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MODANY v. STATE PUBLIC SCHOOL BUILDING AUTHORITY (03/16/65)

decided: March 16, 1965.

MODANY, APPELLANT,
v.
STATE PUBLIC SCHOOL BUILDING AUTHORITY



Appeals from decree of Court of Common Pleas of Dauphin County, Equity Docket No. 2454, No. 512 Commonwealth Docket, 1960, in case of Gabriel Modany, trading and doing business as Modany Brothers, and American Casualty Company of Reading v. State Public School Building Authority.

COUNSEL

Edward E. Knauss, III, with him Metzger, Wickersham & Knauss, for appellants.

James W. Evans, for State Public School Building Authority, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell and Mr. Justice Musmanno dissent.

Author: O'brien

[ 417 Pa. Page 41]

Gabriel Modany, trading and doing business as Modany Brothers, and the American Casualty Company, brought an action in equity to enjoin the State Public School Building Authority from proceeding on Modany's bid for the construction of a school building, and to declare the Modany bid null and void.

The State Public School Building Authority advertised for bids for the construction of the Baden Economy Joint School District in Beaver County. The advertisement provided the instructions and conditions of the job and, in addition thereto, provided the manner of submitting the bid and the manner of withdrawal of the bid. The instructions provided that a bid could be withdrawn when the bidder or his agent would personally appear at the Authority office with a written request to withdraw, prior to the time set for the opening of the bids.

On October 4, 1960, appellant, Modany, had completed the preparation of his bid. At 5:10 o'clock, E.D.S.T. on October 4, 1960, Albert Modany, the son of and agent of Gabriel Modany and the person responsible for the preparation of the bid, delivered the bid, together with a bid bond in the penal sum of $13,000,*fn1 to the architect for the job, at his office in Ellwood City, with instructions to deliver the bid to the Authority's office in Harrisburg. This the architect did, at 9:45 o'clock, E.D.S.T. on October 5, 1960. Sometime during the evening of October 4, after the bid had been delivered to the architect, Albert Modany discovered that he had omitted an approximate $120,000 item

[ 417 Pa. Page 42]

    from the bid. Albert Modany, then being unable to contact Mr. McCandless, the architect, by telephone, made no further effort to withdraw the bid until about three hours later, when he returned from visiting his wife in the hospital. He then sent a telegram to the authority at its main office in Harrisburg to the attention of the architect. This telegram was sent at 9:20 P.M., E.D.S.T. on October 4, 1960. The telegram stated that the bid was to be withdrawn, but did not mention a mistake had been made. At 10:05 A.M., E.D.S.T. on October 5, 1960, twenty five minutes prior to the opening of the bids, the contents of the telegram were made known to the counsel for the Authority, the executive director of the Authority, and an employee of the Authority authorized to receive bids. At 10:30 A.M., E.D.S.T. October 5, 1960, all of the bids were opened. The appellant's bid was $211,700. The next lowest bids were $342,800 and $346,495. The appellant's bid being then the lowest, his bid was accepted.

The appellant then sought to enjoin the Authority from acting on his bid and to have the bid declared null and void, because it had been withdrawn. The lower court had before it for consideration the effectiveness of the withdrawal of Modany's bid and whether rescission of the contract should be decreed if the bid withdrawal was not effective. The court denied relief and dismissed the complaint and that adjudication was affirmed by the court en banc. This appeal followed.

On appeal from a final decree in equity, the findings of fact of the chancellor, affirmed by the court en banc, have the force and effect of a jury verdict and will not be reversed if there is adequate evidence to sustain them and if they are not premised on erroneous inferences and deductions or an error of law. Schwartz v. Urban ...


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