesses of each. Every recommendation in the reports is entirely lawful. Thus the only thing these memoranda prove is that ABC, like any cautious entrant into a new market, carefully surveyed the marketing methods, strengths, and weaknesses of its potential competitors. The reports cover a wide range of topics and firms; plaintiff produced no report focusing in on Franklin Music. In short, ABC’s own documents do not support an inference of any scheme with Franklin to drive down the price of any of the firms or Franklin Music in particular.

Neither can a conspiracy be inferred from the acts of the defendants. For example, plaintiff points to ABC’s offer of a price that Rosen felt was too low. I fail to see how a purchase offer, which the evidence shows was developed after careful study by ABC’s acquisition department, that the plaintiff rejects as too low can be evidence of a scheme to depress a market .price where there is no evidence that the offer was communicated to anyone but the plaintiff. The plaintiff may not elevate differences at the bargaining table, without more, into evidence of an improper motivation.

Next, plaintiff argues that the conduct allegedly establishing a breach of fiduciary duty by Franklin demonstrates a Franklin-ABC conspiracy. The proper analysis of this argument is to determine how the jury’s total verdict relates to the theories pressed upon it at trial by plaintiff. Assuming for the moment that Franklin breached his fiduciary duty to Franklin Music, see part II infra, the theory that the breach reveals conspiratorial motive is not supported by the jury’s answers to the interrogatories or the evidence.

At trial, the plaintiff argued that Franklin did a number of improper things, such as neglecting his work, being absent because *560 of meetings with ABC, revealing information improperly to ABC, and structuring his departure to maximize harm to Franklin Music. The jury found a breach of duty but also found that the breach only caused $25,000 in loss to Franklin Music. The evidence demonstrates that the award of $25,-000 implicitly rejects all but one of the theories as to breach of fiduciary duty advanced at trial by plaintiff.

Plaintiff’s theory at trial was that the $25,000 represents advertising revenues lost because Franklin delegated a certain task to a subordinate. A witness expressly tied the exact sum to that event, 1 and plaintiff points to no other alleged loss that comes to that specific amount. Moreover, the jury’s apparent belief that Franklin did not neglect his work (whether by design or because of meeting with ABC) except in this one instance was entirely natural: the evidence demonstrates that prior to Franklin’s departure, Franklin Music’s sales increased, hardly evidence of dereliction of duty. In short, the jury felt that Franklin worked just as hard as before the ABC negotiations with one isolated exception.

Nor was there any evidence that once negotiations with ABC started that Franklin began to structure his own duties in a novel manner or neglected to train employees that had been his duty to train. It was Rosen’s decision to entrust a large part of the business to an at-will employee, and he cannot now point to that responsibility as evidence of a conspiracy between that employee and his new employer. Moreover, the timing of his departure did no damage. Franklin had no duty to reveal his intention to leave the company. See page 533 & n.l. He left after the Christmas rush, the busiest time of year in the record industry, was over. It seems more plausible to think that a conspirator would pick a more opportune moment to withdraw his valuable services.

Finally, in assessing damages, the jury correctly rejected the claim that Franklin Music was harmed by the disclosure of confidential information. Initially, the answer to interrogatory ■ 3(b) establishes that Franklin disclosed nothing improper after his departure. The evidence shows the same is true of events prior to that time. Franklin described one of the visits he and ABC officials made to a Franklin Music store:

Q: Were you asked any questions by them after they looked around?

A: I was asked general questions about why I believe that this sort of merchandising is better than some of the other types, why I kept my classics in the back, what my feelings were about mixing audio in the same store with records; general questions like that.

To the extent Franklin showed ABC what was open to the public, he breached no duty of confidentiality.

Plaintiff also points to two other incidents of improper disclosure of information. First, Franklin told an employee to show the ABC officials whatever they wanted. When testifying, the employee did not say what in fact he showed them, making the testimony less than instructive. Second, Franklin permitted ABC to see a “point-of-sale” system, a computer that gives an immediate readout and inventory account on the register tape. The system was designed by IBM and thus presumably was not a trade secret of Franklin Music. In any event, as the award of $25,000 demonstrates, the jury believed these events to have caused plaintiff no damage.

In summary, assuming a breach of fiduciary duty, the verdict, read in light of the *561 evidence, shows no more than that Franklin improperly delegated one task to a subordinate that cost plaintiff $25,000. He did not neglect his other duties, as the evidence of sales shows, nor did he reveal anything not generally available. He did not structure his own work or that of any other employee any different than he had prior to the negotiations with ABC, and he did not leave Franklin Music at an inopportune time. In short, the jury found little in Franklin’s conduct prior to his employment with ABC that harmed Franklin Music. It therefore could not infer from that conduct that he conspired with ABC to drive down the market value of Franklin Music.

