Pacitti v. Macy's

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

9-2-1999

Pacitti v. Macy's

Precedential or Non-Precedential:

Docket 98-1803

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999

Recommended Citation

"Pacitti v. Macy's" (1999). 1999 Decisions. Paper 246.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/246

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Filed September 2, 1999

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 98-1803

JOANNA PACITTI, a minor, by JOSEPH PACITTI, and STELLA PACITTI, her

parents and guardians,

Appellants

v.

MACY'S; MACY'S EAST, INC.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT

OF PENNSYLVANIA

(D.C. No. 97-cv-02557) (District Judge: Honorable James T. Giles)

Argued: July 15, 1999

Before: GREENBERG, ALITO, Circuit Judges, and STAFFORD, District Judge*

(Opinion Filed: September 2, 1999)

ALFRED W. PUTNAM, JR. (argued) Drinker, Biddle & Reath 1345 Chestnut

Street Philadelphia

National Bank Building Philadelphia, PA 19107-3496

_________________________________________________________________ *The

Honorable

William H. Stafford, Jr., United States District Judge for the Northern

District of Florida, sitting by

designation.

ALBERT C. OEHRLE One East Airy Street

P.O. Box 657 Norristown, PA 19404

JOSEPH F. CLAFFY Joseph F. Claffy & Associates, PC 100 S. High Street West

Chester, PA 19382

Counsel for Appellants

ROBERT P. JOY (argued) DIANE M. SAUNDERS Morgan, Brown & Joy, LLP

One Boston Place, Suite 1616 Boston, MA 02108-4472

JAMES M. PENNY, JR. Obermayer Rebmann Maxwell & Hippel LLP One Penn Center

- 19th Floor

1617 John F. Kennedy Boulevard

Philadelphia, PA 19103-1895

Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

Stella and Joseph Pacitti, on behalf of their daughter, Joanna Pacitti

("plaintiffs"), appeal the District Court's

grant of summary judgment in favor of Macy's East, Inc. ("Macy's") on

their state-law contract and tort

claims arising from Macy's role as promoter and host of "Macy's Search for

Broadway's New `Annie' " (the

"Search"). Plaintiffs also appeal the District Court's order limiting the

scope of

discovery. For the reasons that follow, we reverse on both grounds and

remand for further proceedings.

I.

In May 1996, the producers of "Annie," the Classic Annie Production

Limited Partnership (the "producers"),

and Macy's, a retail department store chain, entered into an agreement

under which Macy's agreed to

sponsor the "Annie 20th Anniversary Talent Search." See App. at 129a- 32a.

Specifically, Macy's agreed

to promote the event and to host the auditions at its stores in the

following locations: New York City,

Boston, Atlanta, Miami, and King of Prussia, Pennsylvania. See id. at

129a-30a. The producers agreed to

select one finalist from each regional store to compete in a final

audition at Macy's Herald Square store in

New York City. See id. at 130a. The producers also agreed to offer the

winner of the final audition "a

contract for that role to appear in the 20th Anniversary Production of

Annie .. ., subject to good faith

negotiations and in accordance with standard Actors' Equity Production

Contract guidelines" (the "standard

actors' equity contract"). 2 Id.

Macy's publicized the Search in newspapers and in its stores in the five

regional locations. All of the

promotional materials referred to the event as "Macy's Search for

Broadway's New `Annie.' " See id. at

59a-83a. Plaintiffs learned of the Search from an advertisement in the

Philadelphia Inquirer that stated, in

pertinent part:

If you are a girl between 7 and 12 years old and 4 *6<!DAG> or under, the

starring role in this 20th

Anniversary Broadway production and national tour could be yours! Just get

your hands on an application .

. . and bring it to the audition at Macy's King of Prussia store. . . .

Annie's director/lyricist . . . will pick the

lucky actress for final callbacks . . . at Macy's Herald Square. Annie

goes on the road this fall and opens on

Broadway Spring 1997.

_________________________________________________________________

2. The Actors' Equity Association requires producers to attach its

standard "Agreement and Rules

Governing Employment under the Production Contract" to "all contracts

where production is bonded as a

Bus and Truck Tour." See App. at 141a. As we discuss below, that contract

provides, among other things,

that the producer retains the authority to replace the actor at any time

so long as the actor is compensated

through the term of the contract. See id. at 168a. Id. at 208a.

In June 1996, Joanna, then 11-years old, and her mother picked up an

application at the King of Prussia

store. The application form announced:

Annie, America's most beloved musical[,] and Macy's, the world's largest

store, are conducting a talent

search for a new "Annie" to star in the 20th Anniversary Broadway

production and national Tour of Annie. .

