87 Pa. Commw. 374

Clemson Corporation, a corporation, Appellant v. McKeesport Area School District, a municipal corporation, Appellee.

Argued November 13, 1984,

before Judges Williams, Jr. and Doyle and Senior Judge Barbieri, sitting as a panel of three.

*375Marvin J. Apple, with him, Martha O. Wolf, for appellant.

Lawrence J. O’Toole, with him, Robert P. Costello, Costello é O’Toole, for appellee.

February 1, 1985:

Opinion by

Judge Barbieri,

Appellant, Clemson Corporation, appeals here from an en banc decision of the Court of. Common Pleas of Allegheny County which dismissed Appellant’s exceptions to a non-jury verdict in favor of Appellee, McKeesport Area School District (District), against Appellant in its action in assumpsit for loss of profits.

Appellee needed stoker coal to heat its buildings and invited bids from the public. On September 27, 1979, Appellant submitted a bid to supply Appellee with the coal for $64.50 per ton. The bid specifications required that the coal meet all Allegheny County Smoke Control standards and,, as summarized by the court of common pleas, be “mechanically cleaned, free burning, double-screened, size %" x 1 y8, less than 1% low ash.” On October 15, 1979, the McKeesport Area School Board (Board) met and announced that only two bids had been received and that Appellant’s bid of $64.50 per ton was the lower of the two. The Board resolved “that the bid for coal be awarded to Clemson Coal Co. at its bid of $64.50 per ton; provided .the analysis submitted by the Clemson Coal Co. is approved by the Dept, of Air Pollution of the Co. of Allegheny.” (Department.) After Appellant’s submission of the laboratory analysis, Max Zeman, a member of the Department, determined that Appellant’s coal was too high in ash content. Since the next highest bid, that of Junction Corporation, Appellee’s *376previous supplier of coal, was $9.50 per ton higher than Appellant’s bid, Appellee attempted to contact Appellant to suggest that Appellee try a load of Appellant’s coal which might be found within specifications. Several employees of Appellee testified that they each attempted to contact Appellant, but that they reached a mechanical answering service which identified itself as the National Frame Company. Having heard nothing from Appellant, Appellee purchased coal for the remainder of the heating season from Junction Corporation.

According to the testimony of Morry Eosecrans, the President of Appellant, upon learning that Appellant was the lowest bidder Mr. Eosecrans purchased coal to be sold to Appellee, and he later sold the coal at a loss. Appellant subsequently brought an action in the Court of Common Pleas of Allegheny County against Appellee for loss of profits. Following a non-jury verdict in favor of the defendant, Appellee, the court of common pleas, en banc, dismissed Appellant’s exceptions to the verdict.

Appellant initially contends that, by virtue of the Board’s resolution, it had a contract to supply Appellee’s coal needs.1 However, the bid specifications provided, inter alia, that the coal had to meet Allegheny County pollution standards and that the coal had to be under one percent in low ash content. Indeed, the Board’s resolution to accept the bid of Appellant, contained the condition that the Department give its approval of the analysis submitted by Appellant. Since the Department was unable to approve the analysis *377submitted because of the high ash content of the coal, no enforceable contract was formed between the parties.2 In this connection, we find that the case of Francis v. Luitweiler, 72 Pa. D. & C. 2d 582 (1975), relied upon by Appellant is totally inapposite, since Francis’ bid was in accordance with the specifications.

Appellant’s next contention, that Section 807.1 of the Public School Code3 places on Appellee the obligation to accept the lowest bid of a responsible bidder and that Appellant is therefore entitled to damages measured by its loss of profits,4 is certainly with*378out merit in this ease. In view of our holding, previously expressed, that there was no contractual obligation created in favor of Appellant, we need not consider or resolve this issue. We note, however, that Appellee did signify acceptance of the lowest bid, although we think quite properly contingent on Appellant satisfying the specifications which the bid required it to meet.5

Since we find no error by the court of common pleas in dismissal of Appellant’s exceptions to the verdict against it, we will affirm.6

*379Order.

Now, February 1, 1985, tbe judgment of the Court of Common Pleas of Allegheny County, dated June 8, 1983, is hereby affirmed.

Clemson Corp. v. McKeesport Area School District
87 Pa. Commw. 374

Case Details

Name
Clemson Corp. v. McKeesport Area School District
Decision Date
Feb 1, 1985
Citations

87 Pa. Commw. 374

Jurisdiction
Pennsylvania

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