No 197 Pittsburgh 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. 3388 July Term, 1974.
William B. Mallin, Willis A. Siegfried, Jr. and Robert L. Byer, Pittsburgh, and Curtis H. Barnette and David M. Beckwith, Bethlehem, for appellant.
Bruce W. Kauffman, Carl H. Hanzelik, Jonathan O. Natelson, and Paul S. Diamond, Dillworth, Paxson, Kalish and Kauffman, Philadelphia, for appellees.
Cercone, President Judge, and Hester, Cavanaugh, Wickersham, Rowley Wieand and Hoffman, JJ. Hester, J., files a dissenting opinion in which Rowley and Wieand, JJ., joined.
[ 321 Pa. Super. Page 359]
The central issue in this case is whether a certain written option agreement is a contract. The matter was contested in a bifurcated non-jury trial and, by consent of both parties, liability alone was at issue. The trial judge, Honorable Maurice Louik entered an adjudication in which he held that the plaintiff-appellant had not sustained its burden of proving that the parties intended to be contractually bound. Exceptions to the trial court's adjudication were argued before a court en banc comprised of the Honorable Judge Louik, Judge Nicholas P. Papadakos and the Honorable Joseph A. Del Sole which court en banc dismissed the exceptions of plaintiff-appellant and affirmed the adjudication of Judge Louik. This appeal followed. We agree with the conclusion reached by Judge Louik and the court en banc and we affirm.*fn1
On June 19, 1974 Bethlehem Steel Corporation, plaintiff-appellant filed a complaint in assumpsit against Litton
[ 321 Pa. Super. Page 360]
Industries Inc. and Erie Marine, Inc., a division of Litton Industries, trading as Erie Marine division of Litton Industries, hereinafter Litton, appellee.
Basically the complaint alleged that on or about April 25, 1968 Litton entered into an agreement with Bethlehem whereby Litton would construct and deliver and Bethlehem would purchase a one thousand foot self-unloading ore vessel. The vessel constructed under that agreement was delivered, accepted, and the price paid therefor.
The complaint further alleged that Litton extended to Bethlehem by letter dated April 25, 1968 "a written offer good until December 31, 1968 for the entry into an option agreement for five vessels." Furthermore, it was alleged that on or about December 31, 1968 Bethlehem accepted the Litton's offer to enter into an option agreement under which Bethlehem was granted the right for a period of five years after the execution of the option agreement to obtain from Litton from one to five vessels for prices varying between $22,400,000.00 and $18,400,000.00 each. Further, the complaint alleged that Bethlehem, pursuant to the option agreement, by letter dated November 16, 1973 exercised its option for two vessels and thereby ordered the first and second vessels in accordance with the option agreement. On December 26, 1973 Bethlehem, pursuant to the option agreement, exercised its option for an additional (third) vessel.
Finally, the complaint alleged that Litton expressly and unequivocally refused to perform in accordance with its obligations under the option agreement; that Litton demanded the payment of a price for each vessel many millions of dollars in excess of the price provided for in the option agreement and indicated delivery dates substantially later than the delivery provided in the option agreement. Damages were sought in a sum in excess of $95,000,000.00 together with interest and costs. On March 8, 1976, the case was designated as complex and was assigned to the Honorable Maurice Louik for all further proceedings.
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In its defense, Litton responded, inter alia: (1) PX-1 (the letter of December 31, 1968) was never intended to be and was not a contract; (2) no contract was formed in any event because the vital terms left for later negotiation could not be filled by the court on a reasonably certain basis; (3) any purported "option agreement" had been rejected prior to exercise by Bethlehem's assertions that it would "never" order another vessel from Litton; (4) since an "option" unsupported by consideration is revocable at will, any purported "option agreement" had been revoked prior to exercise by Litton's notice to Bethlehem that the Erie shipyard was to be closed; (5) any purported "option" had never been properly exercised; and (6) Litton had never breached or repudiated any "agreement" which might have existed.
