The opinion of the court was delivered by: DUMBAULD
From depositions and statements of counsel at the argument the facts regarding the dealings of the parties are clear and uncontradicted. The question is whether as a matter of law they constitute a contract.
In the first place it is conceded that this is not an industry where the principle of 'no contract, no work' applies. It is customary for members of this union to continue work during negotiations for a new contract.
The strike occurred on August 8, 1961, when a driver refused to deliver a load without a helper, and the carrier treated this refusal as a resignation. On January 13, 1962, the carrier permanently closed its Pittsburgh terminal.
The contract previously in force expired at the end of May 31, 1961. Other carriers in the Pittsburgh area entered into a new contract effective June 1, 1961, negotiated between Teamsters Joint Council No. 40 (for and on behalf of Local 249 and eleven other locals) and a trade association of carriers, Western Pennsylvania Motor Carriers Association. But plaintiff before the negotiation of that contract (to wit on January 19, 1961, effective February 10, 1961) had withdrawn from the association and become an 'independent'.
Plaintiff was given a copy of a preliminary print of that contract (Ex. 47) and told that 'independents' would have to accept the same terms. This draft contained a statement reserving to the Local Unions the right to bring up other matters for negotiation.
Moreover, plaintiff was also distinctly informed by Local 249 that before the union would enter into a contract there were certain matters that would have to be settled. These were controversies relating to the use of helpers, money allegedly due for helpers not used, and an issue regarding an employee named Tylenda and several other matters involving disciplinary action.
Plaintiff contends that those matters were resolved on or about June 15, 1961, when an existing work stoppage which had begun on May 31, 1961 ceased, and work resumed.
Plaintiff contends that no later than that date there became operative a contract, by virtue of a telegram which plaintiff had sent to Local 249 at 7:07 P.M. on June 1, 1961 reading as follows:
'This is notice that Roadway Express Inc Pittsburgh Pa accepts the terms of the new labor contract as negotiated by the Western Pennsylvania Motor Carriers Assn. to be come effective June 1 1961.'
Did this unilateral acceptance by plaintiff of the terms of a contract which was res inter alios acta create, either when sent and received or when other issues in dispute had been settled, a contract between plaintiff and Local 249?
No formally executed written and signed contract has ever been entered into between plaintiff and Local 249.
We conclude that no contract existed. A contract requires the assent of both parties. It is clear that the Union did not consider that it would consider itself bound until a Memorandum of Understanding was signed. Moreover, negotiations on disputed issues continued after June 15, 1961, (and indeed into 1962) without reaching agreement.
In support of our conclusion we may avouch the general principles of contract law, requiring mutual assent to establish the existence of a contract. Williston on Contracts, § 28A; Whitemarsh Tp. Authority v. ...