. .

Id. at 22a. The reverse side of the application form contained the

"Official Rules [of] Macy's Search for

Broadway's New `Annie.' " See id. at 23a. In addition to explaining the

two-part audition process, the

official rules provided, in relevant part:

1. All participants must be accompanied by a paren t or legal guardian and

must bring completed application

forms to one of the Macy's audition locations . . . and be prepared to

audition. . . .

2. The "Annie" selected at the "Annie-Off -Final Callback" will be

required to work with a trained dog. The

tour commences in Fall 1996, with a Broadway opening tentatively scheduled

for Spring 1997, [and] with a

post-Broadway tour to follow.

***

6. [Y]ou and your parent or legal guardian a re responsible for your own

conduct, and hereby release

Macy's . . . and the Producers . . . from any liability to or with regard

to the participants and/or her parent or

legal guardian with respect to the audition(s).

***

8. All determinations made by the Producers or the ir designated judges

are being made at their sole

discretion and each such determination is final.

Id.3 Unlike Macy's contract with the producers, neither the

(Text continued on page 6)

_________________________________________________________________

3. Because the District Court relied heavily on the official rules in

rendering its decision, we provide them

here in full: 1. All participants must be accompanied by a paren t or

legal guardian and must bring completed

application forms to one of the Macy's audition locations on the dates and

times listed on the reverse of this

form and be prepared to audition. Only one parent or legal guardian may

accompany each participant.

2. The "Annie" selected at the "Annie-Off -Final Callback" will be

required to work with a trained dog. The

tour commences Fall 1996, with a Broadway opening tentatively scheduled

for Spring 1997, [and] with a

post-Broadway tour to follow. Parent(s) or guardian(s) will accompany tour

children. Additional information

on arrangements for the final call-back and show rehearsals and

performances will be provided to each

regional finalist selected to attend the "Annie-Off-Final Callback"

audition in New York City.

3. By participating, you agree to follow these Official Rules and you

consent to the taking of a photograph,

for identification purposes only. You also agree that Macy's (and/or a

Macy's designee) may use your name,

likeness, biographical data and /or [sic] voice for advertising,

promotional activities and/or publicity, whether

or not related to the audition and also acknowledge that such use requires

neither any further permission nor

any compensation. Participants who are members of Actors' Equity

Association must identify themselves to

an event representative as such, and will not be audio or video taped

during the audition process. All

application forms are the sole property of Macy's and Macy's is not

responsible for any lost, destroyed,

incomplete, illegible or otherwise deficient or unusable application

forms.

4. In order to participate in the audition, you mu st complete and return

the reverse application form, be a

U.S. resident, between the ages of 7 and 12 as of June 2, 1996[,] and you

must be available for the final

audition on Thursday, August 8, 1996[,] in New York City.

5. Macy's may require that you verify your date of birth and may require

that you provide a certified copy of

your birth or baptismal certificate, school records or other document that

states your date of birth.

6. Participants' parents or legal guardians are re sponsible for any tax

obligations and expenses you may

incur (such as the cost of travel or hotel accommodations) for the initial

audition. The Classic Annie

Production Limited Partnership (the "Producers") will provide travel and

hotel accommodations to finalists

selected for the "Annie- official rules4 nor any of the promotional

materials included a provision informing the

participants that the winner of the Search would receive only the

opportunity to enter into a standard actors'

equity contract with the producers.

Joanna and her mother signed the official rules and proceeded to the

initial audition at the King of Prussia

store. Macy's publicized the event by placing balloons, signs, pins, and

other promotional materials

advertising "Macy's Search for Broadway's New `Annie' " throughout the

store. After auditioning hundreds

of "Annie" hopefuls, the producers selected Joanna as the regional

finalist. In a press release, Macy's

announced Joanna's success to the public: "One in Ten She'll Be a Star!!!

Macy's Brings Local Girl One

Step Closer Towards `Tomorrow' to Become Broadway's New `Annie.' " Id. at

77a. The press release

further provided:

Philadelphia's own, twelve year-old Joanna Pacitti, will join nine other

talented girls for a final audition to

cast the title role in the 20th Anniversary production of the classic Tony

Award-winning musical, Annie,

coming to Broadway this season. . . . Ten finalists, most of whom were

selected from over two thousand

"Annie" hopefuls

_________________________________________________________________

Off " call-back in Macy's Herald Square on Thursday, August 8, 1996. In

addition, you and your parent or

legal guardian are responsible for your own conduct, and hereby release

Macy's East, Inc., its affiliates and

each of their respective officers, directors, employees, agents,

successors and assigns (for purposes of this

Paragraph 6, all included within the term "Macy's") and the Producers and

their successors and assigns from

any liability to or with regard to the participants and/or her parent or

legal guardian with respect to the

audition(s).

