Nos. 501 & 523 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas of Bucks County, No. 82-0956-09-5.
Phillip A. Proger, Washington, D. C., and Stephen Wales Armstrong, Philadelphia, for appellant (at No. 501) and for appellee (at No. 523).
Gregory M. Harvey, Philadelphia, for Courier, et al., appellees.
Samuel E. Klein, Philadelphia, for Philadelphia Newspapers, appellant (at No. 523) and for appellee (at No. 501).
Wickersham, Cirillo and Lipez, JJ.
[ 300 Pa. Super. Page 42]
This appeal is from an order granting a preliminary injunction,*fn1 which decrees that, pending the outcome of the three plaintiff newspapers' request for a permanent injunction, defendant United Feature Syndicate, Inc. (United) must specifically perform an alleged one-year oral contract permitting the plaintiff newspapers to publish the popular comic strip, "Peanuts." Separate appeals were filed by United and by defendant Philadelphia Newspapers, Inc. (the Inquirer),*fn2 which claimed it had exclusive rights to "Peanuts" on the basis of a written contract with United. The
[ 300 Pa. Super. Page 43]
two appeals were consolidated,*fn3 and expedited argument*fn4 was held before this panel on March 10, 1982.*fn5 We affirm.
The findings of the chancellor, Judge William Hart Rufe, III, provide an excellent summary of the pertinent facts:
1. Plaintiff, Courier Times, Inc. is a daily and Sunday newspaper with a daily circulation as of January 27, 1982 of approximately 65,000 located primarily in the area of lower Bucks County.
2. Plaintiff, Calkins Newspapers, Incorporated, publishes the Doylestown Daily Intelligencer, a daily and Sunday newspaper with a daily circulation as of January 27, 1982 of approximately 28,000 located primarily in the area of central Bucks County.
3. Plaintiff, Burlington Times, Inc. is a daily and Sunday newspaper with a daily circulation as of January 27, 1982 of approximately 42,000 located primarily in the area of Willingboro and Burlington County, New Jersey.
4. John J. Carroll is the "Senior Vice President-Sales" for United, having been employed by United for over forty years. He worked as a salesman for United until 1972, when he became Sales Manager, which position he retained until 1979 when he was elevated to Senior Vice President-Sales. Only the president of United, one Robert Metz, is higher in the corporate structure of United than Mr. Carroll. There are also two Vice Presidents of United: David Hendin, Vice President-Editorial Director; and Sid Goldberg, Vice President-Managing Editor and Comics Editor.
5. As Senior Vice President-Sales, Mr. Carroll's duties included calling on major newspapers across the country, such as the two Philadelphia papers, the Inquirer and Bulletin, the Chicago Tribune, the Chicago Sun Times, The San Francisco Chronicle, the San Francisco Examiner and the San Jose Mercury. In October, 1981 his territory was reduced to the states of New Jersey and Pennsylvania. No
[ 300 Pa. Super. Page 44]
reason was given for this reduction, but we note Mr. Carroll lives in Edison, New Jersey, and he is approximately 64 years of age.
6. As Senior Vice President-Sales for United, Mr. Carroll also represented United at many trade shows and industry conventions across the country and served as United's representative to the Comics Council, a national organization of syndicate representatives and editors responsible for comics. We accept as completely credible, and find as fact, Mr. Carroll's own self-assessment that he is one of the most experienced persons in this line of work in the entire United States.
7. As Sales Manager and as Senior Vice President-Sales, Mr. Carroll signed many contracts on behalf of United. Exhibits P-16 through P-23. Mr. Carroll testified that he does not presently have authority to sign contracts for United. However, he also testified that Mr. Metz instructed him on January 29, 1982 not to participate any further in the sale of "Peanuts" in the Philadelphia market. There is no other evidence whatsoever of any limitation on Mr. Carroll's authority representing United. Therefore, we find as fact that Mr. Carroll did have actual authority to represent and contractually bind United as of January 27, 1982 and any limitation on that authority, if any, did not exist prior to January 29, 1982.
8. No notice of any kind, written or otherwise, was ever transmitted or communicated to any of the clients or customers of United giving notice of any limitation in Mr. Carroll's authority. Mr. Carroll, in his forty years with United, never made a contract or agreement with a client or customer of United that was not accepted, approved and honored by United. Mr. Carroll knew and dealt with Mr. Sandy Oppenheimer, editor of the Courier, for twenty years, made agreements for publishing United features and comics in the Courier, and signed contracts confirming such agreements during that period. No notice of any limitation of Mr. Carroll's authority to act on behalf of United was ever transmitted or communicated to Mr. Oppenheimer. We find
[ 300 Pa. Super. Page 45]
that Mr. Carroll had apparent authority, as well as actual authority to represent and contractually bind United on January 27, 1982.
9. Mr. Carroll and Mr. David Hendin, Vice President-Editorial Director for United, both testified to the procedure by which agreements are made between United and a newspaper publisher. When a United salesman and the newspaper publisher agree on the terms of the sale of a feature or comic the salesman calls New York immediately for approval. Assuming immediate approval, which apparently is the usual situation, the clerical staff is instructed to prepare written contracts forthwith, and if the salesman has the reproduction proofs with him as samples, he may leave them with the editor at that time. The editorial department of United immediately initiates the forwarding of continuing reproduction proofs to the newspaper. The written contracts are then forwarded to the newspaper for execution, and upon return are executed by United, whereupon one copy thereof is returned to the newspaper. This contract signing process may take a number of weeks during which time the newspaper will continue publishing the contracted for feature, invoices will be sent out by United, and payment made thereon, all based on the initial oral agreement. Occasionally, a newspaper will fail to return the executed contract, whereupon United eventually discontinues sending the reproduction proofs, and submits bills for all proofs previously sent but unpaid. Neither United employee testified to a single instance in which United failed to complete an executed contract returned to it by a newspaper, prior to the present case. Mr. Gary Andrews, managing editor of the Quakertown Free Press, another United customer, confirmed this procedure and testified that his newspaper was presently carrying four United features, one pursuant to a written contract and the other three pursuant to the initial oral agreement, although he anticipated receiving the written contracts for his execution eventually. We find as fact that contracts for the sale of features, cartoons and comics by United are initiated as oral contracts subsequently confirmed by written contracts.
[ 300 Pa. Super. Page 4610]
. The written form of agreement used by United contains eight numbered paragraphs. The first three, entitled "1. Service", "2. Rate", and "3. Term", all embody the provisions agreed upon by the newspaper and the United representative at the time of the initial oral agreement, and are the only provisions binding United beneficially to the newspaper. The remaining five paragraphs, entitled, "4. Use", "5. Performance", "6. Assignment", "7. Default", and "8. Miscellaneous", all relate to ...