Appeal, No. 73, Jan. T., 1954, from decree of Court of Common Pleas No. 4 of Philadelphia County, March T., 1953, No. 2554, in case of Ellis Bevilacqua v. Joseph S. Clark, Jr., Mayor of Philadelphia et al. Decree affirmed.
I. Finkelstein, for appellant.
James A. Montgomery, Jr., Assistant City Solicitor, with him Abraham L. Freedman, City Solicitor and Max W. Gibbs, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The question raised by this appeal is: may a municipal corporation extend a concession license agreement for a term certain without public competitive bidding when the original license agreement had been made after such bidding and contained a clause that it could be extended for a limited period? The court below decided that it could.
Plaintiff-appellant, the successful bidder in 1951 and unsuccessful bidder in 1952 for the operation of the golf driving range concession located at the Cobb's Creek Golf Course, seeks, by a bill in equity, to cancel the license granted to defendant McGettigan to operate the driving range. The concession is more fully described as the "Professional Shop and Golf Driving Range -- Men's Club House, Cobb's Creek Golf Course"
in Fairmount Park, Philadelphia. The Mayor of the City of Philadelphia, the Procurement Commissioner, the Commissioners of Fairmount Park, and the City of Philadelphia were all joined as defendants by the plaintiff who brought the suit in his capacity as a taxpayer.
The proposals submitted, pursuant to public advertisement, by all bidders who were bidding for the operation of the concession for the year 1952, contained the following clause: "Where licensee considers that it is desirable or necessary to make permanent improvements to the concession structure, he shall submit a proposal to the Commission with a plan of the improvements and a statement of the actual cost thereof. If the Commission approves the construction of such permanent improvements, it will negotiate a supplemental agreement with licensee, providing that the license shall be extended for additional yearly terms not to exceed four years, depending upon the nature and cost of the improvements; and further providing that, if the Commission should elect to terminate the license within such extended period, it will pay to licensee such proportion of the actual cost of such improvements as the unexpired term bears to the total term of the license. In the event the license remains in effect for the full term agreed upon, no payment shall be due licensee."
The Procurement Commissioner granted or issued to defendant, the highest bidder, a license to operate the concession for the year 1952. The license contained the same provision set forth in the proposal as above stated. On May 21, 1952 the defendant submitted in writing to the Park Commission suggested permanent improvements to the concession structure to be made at his own expense. The Park Commissioners ...