## Facts

- Olan Mills operated portrait studios and used telemarketing to solicit customers.
- An Olan Mills representative called S. Allen Schreiber to sell photographic services.
- Schreiber sent a letter demanding that Olan Mills stop calling and remove him from its telemarketing list.
- The letter further stated that any future telemarketing calls would be treated as acceptance of an agreement to pay Schreiber for “listening services” at $100 per hour (with additional charges).
- Schreiber later received two additional telemarketing calls from Olan Mills.
- Schreiber sent Olan Mills an invoice for $479 based on the pricing stated in his letter.
- Olan Mills refused to pay, and Schreiber sued for breach of contract.

## Issues

1. Whether a recipient of unsolicited telemarketing calls can create an enforceable contract by stating that any future calls will constitute acceptance of a fee-based agreement for “listening services.”
2. Whether the complaint alleged facts showing objective mutual assent and consideration sufficient to form a contract under Pennsylvania law.

## Decision

- The Superior Court of Pennsylvania affirmed the dismissal of the complaint on preliminary objections in the nature of a demurrer.
- The court held that no enforceable contract was formed by Schreiber’s letter and Olan Mills’s subsequent calls.
- The letter was treated as a cease-and-desist communication, not a commercial offer that a reasonable telemarketer would understand as inviting acceptance by placing another call.
- The alleged facts did not establish a meeting of the minds that Olan Mills assented to pay for Schreiber’s “listening services.”
- The complaint also failed to plead a bargained-for exchange supporting consideration for the claimed “listening services.”

## Legal Principles

- Contract formation requires objective mutual assent; a party cannot unilaterally impose contractual obligations by declaring that another party’s future conduct will constitute acceptance.
- An “offer” is assessed objectively: the question is whether a reasonable recipient would understand the communication as proposing a bargain and inviting acceptance on specified terms.
- Continued conduct consistent with an actor’s separate purpose (e.g., soliciting sales) does not, without more, manifest assent to an unrelated obligation announced by the other party.
- Consideration requires a bargained-for exchange; courts will not treat contrived or unbargained-for “services” as consideration merely because one party labels them as such.

## Conclusion

The court concluded that continued telemarketing calls after a cease-and-desist letter did not create a contract to pay for “listening services” because the pleaded facts showed neither objective assent to such a bargain nor a cognizable bargained-for exchange, so dismissal for failure to state a claim was proper.


Schreiber v. Olan Mills, 627 A.2d 806 (Pa. Super. Ct. 1993)