7. The audition is subject to all applicable laws and regulations.

8. All determinations made by the Producers or the ir designated judges

are being made at their sole

discretion and each such determination is final.

App. at 23a.

4. Throughout the remainder of this opinion, we refer to the official

rules and the application form as the

"official rules." . . ., will vie for the chance to become Broadway's new

"Annie."

Id. (emphasis in original).

At the producers' expense, Joanna and her mother traveled to New York City

for Joanna to participate in

the "Annie-Off-Final Call Back" at Macy's Herald Square store. After

auditioning for two days, the

producers selected Joanna to star as "Annie" in the 20th Anniversary

Broadway production. Again, Macy's

announced Joanna's success to the public, referring to her as "Broadway's

New `Annie.' " See id. at

59a-83a.

Joanna and her mother met with the producers and signed an "Actors' Equity

Association Standard

Run-of-the- Play Production Contract." See id. at 133a-68a. Consistent

with the Actors' Equity

Association's rules governing production contracts, the producers retained

the right to replace Joanna with

another actor at any time as long as they paid her salary through the term

of her contract. See id. at 168a.

For nearly a four-month period, Joanna performed the role of "Annie" in

the production's national tour. In so

doing, Joanna appeared in over 100 performances and in six cities. In

February 1997, approximately three

weeks before the scheduled Broadway opening, the producers informed Joanna

that her "services [would]

no longer be needed," and she was replaced by her understudy. Id. at 12a.

On March 21, 1997, plaintiffs filed suit against Macy's in Pennsylvania

state court, alleging breach of

contract and the following tort claims: (1) fraudulent misrepresentation,

(2) equitable estoppel, (3) public

policy tort, (4) breach of implied covenant of good faith and fair

dealing, and (5) punitive damages. See id.

at 15a-21a. In particular, plaintiffs alleged that Macy's failed to

deliver the prize it had offered, i.e., the

starring role of "Annie" on Broadway, and that Macy's knew it could not

award this prize but promoted its

ability to do so nonetheless. See id. Macy's subsequently removed the suit

to federal district court based on

diversity. During discovery, plaintiffs sought to uncover information on

the relationship between Macy's and

the producers and on the pecuniary benefit Macy's received from sponsoring

the Search. Macy's objected

to their request, and the District Court limited discovery to "what

promises, if any, were made by defendant

prior to and at the final audition . . . in New York City that the person

selected at that audition would appear

in the role as Annie." Id. at 38a. Plaintiffs moved for reconsideration,

and the District Court denied that

motion on December 19, 1997. See id. at 50a.

Macy's then moved for summary judgment, contending that it did not deprive

Joanna of any prize she had

been promised and that her rights were limited by the terms of her

contract with the producers. See id. at

24a, 126a. In support of its motion, Macy's proffered, among other things,

its contract with the producers,

which, as explained above, specified that the successful contestant would

receive only the opportunity to

enter into a standard actors' equity contract with the producers.

The District Court granted summary judgment in favor of Macy's. See

Pacitti v. Macy's, No. Civ. A.

97-2557, 1998 WL 512938 (E.D. Pa. Aug. 18, 1998). Addressing plaintiffs'

breach of contract claim, the

District Court concluded that the contract was unambiguous and capable of

only one reasonable

interpretation -- i.e., that Macy's offered only an audition for the

opportunity to enter into a standard actors'

equity contract with the producers for the title role in "Annie." See id.

at *3-4. Therefore, the Court rejected

plaintiffs' contention that Macy's offered Joanna a guaranteed Broadway

opening, see id. at *4, and the

Court concluded:

Plaintiffs received the benefit of their bargain by being offered a

contract with the Producers for the "Annie"

role, in exchange for Ms. Pacitti participating in "Macy's Search for

Broadway's New Annie." . . . When the

Producers offered a contract to Plaintiffs consistent with the terms of

the Official Rules[,] any possible

obligation Macy's had to Plaintiffs was fully met.

Id. After rejecting plaintiffs' breach of contract claim, the District

Court turned to their tort claims. See id.

Reasoning that each cause of action was predicated upon the assertion that

Macy's offered Joanna the role

of"Annie" on Broadway, and concluding that Macy's made no such

representation, the District Court

granted Macy's motion for summary judgment on these claims as well. See

id.

Plaintiffs then took this appeal. In their notice of appeal, plaintiffs

state only that they appeal from the District

Court's order granting summary judgment for Macy's. See App. at 235a. In

this appeal, however, plaintiffs

also argue that the District Court abused its discretion in limiting the

scope of discovery.