Another claimed indicia of a conspiracy is statements made by Franklin to the trade press. In accord with my previous discussion, such an expression of interest in purchasing Franklin Music implies no improper design. Nor can a “facetious” comparison between ABC’s goals and Franklin Music’s goals be used to infer a conspiracy. Because the statements cannot be taken as derogatory of Franklin Music, one cannot infer from them an intent to depress Franklin Music’s market price.

The • last bit of evidence is that ABC induced eight at-will employees to leave Franklin Music and come with it. As already noted, the jury’s answer to interrogatory 2 establishes that ABC’s predominant purpose in hiring them was to get qualified employees and not to cripple or destroy Franklin Music. Assuming for the moment that the answer to interrogatory 4 (dealing with ABC’s inducement of the employees without a privilege to do so) was supported by the evidence, see part III infra, the answers to interrogatories 2 and 4 as they relate to the conspiracy claim in interrogatory 5 must be carefully delineated. The question is not whether the answer to interrogatory 2 totally precludes a finding of conspiracy, but rather how one may use the inducement of the employees as part of the evidence of a conspiracy.

Under Pennsylvania law, there are two bases of liability for inducement of breach of an at-will employment contract, both of which relate to the defendant’s purpose in inducing the employee to leave. The first unlawful purpose is damaging a competitor’s business, and the second is inducing the employees to engage in unlawful conduct, such as revealing trade secrets. Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618 , 136 A.2d 838 (1957). Accord, United States Aircraft Corp. v. Boreen, 413 F.2d 694 , 699 & n.3 (3d Cir. 1969).

In my view, this two-prong test is still the law in Pennsylvania even if one assumes some changes in the wording of the second prong. I find nothing in Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416 , 393 A.2d 1175 (1978), appeal dismissed, 442 U.S. 907 , 99 S.Ct. 2817 , 61 L.Ed.2d 272 (1979), which dealt with inducement of clients not with inducement of at-will employees, to suggest that Martucci does not remain the law of Pennsylvania. In addition, the two-part Martucci test is narrowly drawn for a good reason. If the legal standard is too broad or open-ended, it might interfere with the ability of at-will employees to freely seek out the best jobs. See part III infra. In short, there are strong policy considerations underlying the Martucci formulation, and we have absolutely no indication that Pennsylvania has abandoned these considerations or modified them since that decision was handed down. Accordingly, I would require a clearer indication from the Pennsylvania courts before I would hold that Martucci is no longer governing precedent in this case.

Moreover, I will assume, without deciding, that the general wording of interrogatory 4 properly states the second prong of the Martucci test. Nevertheless, general language about “privilege” must not obscure the fact that interrogatory 4 is a separate basis for liability and represents a legal theory distinct from that of interrogatory 2. Whether general phraseology or more specific guidelines are used, the two prongs of the Martucci test must remain analytically distinct. The motive under the second prong must be something other than an intent to destroy or cripple the competitor.

*562 There are two possible contexts in which to discuss this issue. On one hand, in considering interrogatory 4, it could be said that the reason ABC. had no privilege to induce the employees away was because its motive, at least in part, was to further the conspiracy to depress Franklin Music’s market price. On the other hand, in looking at the conspiracy, it is possible to point to the departure of the employees as evidence of the conspiracy. Such a theory requires three distinct analytical steps: (1) Despite the clear answer to interrogatory 2, it must be inferred that the defendants had a less-than-predominant motive to cripple Franklin Music. (2) Then this less-than-predominant motive must be used to find unprivileged conduct under interrogatory 4. (3) Finally, the answer to interrogatory 4 construed in this way must be employed to bolster the conspiracy charge under interrogatory 5.

I dispute this theory on two bases. First, because the jury rejected a motive to cripple Franklin Music in its answer to interrogatory 2, that motive cannot be brought back in through interrogatory 4, which rests on an entirely different legal theory. Whether stated in specific or general terms, the second part of the Martucci test relates to inducement for the purpose of getting the employees to engage in improper conduct. If the motive to cripple can be the basis for unprivileged conduct, then interrogatory 4 loses its separate existence and the second prong of Martucci is obliterated.