On June 28, 1978 a non-jury trial began and Judge Louik filed his adjudication on June 6, 1979 which provided, in part, as follows:
"After a protracted trial of approximately nine months with over 12,000 pages of testimony and some 500 exhibits, this matter is now before the Court for determination. The claim in excess of 95 million dollars, together with a counterclaim, is based on a two-page letter between two giant corporations. The Court has bifurcated the trial as to liability and damages. The issue before the Court presently is that of liability. Although the matter proceeded during such a lengthy period of time, the facts may be succinctly stated as follows.
"For background purposes, it should be noted that on April 25, 1968, at a formal signing ceremony, the plaintiff and defendant entered into a ship-construction contract for a newly designed 1,000 foot self unloading ore vessel. This vessel, known as Hull 101, was commissioned "The Cort". In the contract for the Cort, the plaintiff was given the right of first refusal in connection with any possible future construction of such vessels. In addition, a two-ship option
[ 321 Pa. Super. Page 362]
agreement was executed on the same day. Although these items are not an issue in this case, the relevancy and effect of the provisions of the right of first refusal and the two-ship option agreement in the instant claim will be the subject of discussion later.
"In addition, there is in evidence as PX-4 a document which was executed on that very same day, April 25, 1968, together with a document dated December 31, 1968, in evidence as PX-1. These are the documents in issue in the instant case.
"The primary and fundamental question now before the Court is whether or not there has been an option contract. The plaintiff's claim is based upon the following two-page letter:
Bethlehem Steel Corporation
Reference is made to the ship construction contract signed by our companies this date for the construction by us of a 1,000' self-unloading ore vessel for you. Reference is also made to my letter to you of this date extending to you an option to purchase either one or two additional vessels upon the terms therein set forth.
We hereby extend to you an offer to enter into an option agreement to have us construct for you from one to five additional vessels in accordance with "Specifications covering the Construction of a Self-Unloading Bulk Carrier for Bethlehem Steel Corporation" (Number Y 917) dated March 1968, addendum number 1 thereto dated March 28, 1968 and addendum number 2 thereto dated April 17, 1968. This
[ 321 Pa. Super. Page 363]
offer to enter into an option agreement shall be firm and irrevocable until December 31, 1968 at 5:00 P.M. E.S.T.
The terms of the option agreement are to be as follows:
(a) The specifications for the vessels shall be the specifications referred to above, except for mutually agreeable reduced test schedules of the vessels, if the testing of the vessel to be delivered under the contract executed this date proves successful.
(b) Bethlehem to have the right at any time within five years after the effective date of the option agreement to order from one to not more than a total of five vessels, for delivery within 24 months from the date of the order for the first vessel ordered and for delivery within 24 months plus 4 months for each additional vessel ordered within any one calendar year; provided however no vessel shall be scheduled for delivery between November 31 and March 31.
(c) The price of the vessel shall be as follows:
1st vessel ordered $22,400,000.00
2nd vessel ordered $21,400,000.00
3rd vessel ordered $20,400,000.00
4th vessel ordered $19,400,000.00
5th vessel ordered $18,400,000.00
(d) The vessel prices are subject to escalation for both labor and material for a base price of $20,400,000.00 for each vessel and based upon Fourth Quarter 1968 mutually agreed upon index such as:
Material -- Material index for Bureau of Ships steel vessel contracts" furnished to the Naval Ship Systems Command by the Bureau of Labor Statistics of the U.S. Department of Labor.
Labor -- 'Index of changes in straight-time average hourly earnings for selected shipyards' (June 1962 = 100) for steel ship construction, furnished to the Naval Ship Systems Command by the Bureau of Labor Statistics of the U.S. Department of Labor.
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At the time of exercise of the option for any vessel, the escalation shall be computed to the date of contract execution, and an appropriate contract clause will be included therein providing for quarterly escalation thereafter. We will furnish you the labor and material percentages subject to escalation by May 15, 1968.