II.

A. We turn first to plaintiffs' argument that th e District Court erred in

granting summary judgment in favor of

Macy's on the breach of contract claim. We exercise plenary review over a

grant of summary judgment and

apply the same legal standard used by the District Court. See Hullet v.

Towers, Perrin, Forster & Crosby,

Inc., 38 F.3d 107, 111 (3d Cir. 1994). In so doing, we evaluate the

evidence in the light most favorable to

the nonmoving party and draw all reasonable inferences in that party's

favor. See id. We conclude that the

District Court erred.

Under the law of Pennsylvania,5"[t]he promoter of a [prize-winning]

contest, by making public the

conditions and rules of the contest, makes an offer, and if before the

offer is withdrawn another person acts

upon it, the promoter is bound to perform his promise." Cobaugh v. Klick-

Lewis, Inc., 561 A.2d 1248,

1249 (Pa. Super. Ct. 1989) (quoting Annotation, Private Rights and

Remedies Growing Out of

Prize-winning Contests, 87 A.L.R.2d 649, 661). An

_________________________________________________________________

5. Because the laws of New York and Pennsylvania are identical in all

aspects material to the resolution of

this case, and because the parties do not assert a preference for the law

of one jurisdiction over the other,

we, like the District Court, will not engage in a choice of law analysis.

See Pacitti v. Macy's, No. Civ. A.

97-2557, 1998 WL 512938, at *2 n.2 (E.D. Pa. Aug. 18, 1998). In addressing

plaintiffs' breach of

contract claim, however, we refer only to the law of Pennsylvania. offer

has been defined as "a manifestation

of willingness to enter into a bargain, so made as to justify another

person in understanding that his assent to

that bargain is invited and will conclude it." Cobaugh, 561 A.2d at 1249

(citing Restatement (Second) of

Contracts § 24; 8 P.L.E. Contracts § 23). The offer to award a prize

results in an enforceable contract if the

offeree performs the required action before the offer is withdrawn. See

id.

Here, the parties entered into an enforceable contract under Pennsylvania

law. Macy's offered girls the

opportunity of becoming "Broadway's New `Annie' " by participating in and

winning the auditions, and

Joanna participated in and won the auditions. Therefore, the dispute in

this appeal relates to the parties'

interpretation of that contract and, in particular, to the question

whether the District Court properly found

that the contract is unambiguous. Determining whether a contract is

ambiguous is a legal question, and our

review is plenary. See Mellon Bank, N.A. v. Aetna Business Credit, Inc. ,

619 F.2d 1001, 1011 (3d Cir.

1980).

The purpose of contract interpretation is to ascertain and effectuate the

objectively manifested intentions of

the contracting parties. See Hullet v. Towers, Perrin, Forster & Crosby,

Inc., 38 F.3d 107, 111 (3d Cir.

1994) (citing Mellon Bank, 619 F.2d at 1009). The court first determines

whether the contract is

ambiguous. See Hullet , 38 F.3d at 111 (citing Stendardo v. Federal Nat'l

Mortgage Ass'n, 991 F.2d 1089,

1094 (3d Cir. 1993)). A contract is ambiguous if it is capable of more

than one reasonable interpretation.

See Mellon Bank, 619 F.2d at 1011 (defining ambiguity as an

"[i]ntellectual uncertainty [or] the condition of

admitting two or more meanings, of being understood in more than one way,

or referring to two or more

things at the same time. . . ."). If the contract as a whole is

susceptible to more than one reading, the

factfinder resolves the matter. See Hullet, 38 F.3d at 111. On the other

hand, where it is unambiguous and

can be interpreted only one way, the court interprets the contract as a

matter of law. See id.

In determining whether a contract is ambiguous, the court "assumes the

intent of the parties to an instrument

is `embodied in the writing itself, and when the words are clear and

unambiguous the intent is to be

discovered only from the express language of the agreement.' " Id. (citing

County of Dauphin v. Fidelity &

Deposit Co., 770 F. Supp. 248, 251 (M.D. Pa.), aff 'd, 937 F.2d 596 (3d

Cir. 1991)). This does not

mean, however, that the court is confined to the "four corners of the

written document." Hullet, 38 F.3d at

111 (citing Mellon Bank, 619 F.2d at 1011). Rather, the court reads the

contract in the context in which it

was made. See Hullet, 38 F.3d at 111 (citing Steuart v. McChesney, 444

A.2d 659, 662 (Pa. 1982)).

