Supp. To § 1.15 Expressions of Intention, Hope, Desire, or Opinion

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(A) The following case cites this section:

(1) Yocca v. Pittsburgh Steelers Sports, Inc., 806 A.2d 936 (Pa. Commw. Ct. 2002) . The defendants (Steelers) and the Sports Authority of Pittsburgh offered current season ticket holders the opportunity to purchase Stadium Builder Licenses (SBLs) for the new football stadium. SBL purchasers would make a one-time contribution toward the construction of the stadium, they would have the continuing right to purchase season tickets in the section to which they were assigned, and they would have the right to determine the successor to the season tickets for those seats. The first correspondence regarding the SBLs was a brochure including a diagram of the stadium that designated the SBL sections and the yard lines of the playing field. Applicants were to return an attached application, include a down payment, and indicate their section preference. Applicants indicating a preference for an SBL section corresponding to their current seat location would be the first assigned to that section. The brochure promised the defendants would try to assign seats as close to the applicant's current seat location as the new stadium configuration would allow. The defendants later sent two documents to SBL applicants, the ''SBL Agreement,'' which incorporated by reference the ''Additional Terms'' document, which contained an integration clause. The plaintiffs signed and returned the SBL agreements and paid the balance due for their SBLs and apparently bought season tickets. They allege, however, that upon taking their seats the first time they realized that some of the SBL sections had been enlarged. While they were technically located in the section for which they had applied, their seats were located in different, less desirable sections according to the diagram in the brochure. They alleged that they were overcharged for their seats.

The plaintiffs initiated this class-action alleging breach of contract, negligent misrepresentation and fraud, and violation of the Unfair Trade Practices and Consumer Protection Law (UTPCPL). The trial court sustained the defendants' preliminary objections and dismissed the complaint. On appeal, the appellate court disagreed with the trial court's finding that the breach of contract claim was barred by the parol evidence rule. Although the ''Additional Terms'' document contained an integration clause, the court found that the contract was formed prior to that agreement, upon the applicants' return of the application with the non-refundable down payment. Even if the SBL agreement superseded the original contract, the plaintiffs were not necessarily barred from recovery, if, as they contended, their acceptance was based upon the terms as set forth in the brochure and the varying terms in the subsequent documents were simply unilateral, unbargained-for changes. The court affirmed the dismissal of the plaintiffs' negligent misrepresentation and fraud claims since the tort claim was based on the same conduct the plaintiffs claimed constituted the breach of contract. The court affirmed the dismissal of the plaintiffs' request for a declaration that all provisions of the ''Additional Terms'' document, including the integration clause, were void and unenforceable for lack of consideration. Since that document contained a statement that the agreement was binding, the Uniform Written Obligations Act precluded a challenge based on lack of consideration but did not preclude the plaintiffs' alternate claim that even if the integration clause was binding, the terms of the brochure were incorporated into the SBL agreement through reference to the SBL seat section locations as defined in the brochure. The court also found that although a claim under the UTPCPL had to be supported by a purchase or lease of goods or services, the SBL was an option contract and not a license that could be characterized as a ''service.'' The dissent disagreed that a contract was formed upon the return of the application since it found the defendants made no promise at that time (citing Corbin as authority that one may express an intention to do something in the future without promising to do so). The dissent found no promise in the brochure, which stated that the defendants would ''try'' to seat the applicants as close to the applicant's current section as possible.

In Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa. 2004) , the Supreme Court of Pennsylvania noted the dissenting opinion and its quotation of Corbin in reversing the Commonwealth Court. The supreme court viewed the brochure as a mere offer to sell to the plaintiffs a right to be assigned an unspecified seat in an unspecified section of the new stadium and a right to buy a contract for that unspecified seat (the brochure stated that the seats would be assigned at random except for the priority granted current season ticket holders). By applying and sending a down payment pursuant to the brochure, the plaintiffs obtained a right similar to an option contract in that it provided the plaintiffs with a right to accept an offer for SBLs at a later date. Unlike the brochure, the SBL agreement contained a Steelers' promise to actually sell the SBL as well as all of the terms and conditions of sale. The court held that the SBL agreement constituted the entire contract between the parties and the parol evidence rule barred evidence or previous negotiations between the parties such as the brochure to vary the terms of the integrated writing.