(e) The terms and conditions of the ship construction contracts to be in accordance with the attached terms and conditions and any other mutually agreed to terms and conditions and shall contain a clause giving to Bethlehem the right to cancel at any time upon the payment of all of our costs incurred to date of cancellation, including similar vendor and subcontractor cancellation charges, plus 15% of such costs.
"In response to this letter, a letter dated December 31, 1968 was sent by Bethlehem to Erie which stated in part 'We hereby accept your offer of an option to have you construct for us from one to five additional vessels . . .' In all other respects, the letter of December 31, 1968 is merely identical repetition of the language in the letter of April 25, 1968. This letter of December 31, 1968 appears in the record as PX-1.
"On November 16, 1973, plaintiff sent a letter to defendant stating that it exercises its option to order two vessels and then on December 26, 1973, plaintiff sent another letter to defendant stating that it exercises its option to order a third vessel. These letters appear in the record as PX-7 and PX-9, respectively.
"Defendant did not enter into any ship construction contract with plaintiff and did not construct any vessels under the letters of November 16, 1973 and December 26, 1973.
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" The issue then is whether these letters, considered with the surrounding circumstances, constitute a contract. The plaintiff's position is that they do constitute a contract, both under general common law and under the Page 365} Uniform Commercial Code. The defendants' basic position is that under neither the general common law nor the Uniform Commercial Code do these letters constitute a contract, but at most, are merely an agreement to agree.
"1. Bethlehem has not sustained its burden of proof, either in law or in fact, of imposing liability on Litton-Erie, and a finding accordingly will be entered in favor of Litton-Erie on Bethlehem's claim.
"2. Litton-Erie has not sustained its burden of proof imposing liability on Bethlehem in its counterclaim, and a finding accordingly will be entered in favor of Bethlehem on the counterclaim of Litton-Erie."
Appendix B, Appellant's Brief on reargument at B-1 and B-42. (emphasis added)
It is quite clear that the scope of appellate review of a finding on contractual intent is limited -- indeed narrowly circumscribed.
The "intent to contract" is a question of fact for the trier-of-fact. A recent example is Field v. Golden Triangle Broadcasting Company, Inc., 451 Pa. 410, 305 A.2d 689 (1973), cert. den., 414 U.S. 1158, 94 S.Ct. 916, 39 L.Ed.2d 110 (1974), where the Pennsylvania Supreme Court held:
Initially, we note that when the evidence is conflicting as to whether the parties intended that a particular writing would constitute a complete expression of their agreement it has been held that it is a question of fact for the trier of fact to determine whether a contract exists.
451 Pa. at 414, 305 A.2d at 691. In Yellow Run Coal Co. v. Alma-Elly-Yv Mines, 285 Pa. Super. 84, 426 A.2d 1152 (1981), this Court, Spaeth, J., held (citing Field, supra):
When the evidence is in conflict as to whether the parties intended that a particular writing should constitute an
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enforcible contract, it is a question of fact whether a contract exists.
285 Pa. Super. at 87, 426 A.2d at 1154.
In Hatalowich v. Redevelopment Authority of Monessen, 454 Pa. 481, 312 A.2d 22 (1973), our Supreme Court held:
Liminally, it must be emphasized that the scope of our review here is narrowly circumscribed. It is well settled that the chancellor's findings of fact approved by the court en banc have the effect of a jury verdict and will not be disturbed on appeal if supported by competent evidence. While we are always free, and indeed are duty bound, to modify erroneous applications of law, when, as in the instant case, determination of the parties' intent is crucial, the chancellor's factual conclusions, if supported by competent evidence, will not be overturned.
454 Pa. at 484, 312 A.2d at 23. In Goldman v. McShain, 432 Pa. 61, 247 A.2d 455 (1968) where the supreme court reversed a summary judgment and remanded for trial on the issue of contractual intent, Mr. Justice (now Chief Justice) Roberts held:
We have no doubt that had the chancellor permitted the parties to go to trial and had then, upon hearing all testimony, concluded as a finding of fact that Goldman and McShain did not intend the March agreement to be an enforceable contract, this Court would not have disturbed such a finding assuming there was competent evidence below and the court did not abuse its discretion.