Therefore, to determine the parties' intentions, the court may consider,

among other things, "the words of the

contract, the alternative meaning suggested by counsel, and the nature of

the objective evidence to be

offered in support of that meaning." Hullet, 38 F.3d at 111 (quoting

Mellon Bank, 619 F.2d at 1011).

In this case, the District Court concluded that the contract was

unambiguous and capable of only one

reasonable interpretation -- i.e., that Macy's offered only an audition

for the opportunity to enter into a

standard actors' equity contract with the producers for the title role in

"Annie." See Pacitti v. Macy's, No.

Civ. A. 97-2557, 1998 WL 512938, at *3-4 (E.D. Pa. Aug. 18, 1998). In

reaching this conclusion, the

Court noted that the official rules repeatedly referred to the promotion

as an "audition," as opposed to a

"contest," and vested "sole discretion" in the producers to make final

determinations. See id. at *3. Hence,

the District Court found that "Plaintiffs could not reasonably have relied

upon Macy's as the selector of

`Annie' or as a controller of the Producers," id., and that "it was

obvious that Macy's was promoting

auditions for the benefit of the Annie Producers." Id. at *4. The District

Court also found that plaintiffs

"knew that while Macy's was promoting the search, it was not the entity

that would be contracting with the

new `Annie.' " Id. at *3. Rather, the District Court noted, plaintiffs

"wholly expected" to sign a standard

actors' equity contract with the producers and, according to the Court,

their expectation is evidenced by the

fact that they executed such a contract after Joanna won the Search. See

id. The Court explained further:

The contract which she signed with the Producers did not guarantee her

that she would open on Broadway,

but instead considered her to be like every other actor in "Annie" who had

won their role through an audition

process but could be replaced at the Producers' discretion pursuant to the

standard equity contract.

943<!>Id. Therefore, the District Court rejected plaintiffs'

contention that Macy's offered Joanna a guaranteed Broadway opening, see

id. at *4, and the Court

concluded:

Plaintiffs received the benefit of their bargain by being offered a

contract with the Producers for the "Annie"

role, in exchange for Ms. Pacitti participating in "Macy's Search for

Broadway's New Annie." . . . When the

Producers offered a contract to Plaintiffs consistent with the terms of

the Official Rules[,] any possible

obligation Macy's had to Plaintiffs was fully met.

Id.

Applying the standards discussed above, we conclude that the District

Court erred in determining that the

contract was capable of only one reasonable interpretation. Plaintiffs'

interpretation -- that Macy's offered

the prize of performing as "Annie" on Broadway for at least some period --

is a reasonable alternative to that

of the District Court.

The official rules and promotional materials referred to the promotion as

"Macy's Search for Broadway's

New `Annie.' " The official rules provided that the producers and Macy's

were "conducting a talent search

for the new `Annie' to star in the 20th Anniversary Broadway production,"

and the advertisement in the

Philadelphia Inquirer promised that "[t]he starring role in this 20th

Anniversary Broadway Production and

National Tour could be yours!" From these assertions, one reasonably could

conclude that Macy's offered

the winner of the Search the prize of starring as "Annie" on Broadway. In

addition, the use of the word

"audition," as opposed to "contest," in the official rules does not make

plaintiffs' interpretation unreasonable.

As plaintiffs assert:

[T]he word `audition' refers to the process a contestant must undergo

before she can `win' the prize. . . . It

follows, one would think, the girl selected after the `final audition' has

won something more than an

`audition.' Appellants' Br. at 20-21 (emphasis in original).

Moreover, it is not unreasonable to conclude that Macy's had the ability

to offer the winner of the Search the

starring role on Broadway. The official rules provided that:

Annie, America's most beloved musical[,] and Macy's, the world's largest

store, are conducting a talent

search for a new "Annie" to star in the 20th Anniversary Broadway

production and national Tour of Annie. .

. .

App. at 22a (emphasis added). That passage suggests that Macy's and the

producers jointly promoted and

hosted the Search. It does not indicate any relative imbalance of

authority in favor of the producers. Nor do

we believe that the clause vesting "sole discretion" in the producers

supports only the interpretation that the

producers were "the sole determiners of the Annie role." Pacitti, 1998 WL

512938, at *3 (emphasis

added). Rather, that clause can be interpreted more narrowly as only

restricting Macy's from selecting the

winner of the auditions.

Further, Macy's at no point revealed -- either through its printed

materials or other means -- that the winner

of the Search would receive only the opportunity to sign a standard

actors' equity contract with the

producers. 6 Nor do the facts suggest that plaintiffs -- none of whom was

a member of the Actors' Equity

Association -- had any knowledge greater than that provided by Macy's. 7

We do not believe that Macy's

role was so "obvious" that it need not

_________________________________________________________________

6. Macy's should have manifested its intention in the contract by limiting

or qualifying its offer accordingly.