Second, the theory does not comport with the Pennsylvania law of civil conspiracy. As an initial matter, trying to determine a hypothetical mixture of motive from an interrogatory that is worded in a contrary manner is precisely the sort of speculation foreclosed by the “full, clear, and satisfactory” evidence rule applied by Pennsylvania to civil conspiracy. Where the jury found that ABC’s motive in hiring Franklin Music employees was not to damage Franklin Music’s viability as a business entity, Pennsylvania law prohibits use of the conduct as support for the proposition that ABC and Franklin decided to hurt Franklin Music and thereby depress its market price. Moreover, even if such speculation were proper, there is no evidence in the record upon which it can be based. The plaintiff points to no evidence that demonstrates that ABC had any purpose whatsoever in inducing the employees to cripple Franklin Music. As far as this record shows, we have no proof that ABC had any such intent at all, much less a guideline for determining how much less than predominant the hypothetical intent was. Whatever the merits of the answer to interrogatory 4, the answer to interrogatory 2 provides the jury’s dispositive response as to how ABC’s conduct vis-a-vis Franklin Music employees relates to the conspiracy charge.

The evidence taken as a whole does not satisfy the quantum of proof necessary under Pennsylvania law. It establishes the following: In the summer and fall of 1973, ABC decided to enter the retail record market. It therefore conducted marketing studies that covered several potential competitors, including Franklin Music. It contacted Franklin and at least three other individuals at other firms for information. In the fall, ABC began negotiating with Franklin, an at-will employee, for him to leave his job and discussed with him the possibility of buying Franklin Music. Prior to his departure, the only neglect of duty by Franklin found by the jury was delegation of one task to a subordinate. Franklin did not structure his own work or that of any other employee any different than in the past. He showed ABC officials a store open to the public and a computer produced by IBM. At no time, before or after his departure, did ABC receive any confidential information from him or anyone else. Franklin left after the Christmas rush, a period in which Franklin Music’s sales increased. After his departure, he made statements in the trade press that ABC was thinking of buying Franklin Music and facetiously compared the growth rates of ABC and Franklin Music. ABC did make an offer, which Franklin Music rejected as too low. Finally, ABC induced eight other at-will employees of Franklin Music to leave; its purpose was to secure competent employees.

*563 In my view, such evidence falls far short of “full, clear, and convincing” proof of a civil conspiracy to depress the market price of Franklin Music. Where a business declines while another firm is considering buying it, there is a natural tendency to find a conspiracy. But especially in areas of competition and shifting allegiances of at-will employees, the courts must look to the objective conduct of the defendants, which here does not support any inference of improper agreement or action. Thus I would agree that the judgment on the conspiracy claim should be reversed.

II. Franklin’s Breach of Fiduciary Duty

As demonstrated in the previous section, the jury’s verdict was that the only damage accruing from Franklin’s alleged breach of fiduciary duty was $25,000 lost due to his delegation of a task to a subordinate. The plaintiff’s theory was that in the fall of 1973, first, Franklin delegated a task he normally did himself, and, second, he did not properly supervise the subordinate in question. Neither of these two propositions is supported by the evidence.

First, the only witness on this point was Mr. Sukalski, a Franklin Music employee. He testified:

[The advertising work] was done occasionally by Mr. Goldstein, it was done occasionally by another young lady always under the supervision of Mr. Franklin, and it was done at his direction.

Thus this was not the first time that Franklin delegated advertising work to other employees. Moreover, there was no evidence to show that Franklin had done this particular task every year before — the only evidence in the record shows that he “occasionally” delegated this type of work and does not refer to this particular task.

Second, there was no evidence of improper supervision. Sukalski wrote a memorandum to Rosen saying he was at a loss to explain the incident. The employee to whom the task was delegated was not called as a witness or even identified. There was no evidence as to the instructions given by Franklin to that employee, whether the employee had experience, whether Franklin acted differently in this instance, or whether Franklin could have averted the loss had he acted differently.

Where there was no attempt to show that the incident in this case was unusual and no evidence to explain how the delegation caused the loss, I would find the evidence insufficient to sustain the verdict.

III. Inducement of Employees

As previously shown, under Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618 , 136 A.2d 838 (1957), the answers to interrogatories 2 and 4 require that the defendants’ liability here rest on a base separate from the alleged conspiracy. The district court correctly noted that to sustain a verdict on interrogatory 4, one must find that ABC induced the employees to engage in improper acts (e. g., disclosure of trade secrets) or that ABC used improper means in inducing the employees to leave (e. g., fraud, coercion). See United States Aircraft Corp. v. Boreen, 413 F.2d 694, 699 (3d Cir. 1969); Martucci, supra; Restatement (Second) of Torts §§ 767, comment c, 768, comment e (1979).

The record contains no evidence to support either of these two tests. As to the first, the answer to interrogatory 3 establishes that ABC did not receive any confidential information. Nor is there any other evidence in the record that defendants in any way attempted to induce any illegal activity by the employees.