Supplement to Notes in Main Volume

1. Frazier v. American Airlines, Inc., 2006 U.S. Dist. LEXIS 33777 (D. Del. 2006) . Employees of TWA left their employment pursuant to ''early out'' provisions of their collective bargaining agreements that provided the plaintiffs with travel privileges on TWA and other airlines. When a bankrupt TWA was consolidated with the defendant, the plaintiffs brought this action claiming that the defendant had promised to honor the TWA commitment for travel privileges. The asset purchase agreement between TWA and American did not provide for American to assume these obligations. When the chief executive officers of both TWA and American appeared before a Senate subcommittee, the American CEO responded to a Senator's question concerning benefits for former TWA former employees by stating, ''We intend to offer retirees pass privileges.'' Subsequently, the American CEO wrote to the TWA CEO stating, ''I am very pleased to let you know that we have made the decision to extend travel privileges on American to TWA retirees, their spouses and dependent children. We have yet to formalize a complete TWA retiree travel program and will share more details on this as we move down the road. However, I know this has become an issue of concern to your retiree group and I wanted to take this opportunity to reassure them. I hope you will share this information broadly with your employees.'' The TWA CEO announced this intention to TWA employees but stated that ''the rules of the program will be finalized as we move forward.'' American posted a statement on its website stating that ''American is committed to travel privileges to eligible employees and retirees of TWA. While the details of these privileges have not yet been determined, American will grant travel privileges under the most equitable terms possible.'' The website also stated that, in light of TWA's numerous travel arrangements with various employee groups that were granted under ''early out'' or other exit programs not consistent with American's travel policies, American ''declines to continue these special arrangements until we are able to review the details and address each of these groups individually.'' When the plaintiffs learned that they would not receive travel privileges, they brought this action. The court held that the statement made by the American CEO at the Senate hearing was, at most, a statement of future intent that did not constitute an offer. The court also found that the other statements made by American were statements of future intention. In granting summary judgment for the defendant, the court held that no reasonable juror could find that any of the plaintiffs received a valid offer of travel privileges from American.

6. Bayview Hunters Point Cmty. Advocates v. Metropolitan Transp. Comm'n, 366 F.3d 692 (9th Cir. 2004) , amended, reh'g denied, 2004 U.S. App. LEXIS 10718 (9th Cir. June 2, 2004) , reprinted as amended, 2004 U.S. App. LEXIS 10703 (9th Cir. June 2, 2004) . As part of a state implementation plan (SIP) to meet national air quality standards, the Metropolitan Transportation Commission (defendant) included Transportation Control Measure 2 (TMC 2), which included a ''target'' increase in public transit ridership of 15 percent over 1982-1983 levels in the San Francisco Bay area. When the levels were not achieved, the plaintiff filed a citizen suit under the Clean Air Act. The district court granted summary judgment for the plaintiff and issued an injunction requiring the defendant to achieve a 15 percent increase in ridership. On appeal, the defendant argued that the 15 percent increase was not a binding commitment. The court noted that establishing a ''target'' is not a promise to attain that target. Citing the Restatement (Second) of Contracts, § 2, comment f, the court emphasized the distinction between promises and statements of opinion or mere predictions of future events. To interpret TMC 2 as an obligation arising from a promise would imply the implausible proposition that the defendant had promised a result that was necessarily contingent upon a number of uncontrollable external factors, including human behavior, which is notoriously unpredictable. In reversing the decision below, the instant court held that the plain language of TMC 2 did not establish a mandatory requirement to increase ridership by 15 percent.

Gustafson v. Wachusett Regional School District, 64 Mass. App. Ct. 802, 836 N. E. 2d 1097 (2005) . Where an agreement concerning the regionalization of schools included a provision stating, ''The parties hereto understand that a regionalization of all or any part of the present school system...will terminate this agreement with respect to those staff members affected by such regionalization...,'' the court held that the operative term, ''understand,'' is not a term of agreement. Rather it suggests a mere prediction or anticipation of future events as distinguished from a manifestation to be bound or an enforceable promise (Restatement (Second) of Contracts, § 2, comment f).

13. Hansen v. Virginia Mason Med. Ctr., 113 Wash. App. 199, 53 P.3d 60 (Ct. App. 2002) . When Kurt Hansen experienced symptoms of neurological dysfunction, he pursued treatment with several physicians including three neurologists who failed to diagnose his condition before he was treated by the defendant, Dr. Taylor, a neuro-oncologist. Taylor concluded that it was ''most likely'' that Hansen was suffering from multiple sclerosis but this diagnosis was not final. Further tests were ordered over the next two years as Hansen's condition deteriorated. In a January 24, 1996, discussion with Hansen, his wife, Barbara, and their minor son, Dr. Taylor allegedly stated that Hansen was not terminal within the next year. Her notes of that conversation indicated that Barbara thought Hansen was terminal but Taylor ''assured her'' that ''this does not seem to be the case.'' Subsequently, a brain biopsy performed by another physician revealed brainstem encephalitis. Hansen died on November 10, 1996, and an autopsy revealed that death was caused by a tumor of the brainstem and viral infection of the brain. None of Hansen's physicians had made this diagnosis. An action by Hansen's family against the hospital and Taylor was based on a statute making a health care provider liable for promising a patient or his representative that the injury suffered would not occur. The court found that the statute merely codified the prior common law concerning physicians' promises to cure or obtain specific results. The plaintiffs relied upon Taylor's statement that she ''assured'' the plaintiffs and Hansen that he was not terminal and contended that an assurance is necessarily a promise. The court, however, held that by such assurance, Taylor did not commit to or undertake a specific result or cure. Only where a physician undertakes or commits to obtain certain results or a cure through a procedure or course of care is a physician's promise enforceable. Thus, whether Taylor promised the plaintiffs that Hansen would not die within a year or assured them that it did not seem to be the case that he would die within a year, the promise was unenforceable.