See Cobaugh , 516 A.2d at 1250-51 (noting that it is the duty of the

drafter of the contract to exercise due

care in explaining its offer so as not to mislead the public); Hutchinson

v. Sunbeam Coal Corp., 519 A.2d

385, 390 n.5 (Pa. 1986) ("[I]n determining the intention of the parties to

a written contract, the writing must

be construed against the party drafting the document."). 7. We disagree

with the District Court's assertion

that based on the general release clause, it is clear that plaintiffs"knew

that while Macy's was promoting the

search, it was not the entity that would be contracting with the new

`Annie.' " Pacitti, 1998 WL 512938, at

*3. That clause provides:

[Y]ou and your parent or legal guardian are responsible for your own

conduct, and hereby release Macy's .

. . and the Producers . . . from any liability to or with regard to the

participants and/or her parent or legal

guardian with respect to the audition(s).

App. at 23a. As is clear from the language quoted above, that clause not

only releases Macy's but also the

producers. have limited its offer to the public, and we find it telling

that Macy's contract with the producers

contained qualifications on the prize to be offered. Therefore, we

conclude that it was reasonable for

plaintiffs to believe that Macy's offered the starring role of "Annie" on

Broadway.

We reach this conclusion even though plaintiffs executed a standard

actors' equity contract with the

producers. Courts may consider the subsequent actions of the contracting

parties to ascertain the parties'

intentions and resolve any ambiguities. See Department of Transp. v.

Mosites Constr. Co., 494 A.2d 41, 43

(Pa. Commw. Ct. 1985) ("The intention of the parties must control the

interpretation of the contract but if

the intent is unclear from the words of the contract, we may examine

extrinsic evidence including

consideration of the subject matter of the contract, the circumstances

surrounding its execution and the

subsequent acts of the parties."); see also In re Estate of Herr, 161 A.2d

32, 34 (Pa. 1960). Joanna's

contract with the producers, however, does not demonstrate plainly and

unambiguously that when plaintiffs

contracted with Macy's, they "wholly expected" to execute a standard

actors' equity contract with the

producers.

For these reasons, we hold that the contractual language is ambiguous, and

its interpretation should be left to

the factfinder for resolution. Accordingly, the District Court erred in

concluding that Macy's is entitled to

judgment as a matter of law.

B. Macy's also contends that plaintiffs' claims ar e barred by the express

release in the official rules. The

official rules provide, in pertinent part:

[Y]ou and your parent or legal guardian are responsible for your own

conduct, and hereby release Macy's .

. . and the Producers . . . from any liability to or with regard to the

participants and/or her parent or legal

guardian with respect to the audition(s).

App. at 23a. That paragraph simply releases Macy's from liability "with

respect to the audition(s)." It does

not allow Macy's to escape liability arising from this action. We

therefore reject Macy's contention. C. With

respect to the tort causes of action, plai ntiffs maintain that the

District Court erred in granting summary

judgment. As noted above, the District Court dismissed these claims

because it had rejected the predicate

upon which each claim was based, i.e., that Macy's offered the successful

participant the role of "Annie" on

Broadway. See Pacitti, 1998 WL 512938, at *4. Because we conclude that the

contract reasonably may

be interpreted to make such an offer, we reverse on these claims as well

and remand for further

proceedings.

III.

We now turn to plaintiffs' contention that the District Court abused its

discretion by limiting the scope of

discovery.8 Specifically, plaintiffs argue that the District Court's

discovery order precluded them from

uncovering facts relevant to their fraudulent misrepresentation claims.

Macy's asserts that review of this issue

is improper and, in the alternative, that the District Court's order was a

proper exercise of discretion. We

conclude that review is appropriate and that the District Court abused its

discretion.

A. As a preliminary matter, we must determine whet her we have

jurisdiction to review the discovery order.

Macy's argues that we lack jurisdiction because plaintiffs' notice of

appeal does not indicate that they are

appealing the discovery order. In their notice of appeal, plaintiffs

specify only the District Court's order of

August 19, 1998, granting summary judgment for Macy's. See App. at 235a.9

We

_________________________________________________________________

8. Citing Arnold Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564,

568 (3d Cir. 1986), and

Mannington Mills, Inc. v. Congoleum Indus., Inc., 610 F.2d 1059, 1073 (3d

Cir. 1979), plaintiffs also

argue that they were not given sufficient opportunity to conduct discovery

to withstand Macy's motion for

summary judgment and that therefore reversal of the summary judgment order

is required. In response,

Macy's contends that because plaintiffs failed to file a Rule 56(f)

motion, they have not preserved this issue

for appeal. Because we are reversing on the breach of contract claim, we

need not address this issue.

