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PECKARSKY v. AMERICAN BROADCASTING CO.

December 6, 1984

Peter PECKARSKY, Plaintiff,
v.
AMERICAN BROADCASTING COMPANY, INC., et al., Defendants



The opinion of the court was delivered by: GREENE

 HAROLD H. GREENE, District Judge.

 In this action plaintiff, a free-lance journalist and attorney who is appearing pro se, has sued defendants American Broadcasting Company (ABC), et al., for their alleged breach of an agreement concerning his 1978 article, "The Selling of the President." The claims asserted against the defendants include common-law breach of contract (Count I), unfair trade practices (Count III), unfair competition (Count IV), fraudulent misrepresentation (Count V), negligent misrepresentation (Count VII), and trade secret conversion (Count VIII) claims, as well as federal copyright (Count II) and civil RICO (Count VI) claims. Plaintiff has moved for summary judgment against various defendants with respect to several of the counts asserted in the complaint; *fn1" defendants have cross-moved for summary judgment and dismissal of the complaint in its entirety. For the reasons stated below, the Court will deny plaintiff's motion, and it will grant defendants' motion with respect to Counts II, III, IV, VI, and VIII.

 I

 There is no dispute between the parties concerning most of the terms of the verbal agreement reached between plaintiff and Zelnick. ABC was to have exclusive rights to the information contained in plaintiff's article for a period of three weeks (between approximately August 7 to August 27, 1978). During that time, ABC was to investigate the allegations contained in the article with the assistance of plaintiff, who was retained as a consultant at a fee of $500 per week for the three-week period. If ABC broadcast reports based on the article, plaintiff was to be paid $1,000 for each television spot and $100 for each radio spot.

 It is also undisputed that both parties substantially performed these terms. Plaintiff provided defendants with exclusive access to his article; he assisted in undertaking additional investigations; and defendants paid plaintiff his $1,500 consulting fee. Defendants also paid plaintiff $2,000 after they broadcast two spot reports -- one on the October 19, 1978 edition of "World News Tonight", and the other on the October 20, 1978 edition of "Good Morning America" -- concerning alleged discrepancies in President Carter's valuation of farm equipment for federal income and local property tax purposes that had been reported in plaintiff's article. *fn3"

 The contest here revolves primarily around ABC's alleged promise to give plaintiff audio and video credit on any spots based on his article. Plaintiff has produced an August 7, 1978 letter from himself to Zelnick which purports to memorialize the agreement between the parties, and which includes the disputed credit provision. The letter also includes a request that Zelnick notify plaintiff if the letter did not accurately reflect the parties' agreement, and a handwritten note by plaintiff, apparently in reference to a telephone conversation with Zelnick, that the letter accurately reflects the agreement. Defendants, for their part, vigorously deny, both in their papers and in their depositions, that Zelnick or any other ABC employee agreed that plaintiff would receive audio-visual credit on any spots, although they admit that plaintiff sought such credit and that he and Zelnick discussed the matter several times. In the event, ABC never performed the contested term of the agreement -- that is, plaintiff never received any sort of on-air credit in the television spots that concerned allegations contained in the article.

 It should also be noted that in his most recent amendment to the complaint, *fn4" plaintiff alleged for the first time that defendants also breached the terms of the agreement requiring that he be paid for each radio and television spot based on his article. Specifically, he claims that ABC broadcast five additional spots based on his article for which he was never paid and on which he received no on-air credit. *fn5" Defendants admit both that they have not paid plaintiff for the additional broadcasts, and that they did not provide him with on-air credit, but they deny that they had any obligation to do so.

 II

 The two breach of contract claims in Count I of the complaint -- one relating to defendants' alleged failure to pay plaintiff for the later television spots based on his article, and the other to their failure to provide him with audio-video credit on all seven television spots -- form the heart of this case. *fn6"

 A. Defendants' motion for summary judgment with respect to the failure to credit claim proceeds on the grounds (1) that Zelnick never agreed on behalf of ABC to provide plaintiff with on-air credit, and (2) that even if Zelnick made such a promise, he lacked authority to do so and he therefore he could not bind the other defendants.

 It appears from the affidavits submitted by defendants and from the deposition testimony that Zelnick did lack actual authority to bind ABC to an agreement to provide on-air credit. But even absent actual authority, an on-air credit promise by Zelnick -- if one was made -- could have bound ABC if Zelnick possessed apparent authority to do so. See 1 Restatement (2d) of Agency ยงยง 8, 48, 140, 159 (1958). The issues of the precise scope of Zelnick's authority, of plaintiff's contemporaneous belief concerning that authority, and of the reasonableness of his beliefs in light of industry custom and practice all involve unresolved questions of material fact.

 Assuming that plaintiff is able to prove that, under agency principles, Zelnick's promises bind ABC, the factual question remains what promises Zelnick actually made with respect to on-air credit to plaintiff. This question involves both intent and credibility -- clearly matters for the finders of fact and therefore inappropriate for summary judgment. See Centronics Financial Corp. v. El Conquistador Hotel Corp., 573 F.2d 779, 782 (2d ...


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