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Rejected "Annie" Gets a New Day - In Court
3rd Circuit lets case against Macy's over talent search winner
being 'dropped' in Broadway performance go to jury

by Shannon P. Duffy
The Legal Intelligencer
September 3, 1999

A jury must decide if Macy's promised the contestants in its national talent search that the winner would get the title role in the Broadway revival of "Annie" -- and is therefore liable to the Philadelphia girl who won, but was dumped from the show just prior to opening night -- the 3rd U.S. Circuit Court of Appeals has ruled.

The ruling in Pacitti v. Macy's overturns last year's decision by Chief U.S. District Judge James T. Giles that said Joanna Pacitti and her parents, Joseph and Stella Pacitti, had no contract claim against Macy's since they were told that the show's producers always had sole discretion to make casting changes.

Pacitti was 11 when she auditioned in King of Prussia and was chosen from among five finalists. She played the title role of Annie in a national tour that wended its way from Houston, Texas, to Hershey, Pa., with stops in St. Paul, Minn., Chicago, Baltimore and Boston.

But after belting out her role in more than 100 performances, Pacitti claims she was unceremoniously dropped from the cast and replaced by another girl just two weeks before the show opened on Broadway.

The Pacittis' lawyer, Albert C. Oehrle of Norristown, argued that the talent search for "Broadway's new Annie" was a contest and that the Broadway role was the prize. Pacitti won, he said, and was deprived of the prize.

But Giles disagreed, saying "a Broadway role is not comparable to other contest awards."

Joanna Pacitti was always expected to sign a standard Actor's Equity contract with the show's producers, Giles said, which explicitly stated that she could be replaced at any time.

On appeal, the Pacittis hired attorney Alfred W. Putnam Jr. of Drinker Biddle & Reath who argued that Judge Giles had improperly injected his own views into the case.

"The fact is that Macy's said nothing at all about an equity contract, not to mention the specific risk that the producers of the show would ultimately decide against using 'Broadway's New Annie' as 'Annie' once the show made it to Broadway," Putnam wrote.

"Judge Giles simply erred by substituting his own views of the case for the Pacittis' right to present their very different view to a jury," he wrote.

Now the 3rd Circuit has agreed with Putnam, saying Giles erred in finding that the contract Pacitti and her mother signed was unambiguous and made no promise of a Broadway debut.

U.S. Circuit Judge Samuel A. Alito found that "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."

Although Macy's insists it had no power to promise her the role and a Broadway debut, Alito found that the real question was whether Macy's made such a promise and the Pacittis reasonably understood it as a promise.

The only evidence that the producers retained the rights to reject any actor was in documents exchanged between Macy's and the producers -- and never seen by the Pacittis -- Alito found.

"We do not believe that Macy's role was so 'obvious' that it need not 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," Alito wrote. "Therefore, we conclude that it was reasonable for plaintiffs to believe that Macy's offered the starring role of 'Annie' on Broadway."

The Pacittis filed the suit against Macy's and Macy's East Inc., claiming they had explicitly promised a Broadway role to the winner of the nationwide "Annie Off" contest.

The suit against Macy's alleged fraudulent misrepresentation, breach of contract, equitable estoppel and breach of an implied covenant of good faith and fair dealing.

Macy's lawyer, Robert P. Joy of Boston's Morgan Brown & Joy, moved to dismiss the suit, arguing that Pacitti has no claim against the store, which merely agreed to hold a series of auditions.

Although the suit termed the talent search a "contest" in which the winner would be awarded the "prize" of a Broadway role, Joy insisted that the official application and rules made it very clear that the Macy's events were merely "auditions."

Judge Giles agreed with Joy, saying it was legally significant that the talent search papers repeatedly used the term "audition" and that it was therefore unreasonable of the Pacittis to expect that the contest promised a guaranteed Broadway debut.

But Judge Alito, in an opinion joined by U.S. Circuit Judge Morton I. Greenberg and visiting Senior U.S. District Judge William H. Stafford of the Northern District of Florida, found that the Pacittis had a real argument that a Broadway role was promised as the prize in numerous contest papers and advertisements.

As for the use of the word "audition," Alito said Putnam had offered a reasonable alternative interpretation when he argued in his brief that "the word 'audition' refers to the process a contestant must undergo before she can 'win' the prize.... It follows, one would think, that the girl selected after the 'final audition' has won something more than an 'audition'."

Alito found that it was also not unreasonable for the Pacittis to believe that Macy's had the power to offer the winner the starring role since the advertisements described it as "the world's largest store."

The ads, he said, could have been interpreted by some readers as suggesting that the talent search was being conducted as a joint effort of Macy's and the show's producers.