No. 349 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Civil Division, of Lancaster County, No. 266 September Term, 1980.
James L. Martin, appellant, in pro. per.
Joseph F. Roda, Lancaster, for appellee.
Wickersham, McEwen and Wieand, JJ.
[ 304 Pa. Super. Page 427]
This appeal was taken from an order sustaining preliminary objections in the nature of a demurrer to appellant's pro se complaint in assumpsit. The trial court held that a contract had not been made and that there could be no recovery on quantum meruit where appellant had volunteered information which enabled appellee, a publisher of books, to effect a recovery against a third person for copyright infringement. We agree and, accordingly, affirm.
[ 304 Pa. Super. Page 428]
The averments of the complaint*fn1 disclose that on September 28, 1976, the appellant, James L. Martin, directed a letter to Bantam Books, Inc. in which he advised the addressee that portions of a paperback publication entitled "How to Buy Stocks" had been plagiarized by the authors of a later book entitled "Planning Your Financial Future." Appellant's letter offered to provide a copy of the book, in which appellant had highlighted the plagiarized passages, with marginal references to the pages and paragraphs of the book from which the passages had been copied. By letter dated October 21, 1976 and signed by Robin Paris, Editorial Assistant, the appellee, Little, Brown and Company, Inc., invited appellant to send his copy of "Planning Your Financial Future." This was done, and appellee acknowledged receipt thereof in writing. Thereafter, appellant made inquiries about appellee's investigation but received no response. Appellant was persistent, however, and upon learning that appellee had agreed with his assertions and was pursuing a claim of copyright infringement, he demanded compensation for his services. Appellee denied that it had contracted with appellant or was otherwise obligated to compensate appellant for his work or for his calling the infringement to the publisher's attention. Nevertheless, appellee offered an honorarium in the form of a check for two hundred dollars, which appellant retained but did not cash. Instead, he filed suit to recover one-third of the recovery effected by appellee.
These facts and all reasonable inferences therefrom have been admitted by appellee's demurrer. Gekas v. Shapp, 469 Pa. 1, 5, 364 A.2d 691, 693 (1976); Buchanan v. Brentwood Federal Savings & Loan Association, 457 Pa. 135, 139, 320 A.2d 117, 120 (1974). In determining whether they
[ 304 Pa. Super. Page 429]
are sufficient to state a cause of action we are guided by the rule that a demurrer may be sustained only in clear cases, and all doubts must be resolved in favor of the sufficiency of the complaint. Gekas v. Shapp, supra, 469 Pa. at 6, 364 A.2d at 693; Clevenstein v. Rizzuto, 439 Pa. 397, 401, 266 A.2d 623, 625 (1970).
The facts alleged in the complaint are insufficient to establish a contractual relationship between appellant and appellee. Appellant's initial letter did not expressly or by implication suggest a desire to negotiate. Neither did appellee's letter of October 21, 1976, which invited appellant to send his copy of the offending publication, constitute an offer to enter a unilateral contract. It was no more than a response to an initial letter by appellant in which he notified appellee of a copyright infringement and expressed a willingness to forward a copy of the infringing work in which he had highlighted copied portions and cited pages of appellee's work which had been copied. Appellant's letter did not suggest that he intended to be paid, and appellee's response did not contain an offer to pay appellant if he forwarded his copy of the infringing work. In brief, payment to appellant was not discussed in any of the correspondence which preceded the forwarding of appellant's work to appellee.
"A contract, implied in fact, is an actual contract which arises where the parties agree upon the obligations to be incurred, but their intention, instead of being expressed in words, is inferred from their acts in the light of the surrounding circumstances. Cameron v. Eynon, 332 Pa. 529, 3 A.2d 423 (1939)." Home Protection Building & Loan Association Case, 143 Pa. Super. 96, 98, 17 A.2d 755, 756 (1941). An implied contract is an agreement which legitimately can be inferred from the intention of the parties as evidenced by the circumstances and "the ordinary course of dealing and the common understanding of men." Hertzog v. Hertzog, 29 Pa. 465, 468 (1857). "Generally, there is an ...