As to the improper means test, the district court correctly characterized the evidence as follows:

Indulging in all possible inferences in plaintiff’s favor, the evidence shows only that A1 Franklin may have told Franklin Music employees jobs for them might become available and that he expressed his expectation — to the employees and to the press — that the future prospects for employees would be greater at ABC than at Franklin Music. In addition, Franklin made statements to the press about the manner in which he hoped ABC would expand, which statements later proved to have no basis in fact. ABC employees in *564 addition to Franklin may have also made ordinary business representations that Franklin Music was not as stable as it appeared on the surface — a prediction which was later proven true — and that ABC would be a better place to work in the future than Franklin Music.

In sum, the record reveals nothing more than an ordinary “sales pitch” to some Franklin Music employees in order to attract them to ABC.

The rules relating to inducement of at-will employees serve two purposes. First, they permit competitors to seek out the best employees without the disgruntled employer imposing his loss for departure of the employees on the competing employer. Second, they permit the employee to contract his services freely and at the best price. Thus the at-will employee must not be cut off from his potential employer without evidence of improper conduct. For these reasons, the two-prong test of Martucci must be carefully applied in light of its purpose to the facts in each case.

Because the district court applied the correct law to the facts in an accurate manner, I would uphold its grant of judgment n. o. v. on interrogatory 4.

IV.

I agree with Judge Sloviter that the judgment finding that ABC and Franklin conspired to lower the price of Franklin Music should be reversed. I would affirm the district court’s grant of judgment n. o. v. on the claim that ABC improperly induced Franklin Music’s employees to break their at-will employment contract. I would reverse the judgment on the claims relating to Franklin’s breach of fiduciary duty. I agree with the disposition of the remaining substantive claims urged by the plaintiff as grounds for relief. Finally, because of my approach, I do not confront the other trial issues addressed by my colleagues.

. Franklin Music Co. v. American Broadcasting Companies, No. 74-2485 (E.D.Pa. Aug. 4, 1978) (Memorandum and Order) (Appendix at 1560).

. 8 W. Holdsworth, A History of English Law, The Common Law and Its Rivals 385 (1926).

. Id. at 392-93; W. Prosser, Law of Torts 293 (4th ed. 1971).

. 8 W. Holdsworth, supra note 2, at 395.

. Ware and DeFreville, Ltd. v. Motor Trade Ass’n, [1921] 3 K.B. 40, 70; Green v. Davies, 182 N.Y. 499 , 75 N.E. 536 (1905).

. James v. Evans, 149 F. 136, 140 (3d Cir. 1906).

. Green v. Davies, 75 N.E. at 537 . The decision is criticized in Burdick, Conspiracy As a Crime, and As a Tort, 7 Colum.L.Rev. 229, 232-34 (1907). See also Burdick, The Tort of Conspiracy, 8 Colum.L.Rev. 117 (1908).

. 8 Holdsworth, supra note 2, at 392.

. Quinn v. Leathem [1901] A.C. 495, 542; Sorrell v. Smith [1925] A.C. 700, 712.

. Brackett v. Griswold, 112 N.Y. 454 , 20 N.E. 376 (1889).

. See, e. g., Train v. Taylor, 51 Hun. 215 , 4 N.Y.S. 492 (1889); Collins v. Cronin, 117 Pa. 35 , 11 A. 869 (1887).

. Hood v. Palm, 8 Pa. 237, 239 (1848); (“A conspiracy to defame by spoken words not actionable, would be equally a subject of prosecution by indictment; and if so, then equally a subject of prosecution by action, by reason of the presumption, that injury and damage would be produced by the combination of numbers.”)

. Several Pennsylvania cases have indicated that in an action based on a conspiracy theory, recovery may be had against a single defendant if the evidence did not support a finding of conspiracy but did support a finding that one defendant was culpable on the underlying substantive tort. Laverty v. Vanarsdale, 65 Pa. 507 (1870); Collins v. Cronin, 117 Pa. 35 , 11 A. 869 (1887); Rundell v. Kalbfus, 125 Pa. 123 , 17 A. 238 (1889); Fillman v. Ryon, 168 Pa. 484 , 32 A. 89 (1895).

. See Landau v. Western Pa. National Bank, 445 Pa. 217 , 282 A.2d 335 (1971); Fife v. The Great Atlantic & Pacific Tea Co., 356 Pa. 265 , 52 A.2d 24 , cert. denied, 332 U.S. 778 , 68 S.Ct. 42 , 92 L.Ed.2d 362 (1947); Bausbach v. Reiff, 244 Pa. 559 , 91 A. 224 (1914); Ballantine v. Cummings, 220 Pa. 621 , 70 A. 546 (1908).

