Tose v. First Pennsylvania Bank, N.A., 80-2123

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore ALDISERT and HIGGINBOTHAM, Circuit Judges, and MARKEY; ALDISERT
Citation648 F.2d 879
Parties1981-1 Trade Cases 63,985 TOSE, Leonard H., Philadelphia Eagles Football Club, Tose, Inc., Appellants in, v. FIRST PENNSYLVANIA BANK, N.A.; Bunting, John R.; Pemberton, John C.; Barness, Herbert; Forstater, Sidney; Provident National Bank, Chase Manhattan Bank, N.C., Girard Bank, Philadelphia National Bank, and Firestone, John D. TOSE, Leonard H., Philadelphia Eagles Football Club, Tose, Inc., v. FIRST PENNSYLVANIA BANK, N.A.; Bunting, John R.; Pemberton, John C.; Barness, Herbert; Forstater, Sidney; Provident National Bank, Chase Manhattan Bank, N.C., Girard Bank, Philadelphia National Bank, and Firestone, John D. Appeal of Sidney FORSTATER in
Docket NumberNo. 80-2123,No. 80-2334,80-2334,Nos. 80-2123,80-2123,s. 80-2123
Decision Date27 May 1981

Page 879

648 F.2d 879
1981-1 Trade Cases 63,985
TOSE, Leonard H., Philadelphia Eagles Football Club, Tose,
Inc., Appellants in No. 80-2123,
v.
FIRST PENNSYLVANIA BANK, N.A.; Bunting, John R.; Pemberton,
John C.; Barness, Herbert; Forstater, Sidney; Provident
National Bank, Chase Manhattan Bank, N.C., Girard Bank,
Philadelphia National Bank, and Firestone, John D.
TOSE, Leonard H., Philadelphia Eagles Football Club, Tose, Inc.,
v.
FIRST PENNSYLVANIA BANK, N.A.; Bunting, John R.; Pemberton,
John C.; Barness, Herbert; Forstater, Sidney; Provident
National Bank, Chase Manhattan Bank, N.C., Girard Bank,
Philadelphia National Bank, and Firestone, John D.
Appeal of Sidney FORSTATER in No. 80-2334.
Nos. 80-2123, 80-2334.
United States Court of Appeals,
Third Circuit.
Argued March 19, 1981.
Decided April 30, 1981.
Rehearing and Rehearing In Banc Denied May 27, 1981.

Page 881

Joseph L. Alioto (argued), Alioto & Alioto, San Francisco, Cal., Susan T. Fletcher (argued), West Chester, Pa., Gerald F. Tietz, Arthur L. Pressman, Abraham, Pressman, Tietz & Seidman, P.C., Philadelphia, Pa., for appellants.

John M. Elliott (argued), Stephen L. Friedman, Thomas J. Elliott, Henry F. Siedzikowski, Dilworth, Paxson, Kalish & Levy, Philadelphia, Pa., for appellee John R. Bunting.

Tom P. Monteverde (argued), Jean C. Hemphill, Monteverde, Hemphill & Maschmeyer, Philadelphia, Pa., for appellees First Pennsylvania Bank, N.A. and John C. Pemberton.

Thomas B. Rutter (argued), Thomas B. Rutter, Ltd., Philadelphia, Pa., for appellee Sidney Forstater.

Tyson W. Coughlin (argued), Michael L. Lehr, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for appellee Provident Nat. Bank.

Patrick T. Ryan (argued), Kathleen M. Lynch, Drinker Biddle & Reath, Philadelphia, Pa., Edward J. Reilly, Peter A. Copeland, Milbank, Tweed, Hadley & McCloy, New York City, for appellee Chase Manhattan Bank, N.A.

Arthur E. Newbold, IV (argued), Jean Wegman Burns, Dechert, Price & Rhoads, Philadelphia, Pa., for appellee Girard Bank.

Benjamin W. Quigg, Jr. (argued), James J. Rodgers, Morgan, Lewis & Bockius, Philadelphia, Pa., for appellee Philadelphia National Bank.

Before ALDISERT and HIGGINBOTHAM, Circuit Judges, and MARKEY, Chief Judge. *

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The major question for decision is whether the district court erred in granting summary judgments and directed verdicts in favor of a number of institutional and individual defendants against whom antitrust and other claims had been brought by Leonard Tose, Tose, Inc., and the Philadelphia Eagles Football Club. We also consider issues arising from contractual counterclaims filed by an individual defendant. We find no error in the district court's disposition, and therefore we will affirm.

I.

Appellants filed suit in the district court on May 5, 1978, against appellees First Pennsylvania Bank (FPB), John Bunting, John Pemberton, Sidney Forstater, and Provident, Chase, Girard, and Philadelphia National banks, and against Herbert Barness and John Firestone. An amended complaint was filed by leave of the court on July 2, 1979, setting forth four distinct claims for relief against various defendants: count one, a conspiracy in restraint of trade in violation of § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, designed to "force Tose to sacrifice his controlling interest in the Eagles at a price substantially below its true market value," 1 App. 30, and implemented in part by a "banking boycott" against appellants, id. 29; count two, a violation by FPB, Bunting, and Pemberton (collectively, FPB appellees) of the Bank Holding Company Act Amendments of 1970, 12 U.S.C. § 1972(3) (now § 1972(1)(C)); count three, malicious interference and conspiracy to interfere with appellants' advantageous contractual relations and business prospects, causing Tose to suffer severe

Page 882

emotional distress, in violation of Pennsylvania common law; and count four, a "conspiracy to fix interest rates in the four counties of Philadelphia, Bucks, Delaware and Montgomery," Pennsylvania, in violation of § 1 of the Sherman Act. 1 1 App. 34. Appellants reached an amicable resolution of their disputes with Barness and Firestone before trial. Both limited partners sold their Eagles interests to Tose and the action against them was dismissed by stipulation.