432 Pa. at 68, 247 A.2d at 458. Similarly, in Yellow Run Coal, supra, this Court explicitly held:
When the trier of fact has determined the intention of the parties to an agreement, an appellate court will defer to the findings, so long as they are supported by the evidence.
285 Pa. Super. at 90, 426 A.2d at 1155.
Like our scope of review of the factual finding of contractual intent, the standards pursuant to which an
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appellate court considers a trial record to determine whether factual findings are supported by competent evidence are indisputably well-settled. It is axiomatic that a trial judge's findings of fact, sustained by the Court en banc, have the weight of a jury verdict and cannot be disturbed on appeal if supported by competent evidence in the record. As this Court held in Brenna v. Nationwide Insurance Co., 294 Pa. Super. 564, 440 A.2d 609 (1982);
In our review on this case, we must be mindful that findings of a trial judge in a non-jury case must be accorded the same weight and effect on appeal as the verdict of a jury, and will not be reversed in the absence of an abuse of discretion or a finding of a lack of evidentiary support. The appellate court, in these circumstances, is limited to determinations of whether the trial court's findings are supported by competent evidence and whether the trial court committed an error of law. It is also clear that in reviewing the findings of the trial judge, the victorious party is entitled to have the evidence viewed in the light most favorable to him and all the evidence and proper inferences favorable to the successful party must be taken as true and all unfavorable inferences rejected.
294 Pa. Super. at 567, 440 A.2d at 611. This Court similarly held in Walsh v. Pennsylvania Gas & Water Co., 303 Pa. Super. 52, 449 A.2d 573 (1982), in examining the Record upon review of the findings of a trier-of-fact:
303 Pa. Super. at 58, 449 A.2d at 576.
We have reviewed the entire trial record and viewing the evidence in the light most favorable to the victorious party below, a fair distillation of the evidence would indicate the following scenario.
[ 321 Pa. Super. Page 368]
This controversy arose out of ship construction on the Great Lakes. Litton, a newcomer to the Lakes, tried unsuccessfully through its subsidiary, Erie, to develop a market for a unique and revolutionary supertanker-type ore vessel, 1,000 feet long with novel self-unloading features. In seven years of effort (from 1967 to 1973), however, Litton sold only one ore vessel ("Hull 101") -- to Bethlehem.
In 1968, Litton and Bethlehem exchanged two incomplete letters, one dated April 25, 1968 (PX-4) and the other dated December 31, 1968 (PX-1), concerning an offer to negotiate a long-term option agreement for construction of up to five novel multi-million dollar vessels at Litton's new shipyard. In the words of Judge Louik: "If anything, there is one matter that is absolutely clear, and that is that the writing provides that further agreements between the parties are necessary." (Ad 13). During the ensuing years, Litton repeatedly attempted to interest Bethlehem in commencing the negotiations contemplated. These efforts were in vain, however, and from late 1972 through early 1973 Litton repeatedly informed Bethlehem of its intention to close the Erie shipyard unless ship construction orders were immediately forthcoming. When Bethlehem disclaimed interest in purchasing any additional ships and no other contracts were obtained, Litton began closing its Erie yard and disbanding its workforce.
Thereafter, however, Bethlehem notified Litton that it wished to negotiate a ship construction contract pursuant to PX-1. When the parties were unable to agree on contractual terms, Bethlehem commenced this action, contending that despite the parties' failure to agree upon the myriad terms explicitly left for future negotiations, the mere exchange of the letters in 1968 bound the parties to a "contract" for the construction of novel ships worth millions of dollars.