. The alleged conspiracy was to do the following:

“That [one defendant] Hulbert should court and make love to plaintiff, and lead her to believe that he was intent on marrying her; that he should become engaged to marry her; that by means of the influence and control which the marriage engagement would enable said Hulbert to acquire over plaintiff, he should induce her to transfer her property to him without any, or for an inadequate or nominal- consideration; that he should then break the engagement and refuse to marry plaintiff; and that, if she should then seek to recover back her property, the defendants should charge plaintiff with unchastity and threaten to expose and disgrace her, and thereby frighten and prevent her from making any attempt to regain her property from said Hulbert[.]” 90 N.W. at 474 .

. Callanan v. United States, 364 U.S. 587, 593 , 81 S.Ct. 321 , 5 L.Ed.2d 312 (1961); Pinkerton v. United States, 328 U.S. 640, 643 , 66 S.Ct. 1180 , 90 L.Ed. 1489 (1946).

. Callanan v. United States, 364 U.S. at 593 94, 81 S.Ct. 321 .

. Haldeman v. Martin, 10 Pa. 369, 372 (1849).

. Franklin Union v. The People, 220 Ill. 355, 376-77 , 77 N.E. 176, 184 (1906).

. Hopkins v. Oxley Stave Co., 83 F. 912, 920 (8th Cir. 1897); see also Arthur v. Oakes, 63 F. 310, 322 (7th Cir. 1894).

. Plaintiff’s Requested Jury Instructions tied the conspiracy interrogatory to the torts. The trial court read to the jury almost verbatim the principal instruction plaintiff requested on this count:

57. If you find that defendant ABC sought to acquire Franklin Music’s business and in order to acquire that business agreed with Mr. Franklin that Mr. Franklin should violate his duties as an officer and director of Franklin Music, or that Mr. Franklin should interfere with the relationship between Franklin Music and its key employees or Mr. Franklin should misappropriate ABC’s trade secrets, then you may find in favor of the plaintiff on count 5. Tr. 3524.

. Tr. 3145-46.

. The following appears in the colloquy between counsel and the court on the form of the interrogatories:

THE COURT: . ' . If they answer yes, to the three prior questions [the substantive tort interrogatories] then it is immaterial to you, isn’t it?

MR. MARION: I think frankly speaking, yes. (Tr. 3157)

. See Cernuto, Inc. v. United Cabinet Corp., 595 F.2d 164, 166-168 (3d Cir. 1979).

. United States v. Northern Pacific Ry., 356 U.S. 1, 5 , 78 S.Ct. 514 , 2 L.Ed.2d 545 (1958); United States v. Container Corp., 393 U.S. 333, 341 , 89 S.Ct. 510 , 21 L.Ed.2d 526 (1969) (Marshall, J., dissenting).

. United States v. Topco Associates, Inc., 405 U.S. 596, 607 , 92 S.Ct. 1126 , 31 L.Ed.2d 515 (1972).

. In Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36 , 97 S.Ct. 2549 , 53 L.Ed.2d 568 (1977), the Court retreated from its perse characterization of vertical customer and territorial restrictions made ten years earlier in United States v. Arnold, Schwinn & Co., 388 U.S. 365 , 87 S.Ct. 1856 , 18 L.Ed.2d 1249 (1967).

. L. Sullivan, Antitrust § 71, at 194 (1977).

. Id. at 194-95.

. P. Areeda & D. Turner, III Antitrust Law 828b. at 322 323 (1978).

. In the remaining case cited, Van Dyke Ford, Inc. v. Ford Motor Co., 399 F.Supp. 277, 282 (E.D.Wis.1975), the court refused to dismiss the antitrust claim because it charged that the effeet of the conspiracy was to foreclose competition, patently consistent with the rule of reason treatment.

. See Fashion Originators Guild of America v. FTC, 312 U.S. 457, 468 , 61 S.Ct. 703 , 85 L.Ed. 949 (1941); see also Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225 , 84 S.Ct. 784 , 11 L.Ed.2d 661 (1964) (clash between federal patent law and state unfair competition law).

. The witness testified to the following allocation of the loss:

During the months of February, March and April of 1974, we received back from our suppliers a substantial number of ads, marked “returned to account”. Money for this ad was not authorized. Listed below are the companies involved and an estimate of the dollars, Columbia $7,000; Schwartz Brothers $2,000; WEA $6,000; UDC which is now Phono Disc, $3,000; CHIPS $2,000; Capitol $2,500; MCA $2,000; Universal $500; and ABC $9[,000],

If the $9,000 attributable to ABC is subtracted, these sums total $25,000.