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BROWNE v. MAXFIELD

January 12, 1987

ARTHUR and KATHLEEN BROWNE
v.
OTIS MAXFIELD and WESTINGHOUSE BROADCASTING AND CABLE, INC.



The opinion of the court was delivered by: POLLAK

 POLLAK, J.

 This case presents tort and contract claims arising from employment negotiations in March 1984 between plaintiff Arthur Browne ("Browne") and defendant Otis Maxfield ("Maxfield"), acting as Vice President and General Manager of Philadelphia television station WKYW ("KYW"), a station owned by defendant Westinghouse Broadcasting and Cable, Inc. ("Westinghouse"). Defendants have moved for summary judgment. For reasons set forth below, defendants' motion shall be granted in part and denied in part.

 I.

 In ruling on a motion for summary judgment, we must keep in mind that "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge," and that "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986). Nonetheless, the judge is to determine whether, in light of the burden of proof at trial, "there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," id. at 2511. *fn1" With those standards in mind, we address the facts of this case.

 When the negotiations began, Browne was employed by WDVM-TV ("DVM") in Washington, D.C., as managing editor of its news division; his family lived in Yardley, Pennsylvania. The negotiations took place over a period of several days, in person and by telephone.

 On March 22, *fn2" Browne had interviews in Philadelphia with, among others, Maxfield and Joel Rose ("Rose"), a consultant to KYW in its search for a news director, to discuss the possibility of joining KYW as news director.

 On March 27, Browne had a telephone conversation with Rose. In that conversation, Rose asked Browne "what he would want" by way of salary and other benefits. Browne replied that he wanted a salary in the range of $75,000 to $125,000 per year, a furnished apartment near the station, and two VCRs. Rose then asked Browne to come to Philadelphia that evening for a second meeting, at the home of Peg Braveman ("Braveman"), a KYW employee.

 At that evening meeting, attended by Braveman, Rose, Maxfield, and Browne, Maxfield seemed very enthusiastic about Browne, repeatedly telling Browne "you're my guy" and "I'm your prince." Browne testified that he knew the deal would not be finalized until after he met with Larry Fraiberg, president of Westinghouse's television station group, but that he understood sometime in the course of the March 27 meeting that the job was his. *fn3" Browne also testified that he knew that Maxfield had a meeting scheduled with Fraiberg on Friday, March 30, and that Maxfield would discuss Browne with Fraiberg at that meeting. Browne stated that the Friday meeting was just for "protocol," but upon questioning, he conceded that it could happen that Fraiberg would tell Maxfield at that meeting that Browne was "just completely undesirable . . . as a candidate for this job." Browne further stated that Maxfield told him that he would call him after the Friday meeting with Fraiberg.

 On March 30, Maxfield called Browne to say that he had met with Fraiberg. Maxfield told Browne that he should come to New York the next day to meet with Maxfield and Fraiberg, and that after the meeting Browne and Maxfield would "finalize the deal." During that conversation, Browne expressed concern that Dave Pearce ("Pearce"), his boss at DVM, might hear through the grapevine that Browne was taking the job at KYW before Browne had a chance to tell him in person. Browne asked Maxfield if he could call Pearce and let him know that he would formally resign on Monday, April 2. Maxfield said, "OK. Do it." Browne reached Pearce and told him later that day.

 On March 31, a meeting took place between Fraiberg, Maxfield, and Browne in New York. Browne emerged from the meeting without the job. Browne appears to have assumed that Maxfield continued to support him, and that Fraiberg made the final adverse decision. Browne and Fraiberg both testified, however, that Maxfield himself decided after the meeting that he had been wrong about Browne, and that Maxfield withdrew his recommendation of Browne for the position.

 On April 2, Browne returned to DVM, and told Pearce that at that point he did not have the KYW job and might want to stay on at DVM. Pearce decided to let him stay.

 On April 9, Pearce and Browne had a heated argument about a decision Browne had made. Pearce fired Browne.

 II.

 Count II of the First Amended Complaint, which names Westinghouse as sole defendant, alleges that Browne and KYW formed an oral contract for employment, and that KYW breached the contract "by not hiring Art Browne." Defendants argue in their motion for summary judgment that the pleadings and evidence fail to support the existence of an oral contract. In the alternative, they contend that even if an oral contract was formed, it was a contract for employment terminable at will, and that their actions therefore did not constitute a "breach" of the employment contract.