The April 25, 1968 Letter (PX-4)
After four months of careful negotiation and drafting and redrafting of contract terms, representatives of Litton and Bethlehem met on April 25, 1968 for the ceremonial exchange of a contract for the immediate construction of Hull
[ 321 Pa. Super. Page 369101]
, the only one thousand foot vessel actually sold by Litton, for the firm fixed price of $17,994,138.00 ("Hull 101 Contract"). Bethlehem's Board of Directors had insisted upon "great precision" in every aspect of the sale, especially price. The Hull 101 Contract was fully performed and is not at issue here.
During the two to three hours that the parties were together on April 25, 1968, primarily for the exchange of the Hull 101 contract, they jointly drafted a two-page letter (PX-4), extending a last minute sales promotional offer to negotiate a long-term option agreement for up to five additional Hull 101 type vessels. The parties clearly understood that PX-4 was not part of the consideration for the Hull 101 Contract. With one exception, none of the representatives at the April 25 meeting even was aware before that meeting that such an offer was to be made or drafted that day. On its face, PX-4 clearly was not an option agreement; rather, it expressly provided for future negotiations which, if successfully completed, would have resulted in an option agreement which, in turn, if properly exercised, would have resulted in formal execution of a formal written ship construction contract.
In hurriedly drafting PX-4 during a part of their short meeting on April 25, the parties explicitly agreed that price escalation would be included in any long-term option agreement and ship construction contract upon which they might subsequently agree. The parties further expressly acknowledged, however, that because escalation was so critical and so complex, they would postpone the negotiations necessary for agreement upon that vital subject.
PX-4 thus was jointly drafted during the less than three-hour meeting on April 25 in the form of a two-step offer to enter into a future option agreement in order to provide until the end of the year for the parties to investigate and develop the terms of an appropriate escalation clause and the other important matter intentionally left for future negotiation and agreement.
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Having taken more than four months to negotiate a contract for a single vessel (Hull 101), on which construction was to begin immediately for a fixed price with no escalation, the parties recognized that negotiation of a long-term option agreement for up to five novel multi-million dollar vessels providing for price escalation would be infinitely more complex and time consuming.
On several occasions from May through November of 1968, Litton sought to negotiate the terms of an option agreement. On each occasion, Bethlehem replied that it was not yet willing to spend the time and effort required for such negotiations, since it would not even consider additional 1000 foot ore vessels until the revolutionary Hull 101 had been successfully operated for at least one season.
By December of 1968, aware that the PX-4 offer was about to lapse, but still unwilling to devote the time necessary to negotiate the terms essential for a definitive option agreement and ship construction contract, Bethlehem sought to preserve the status quo.
Between April 25 and December 31, 1968, there were no discussions, negotiations or agreements between the parties with respect to any of the terms, including escalation, expressly left for future negotiation and mutual agreement under PX-4.
In short, whatever the parties had intended by drafting PX-4 was unchanged by PX-1. In PX-4 the parties had explicitly contemplated negotiations and agreements necessary to create a binding option contract. PX-1 did not resolve any of the substantive terms left open for negotiation in PX-4; as the record clearly reveals, it was adopted as an accommodation to Bethlehem's request for a "holding pattern."
From 1968 through 1973, Litton attracted no other customers to its Erie shipyard. Indeed, by early 1973, Litton officials warned Bethlehem that the Erie yard would be closed unless Bethlehem ordered additional ships. Bethlehem officials had previously stated, however, that they were "disgusted" by the "slow" construction of Hull 101,
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and by 1973, rather than express any objection to the closing of the Erie yard, repeatedly insisted that they would never order any additional ships from Litton. Thus, without any hope of future business from Bethlehem, Litton "mothballed" its Erie yard.
Thereafter, in full knowledge of the fact that the Erie Shipyard had dismissed most of its labor force for lack of business, Bethlehem notified Litton by letter that it was planning to "exercise its options" for ore vessels. Significantly, however, Bethlehem expressly acknowledged that the terms of an option agreement had to be negotiated before Bethlehem could exercise any option.