9. The notice of appeal provides, in full: conclude that plaintiffs'

notice of appeal from the District Court's

final judgment is sufficient to support the Court's earlier discovery

order.

Federal Rule of Appellate Procedure 3(c) states that the notice of appeal

must "designate the judgment,

order or part thereof appealed from." Fed. R. App. P. 3(c). However, we

liberally construe the

requirements of Rule 3(c). See Drinkwater v. Union Carbide Corp., 904 F.2d

853, 858 (3d Cir. 1990);

Williams v. Guzzardi, 875 F.2d 46, 49-50 (3d Cir. 1989). Thus, we have

stated:

[W]hen an appellant gives notice that he is appealing from a final order,

failing to refer specifically to earlier

orders disposing of other claims or other parties does not preclude us

from reviewing those orders.

Shea v. Smith, 966 F.2d 127, 129 (3d Cir. 1992) (citing Murray v.

Commercial Union Ins. Co., 782 F.2d

432, 434 (3d Cir. 1986)). And we have explained: "[S]ince . . . only a

final judgment or order is appealable,

the appeal from afinal judgment draws in question all prior non-final

orders and rulings." See Drinkwater,

904 F.2d at 858 (exercising jurisdiction over unspecified order because

finality doctrine barred plaintiff from

appealing that order until after the entry of final judgment) (citing

Elfman Motors, Inc. v. Chrysler Corp., 567

F.2d 1252, 1253 (3d Cir. 1977) (per curiam)); see also Polonski v. Trump

Taj Mahal Assocs., 137 F.3d

139, 144 (3d Cir.), cert. denied, 119 S. Ct. 66 (1998) ("[Liberal]

treatment is particularly appropriate

where the order appealed is discretionary and relates back to the judgment

sought to be reviewed.");

Tabron v. Grace, 6 F.3d

_________________________________________________________________

Notice is hereby given that Joanna Pacitti, a minor, by Joseph Pacitti and

Stella Pacitti, her parents and

guardians, plaintiffs in the above-named case, hereby appeal to the United

States Court of Appeal[s] for the

Third Circuit from an order granting summary judgment in favor of

defendant Macy's and Macy's East and

against plaintiffs which dismissed the action as to defendant Macy's and

Macy's East. The said Order hereby

appealed from was entered in this action on the 19th day of August, 1998.

App. at 235a. 147, 153 n.2 (3d Cir. 1993) ("[W]e construe notices of

appeal liberally as covering

unspecified prior orders if they are related to the specified order that

was appealed from."); Wright, Miller &

Cooper, Federal Practice & Procedure, Jurisdiction 3d § 3949.4 ("[A]

notice of appeal that names the final

judgment is sufficient to support review of all earlier orders that merge

in the final judgment under the general

rule that appeal from a final judgment supports review of all earlier

interlocutory orders.").

We have reviewed orders not specified in the notice of appeal where: (1)

there is a connection between the

specified and unspecified order, (2) the intention to appeal the

unspecified order is apparent, and (3) the

opposing party is not prejudiced and has a full opportunity to brief the

issues. See Polonski, 137 F.3d at

144 (exercising jurisdiction over order granting attorney's fees even

though notice of appeal specified only

the order granting summary judgment); Tabron, 6 F.3d at 153 n.2 (reviewing

order denying request for

counsel even though notice of appeal specified only the order granting

summary judgment).

Review is appropriate here. The discovery order is sufficiently related to

the order granting summary

judgment. The final judgment rule barred plaintiffs from appealing the

discovery order until the District Court

granted Macy's motion for summary judgment. Plaintiffs' notice of appeal

from the final judgment, therefore,

brought up for review the earlier interlocutory discovery order. Cf.

Drinkwater, 904 F.2d at 858; Polonski,

137 F.3d at 144; Tabron, 6 F.3d at 153 n.2; Wright, Miller & Cooper,

Federal Practice & Procedure,

Jurisdiction 3d § 3949.4. Moreover, Macy's had notice of plaintiffs'

intent to appeal the discovery order

since plaintiffs sought review of the entire judgment and argued the

merits of the discovery order in their

opening appellate brief. See Polonski, 137 F.3d at 144 (stating that "the

appellate proceedings clearly

manifest an intent to appeal"); see also Canady v. Crestar Mortgage Corp.,

109 F.3d 969, 974 (4th Cir.

1997) (noting that arguing merits of issue in opening appellate brief puts

appellee on notice as to that issue).