 We shall first address defendants' contention that no contract was formed. *fn4" The existence and terms of an oral contract must be established by "clear and precise" evidence. Orchard v. Covelli, 590 F. Supp. 1548, 1556 (W.D. Pa. 1984); Kassab v. Ragnar Benson, Inc., 254 F. Supp. 830, 832 (W.D. Pa. 1966). Defendants stress that "one of the elements required to prove the existence of a binding contract is that the rate of compensation be clearly established." Kassab, supra, 254 F. Supp. at 832. They argue that because no definite salary figure was mentioned, no contract was formed. We disagree. In Seiss v. McClintic-Marshall Corp., 324 Pa. 201, 188 A. 109 (1936), the Pennsylvania Supreme Court stated that "in order that a contract may be enforceable the promise or the agreement of the parties to it must be certain and explicit, so that their full intention may be ascertained to a reasonable degree of certainty " (emphasis added). Once it is determined that the parties intended to form a binding agreement, certainty of terms is important only as a "basis for determining the existence of a breach and for giving an appropriate remedy." Restatement (Second) of Contracts § 33. See also Linnet v. Hitchcock, 324 Pa. Super. 209, 471 A.2d 537, 540 (1984).

 We conclude that the terms of the alleged contract are sufficiently specific to meet this standard. Browne testified that, when asked by Rose to state what he wanted, he gave a salary range between $75,000 and $125,000 and mentioned several specific fringe benefits. This evidence is adequate to allow a jury to determine that the contract would have been breached by payment below $75,000 or by failure to provide Browne with those benefits. The fact that the exact salary amount (if the amount was to be above $75,000) and other fringe benefits were not pinned down is not sufficient to defeat a finding that a contract was made absent any evidence that the missing terms were material to the parties.

 For similar reasons, we do not accept defendants' view that the understanding between Maxfield and Browne that the deal would be "finalized" only after the March 31 meeting with Fraiberg requires a conclusion that Browne knew there were to be "further manifestations of assent" before the contract was finally concluded. See Restatement (Second) of Contracts § 26; Cohen v. Johnson, 91 F. Supp. 231, 235-36 (M.D. Pa. 1950); Upsal St. Realty Co. v. Rubin, 326 Pa. 327, 192 A. 481, 482 (1937). A fact-finder might reasonably infer that Westinghouse's assent to the core terms of the deal was already "final," and that only the (non-material) fine points remained to be "finalized."

 Before we may conclude that there is a genuine issue of fact as to the existence of an oral contract between Browne and Westinghouse, however, we must address the question whether Maxfield had the authority to bind Westinghouse to the contract. "The fact of agency and the scope of the power of an agent are questions for the court, where the authority is created by an instrument in writing; but where such authority is to be implied from the conduct of the parties, or where the agency is to be established by witnesses, the fact and scope of the agency are for the jury." Waldron v. Aetna Casualty & Surety Co., 141 F.2d 230, 234 (3d Cir. 1944), quoting Singer Manufacturing Co. v. Christian, 211 Pa. 534, 540, 60 A. 1087, 1088.

 There are several theories under which a principal may be liable to a third party for the acts of its agent. Most of these theories require some manifestation by the principal, by words or conduct, to the agent or to the third party, of its intent to be bound.

 In the case of actual authority, the agent has the power to bind his principal because the principal has manifested its intent to be bound to the agent. Restatement (Second) of Agency § 7. The scope of actual authority may be specified quite explicitly, but is more commonly defined by implication. Id. comment c. Thus, courts have distinguished between two kinds of actual authority: "(1) express authority, or that which is directly granted; (2) implied authority, to do all that is proper, usual and necessary to the exercise of the authority actually granted." Reifsnyder v. Dougherty, 301 Pa. 328, 152 A. 98, 100 (1930) (emphasis added).

 It is clear from the facts of the case before us that Maxfield did not have actual authority to hire a news director without the approval of Fraiberg. Westinghouse's Limits of Authority directive, of which Maxfield was aware, requires that "all hires of management personnel reporting directly to a Vice President/General Manager must be approved by ...


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