Appeal, No. 43, Jan. T., 1962, from order of Court of Common Pleas of Bradford County, Jan. T., 1961, No. 1, in equity, in case of Floyd B. Schrader, Jr., trading as Floyd B. Schrader and Son, and Borough of Towanda v. Robert M. Heath and Robert Kinsley. Order reversed.
George A. Spohrer, with him Andrew S. Moscrip, and Hourigan, Kluger & Spohrer, for appellant.
Romeyn F. Culver, with him John J. Griffin, and Culver and Griffin, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE O'BRIEN
The chancellor dismissed plaintiffs' complaint in equity, sustaining defendants' preliminary objections on the ground that the plaintiffs have an adequate
remedy at law. This appeal by Floyd B. Schrader, Jr., trading as Floyd B. Schrader and Son, one of the plaintiffs, is from the order of the court dismissing the complaint. The Borough of Towanda did not appeal.
The sole question in this appeal is whether plaintiff has an adequate remedy at law. The complaint avers the existence of a written contract between appellant and the Borough of Towanda for removal and disposal of garbage for a three year period commencing August, 1960. There is the averment of a written contract, dated May, 1957, between appellees and the borough for collection and disposal of garbage by appellees for a three year period. In this agreement is set forth: "8. This agreement is to be for a period of three years from the date of execution and is to be renewed providing the Contractor has faithfully performed all the conditions of the agreement and Ordinance No. (blank) of the Borough, such agreement and right of renewal is based on the fact that the Contractor has purchased new equipment to comply with the terms and conditions of the ordinance hereinabove set forth and that a shorter term than three hears with the right of renewal would be a financial burden upon said contractor."
The complaint further avers, inter alia, the following: the service performed by Heath was not in accordance with the contract and enumerated the violations; the borough advertised for bids for a new contractor and both appellant and Heath submitted bids and appellant being low bidder was awarded the contract; the appellees claim an automatic renewal of their contract and have continued to transport and dispose of garbage as heretofore; the appellant is proceeding with work on the disposal site and has purchased equipment designed to handle garbage in accordance with his contract with the borough; and appellees have continued with garbage disposal work in competition with appellant.
Attached to the complaint is a copy of the ordinance regulating garbage disposal containing the following pertinent provisions: "Section 3. No person, except the contractor designated as herein provided, shall collect garbage or refuse from any other person for conveyance to the Borough Sanitary Landfill, nor shall any person or persons, except the aforementioned contractor, haul any garbage or refuse from any other person within the Borough of Towanda or from any point within such Borough to any place or location outside the Borough limits. Provided, however, the prohibitions contained in this section shall not apply to any person who shall haul his own garbage or refuse, having first provided himself with a proper conveyance and container in which garbage and refuse can be conveyed in such a manner as not to be a source of annoyance or unpleasant odors and so as not to leak, ...