And finally, we discern no prejudice to Macy's. Accordingly, we have

jurisdiction. B. Having found that we

have jurisdiction to revie w this issue, we must next determine whether

the District Court abused its

discretion in limiting discovery to "what promises, if any, were made by

defendant prior to and at the final

audition . . . in New York City that the person selected at that audition

would appear in the role as Annie."

App. at 38a. Plaintiffs contend that the District Court abused its

discretion by unduly limiting discovery to

preclude them from obtaining information relevant to their fraudulent

misrepresentation claims. We review

the District Court's discovery order for abuse of discretion. See Arnold

Pontiac-GMC, Inc. v. General

Motors Corp., 786 F.2d 564, 568 (3d Cir. 1986).

The Federal Rules of Civil Procedure provide, in pertinent part:

Parties may obtain discovery regarding any matter, not privileged, which

is relevant to the subject matter

involved in the pending action, whether it relates to the claim or defense

of the party seeking discovery or to

the claim or defense of any other party. . . . The information sought need

not be admissible at the trial if the

information sought appears reasonably calculated to lead to the discovery

of admissible evidence.

Fed. R. Civ. P. 26(b)(1). It is well recognized that the federal rules

allow broad and liberal discovery. See

In re Madden, 151 F.3d 125, 128 (3d Cir. 1998) ("Pretrial discovery is . .

. `accorded a broad and liberal

treatment.' ") (citing Hickman v. Taylor, 329 U.S. 495, 507 (1947)); see

also Wright, Miller & Marcus,

Federal Practice & Procedure, Civil 2d § 2007 ("The rule does allow broad

scope to discovery and this has

been well recognized by the courts.").

To succeed on a claim for fraudulent misrepresentation under Pennsylvania

law, plaintiffs must establish the

following elements: (1) a misrepresentation, (2) a fraudulent utterance,

(3) an intention to induce action on

the part of the recipient, (4) a justifiable reliance by the recipient

upon the misrepresentation, and (5) damage

to the recipient as a proximate result. See Banks v. Jerome Taylor &

Assocs., 700 A.2d 1329, 1333 (Pa.

Super. Ct. 1997). To prove these elements, plaintiffs must demonstrate

that Macy's fraudulently

misrepresented that the successful participant would perform as "Annie" on

Broadway, that it did so with the

intent to induce participation in the Search, and that Joanna relied to

her detriment upon the

misrepresentation.

Plaintiffs seek production of the following: (1) Macy's communications

with, and relationship to, the

producers regarding the terms of the contract that the producers intended

to offer the successful contestant

and (2) the pecuniary benefit Macy's received as a result of the Search.

See Appellants' Br. at 12, 24. This

information could shed light on Macy's knowledge that it could not offer a

Broadway opening and its

motives for failing to limit the offer accordingly. Thus, we conclude that

the discovery sought here is directly

relevant to the subject matter of this dispute.

We also find it noteworthy that Macy's submitted its contract with the

producers in support of summary

judgment. As previously noted, the federal rules permit discovery of,

among other things, "any matter, not

privileged, which is relevant to the subject matter involved in the

pending action, whether it relates to the

claim or defense of the party seeking discovery or to the claim or defense

of any other party . . . ." Fed. R.

Civ. P. 26(b)(1) (emphasis added).

Macy's asserts that the only relevant representations are "those to which

plaintiffs were . . . privy" and "upon

which plaintiffs could have reasonably relied." Appellee's Br. at 34. This

"what they don't know can't hurt

them" argument is unconvincing. The fact that plaintiffs were not privy to

the information that Macy's

possessed when Joanna relied on its representations and participated in

the Search forms the very basis of

plaintiffs' fraudulent misrepresentation claims.10

_________________________________________________________________

10. Plaintiffs also argue that the District Court erred in limiting the

number of depositions. In light of our

disposition here, the District Court on remand can reconsider whether

additional depositions are necessary

to effectuate plaintiffs' discovery needs with respect to their fraudulent

misrepresentation claims. Only if one

of the factors in Federal Rules of Civil Procedure 26(b)(2) is present

should the Court limit the number of

depositions. See Fed. R. Civ. P. 26(b)(2) (setting forth situations in

which courts may limit the number of

depositions). Accordingly, we conclude that the District Court erred in

limiting discovery.

IV.

For the reasons discussed above, we reverse the grant of summary judgment

on all claims and remand for

further proceedings in accordance with this opinion. We also reverse and

remand for plaintiffs to conduct

discovery consistent with this opinion.

A True Copy: Teste:

Clerk of the United States Court of Appeals for the Third Circuit 20

FOOTNOTES