At subsequent meetings, Litton advised Bethlehem that although it had closed down its shipyard in reliance upon Bethlehem's representations, it was willing to build vessels if the parties could reach agreement on a ship construction contract (Ad-9), which Litton was at all times willing to negotiate. The parties, however, never agreed on any of the material terms left open in PX-4 and PX-1, including escalation -- found by the trial judge to be "one of the most critical provisions of a ship construction contract" (Ad-26). Nor would Bethlehem accept any of Litton's alternative proposals.
Judge Louik carefully considered all the relevant factors under the common law and under the Uniform Commercial Code -- the letters themselves, the discussions at the time of the exchange of the letters, the surrounding circumstances, subsequent conduct, the nature of the contemplated construction contract, and the parties' prior dealings -- and found that the parties did not intend to enter a binding agreement until they mutually agreed on the critical terms intentionally deferred, including the terms of a price escalation clause, and reduced those terms to a formal ship construction contract. The Court alternatively found that under Section 2-204(3) of the UCC, no contract had been formed -- because the Court simply could not, on "a reasonably certain basis," fill in the price escalation terms and other missing contract provisions in order to provide for "an appropriate remedy."
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It is literally impossible to understand PX-4 and PX-1 without a knowledge of escalation and the nature of an escalation clause, "one of the most critical provisions of a ship construction contract" (Ad-26). Expert testimony on this complex subject consumed 23 trial days and nearly 3,000 pages of transcript. The trial judge, having become fully familiar with the intricacies and complexities of this highly technical discipline, recognized the critical importance of escalation in long-term multi-million dollar ship construction during a period of double digit inflation and found that a court cannot fashion an escalation clause for parties who are unable to do so for themselves. (See Findings of Fact 18-22, Ad-6-7; Ad-13-14, Ad-20, Ad-25-31.) The difference in the amount of escalation by varying just some of the elements of hypothetical escalation clauses which Bethlehem created for purposes of trial was shown to amount to millions of dollars per vessel. (Ad-26, 27). In the words of the trial judge: "All of the expert testimony indicated that an escalation clause could not be materialized from the air by the Court. Because of the nature of negotiations in shipbuilding and the extreme complexity of the undertaking, an escalation clause requires careful negotiations between the parties and must be custom tailored to fit the project." (Ad-30)
Returning now to relevant portions of the adjudication of Judge Louik dated June 6, 1979, our review of the record supports the correctness of the court's conclusions, as follows:
"While a great many legal issues have been presented by both parties in this trial, their determination and even their relevance depend upon the resolution of one elementary factual dispute: Did both Bethlehem and Litton intend a legally binding option to arise from the two-page letter of April 25, 1968? All of the authorities both under common
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law and the Uniform Commercial Code in Pennsylvania, as well as in other jurisdictions, require that the inquiry into whether a contract exists begins at the ascertainment of the intention of the parties. If the parties intended no binding contract, this Court cannot employ the various rules of interpretation and construction to establish one. It is only after a mutual intent to enter into a legally binding contract is found from the evidence that the Court can proceed to determine the terms of the contract. If no such intent is found, the Court's inquiry must end there.
"The general principles of law appear to be very clear and are undisputed by the parties. That is, if the expressions in the agreement are clear and unambiguous, the Court must determine the intent of the parties solely from a reading of the writing itself. And the obligations of the parties are governed primarily from the writing. If the intent is not clearly expressed or cannot be gained from a reading of the writing itself, then surrounding circumstances may be considered in ascertaining the true intent of the parties. In that situation, subsequent actions of the parties tending to show the construction that they themselves placed upon the writing are important in determining the intention: Ryan v. [Hudak] Hudack, 409 Pa. 211, [185 A.2d 570] (1962).
"One of the contentions of Bethlehem is that these agreements come within the Uniform Commercial Code and, therefore, gaps, (if any appear in the documents), may be filled in by the Court. Presented for the Court's consideration are the following Sections of the Uniform Commercial Code:
§ 2-204(3) 'Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.'
§ 2-207(3) 'Conduct by both parties which recognized the existence of a contract is ...