On May 16 and 28, 1980, the district court ruled on cross motions for summary judgment, Tose v. First Pennsylvania Bank, 492 F.Supp. 246 (E.D.Pa.1980), denying appellants' motion for judgment on count four and entering judgment in favor of all appellees on that claim. It also entered judgment in favor of the FPB appellees on count two, the Bank Holding Company Act claim, and in favor of appellees Chase and Girard on all claims asserted against them.

Trial on the remaining claims commenced before a jury on June 2, 1980. Appellants presented evidence for fifteen days. At the conclusion of appellants' case in chief the remaining defendants moved for directed verdicts on all counts pursuant to Fed.R.Civ.P. 50. The trial court granted those motions on June 30.

Trial then commenced on a four-count counterclaim filed by appellee Forstater. (Forstater has filed a cross appeal in this court. To avoid confusion, we refer to Forstater as an appellee throughout this opinion, and to Tose, the Eagles, and Tose, Inc. as appellants.) The jury returned a verdict in favor of Forstater on one of the four counts, assessing damages of $69,000 against Tose and the Eagles, and in favor of appellants on all other counts. The district court entered a judgment in accordance with the verdict and subsequently denied Forstater's motions for judgment n.o.v. or a new trial. 2

Appellants now argue that the district court erred in granting summary judgments and directed verdicts on the antitrust, Bank Holding Company Act, and pendent claims. Appellants also seek to overturn Forstater's $69,000 judgment, asserting that the court abused its discretion by excluding certain evidence and erred in its instructions to the jury. Forstater cross appeals from the denial of his motion for judgment n.o.v. or a new trial on another count of the counterclaim, arguing that he is entitled to judgment as a matter of law under the Pennsylvania Uniform Written Obligations Act, Pa.Stat.Ann. tit. 33, § 6 (Purdon 1967), and alternatively that there was insufficient evidence to sustain the

Page 883

jury's finding that Tose did not knowingly sign the writing in question.

II.

We review grants of summary judgment and directed verdicts for legal error, testing the record by the same standards as the district court. On summary judgment, we inquire whether the court correctly concluded "that there (was) no genuine issue as to any material fact and that the moving party (was) entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). On review of a directed verdict, we "consider the record as a whole and in the light most favorable to the non-moving party, drawing all reasonable inferences to support its contentions. If no reasonable resolution of the conflicting evidence and inferences therefrom could result in a judgment for the non-moving party," we must affirm. Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 115 (3d Cir. 1980), petition for cert. filed, 49 U.S.L.W. 3684 (U.S. Feb. 26, 1981) (No. 80-1458); see Columbia Metal Culvert Co., Inc. v. Kaiser Aluminum & Chemical Corp., 579 F.2d 20, 25 (3d Cir.), cert. denied, 439 U.S. 876, 99 S.Ct. 214, 58 L.Ed.2d 190 (1978); Patzig v. O'Neil, 577 F.2d 841, 846 (3d Cir. 1978). We recognize, of course, that "summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). On the other hand,

(w)hile we recognize the importance of preserving litigants' rights to a trial on their claims, we are not prepared to extend those rights to the point of requiring that anyone who files an antitrust complaint setting forth a valid cause of action be entitled to a full-dress trial notwithstanding the absence of any significant probative evidence tending to support the complaint.

First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968).

III.

Our narrative of the facts is based on the entire record, viewed in the light most favorable to appellants. Because the answers to the legal issues presented by this appeal depend on the factual predicate, it is necessary to set forth a lengthy narrative.

A.

Tose purchased the Eagles football club in 1969, using $1.5 million of his own funds, $10.5 million borrowed from appellee FPB, and $4 million contributed by other investors, including Barness and Firestone. He acquired the Eagles' assets in his own name and then transferred them to a limited partnership of which he was general partner. In 1972 Tose borrowed another.$2.7 million from FPB to buy out some of his limited partners. The Eagles Partnership defaulted on an amortization payment of $750,000 due FPB in 1974, and the loan agreement was amended in 1975 to adjust the amortization schedule and to limit Tose to a $60,000 annual salary in unprofitable years. At the end of 1975 the Eagles Partnership consisted of Tose, the sole general partner, with approximately a 60% interest; Barness, 29%; Firestone, 5%; and another limited partner with about 6%. Tose and Barness agreed in June, 1976, to give each other the right of first refusal should either decide to sell his interest in the Eagles.

Relations among the partners became strained in 1976. Barness began openly criticizing Tose's management of the Eagles and demanded access to the club's financial records. Barness wrote to Tose in September, 1976, accusing him of "tak(ing)...

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179 cases
  • Fredericks v. C.I.R., No. 96-7748
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