Appeal, No. 205, March T., 1959, from order of Court of Common Pleas of Fayette County, Sept. T., 1958, No. 245, in case of C. S. Yoder v. School District of Luzerne Township. Order affirmed.
David E. Cohen, with him Joseph W. Ray, Jr., and Ray, Buck & John, for appellant.
Samuel J. Feigus, for appellee.
Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES.
This appeal is from an order of the Court of Common Pleas of Fayette County in an assumpsit action wherein the court sustained appellee's preliminary objections and dismissed appellant's complaint.
C. S. Yoder, the appellant, instituted an assumpsit action against the Luzerne Township School District, Fayette County, to recover for work done and materials and supplies furnished in connection with the paving of certain school house playgrounds of the School District.
Yoder, a contractor, was the low bidder for such work and, on June 10, 1952, entered into a contract with the School District for 4379 square yards of 6inch base, the contract price being $29,882.45. The contract provided that no extra work was to be done unless ordered in writing. Without complying with the provisions of the Public School Code respecting advertisement and without the benefit of a resolution of the School Board, the area surfaced by Yoder was increased to 10,240 square yards and the base changed from a 6inch to a 4inch base. These changes were made pursuant to oral directions of the school directors who, singly or in groups, visited the job sites from time to time.
Yoder's original bid was $29,882.45. The final bill which he tendered to the School District was in the amount of $61,370 reduced by a credit for the use of 4inch instead of 6inch base, the net bill being $44,174.60. Yoder has already been paid $29,174.60 and now seeks to recover the balance of $15,000.
The School District filed preliminary objections to the complaint upon the grounds that (1) the facts alleged in the complaint did not set forth a contract for the extra work upon which the claim was based, and (2) the facts in the complaint disclosed that the extra work was not done in conformity with the provisions of the Public School Code of 1949, P.L. 30, and amendments thereto which ...