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ALLEGHENY CONTRACTING INDUSTRIES v. FLAHERTY (07/28/72)

decided: July 28, 1972.

ALLEGHENY CONTRACTING INDUSTRIES, INC.
v.
FLAHERTY, ET AL., OFFICERS OF THE CITY OF PITTSBURGH



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Allegheny Contracting Industries, Inc., a Corporation, v. Peter F. Flaherty, Mayor, William Edkins, Director of Public Works, and Douglas Long, Director of Department of Supplies, Individually, and in Their Official Capacities as Mayor of the City of Pittsburgh, Director of Public Works of the City of Pittsburgh, and Director of Department of Supplies of the City of Pittsburgh, No. 3310 July Term, 1971. Transferred from the Supreme Court of Pennsylvania to the Commonwealth Court of Pennsylvania, March 17, 1972.

COUNSEL

George Shorall, Assistant City Solicitor, with him Ralph Lynch, Jr., City Solicitor, for appellants.

Owen B. McManus, Jr., with him James F. Malone, III, and Brandt, McManus, Brandt & Malone, for appellee.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Kramer.

Author: Kramer

[ 6 Pa. Commw. Page 165]

This is an appeal from an Order of the Court of Common Pleas of Allegheny County overruling and dismissing, in part, the Preliminary Objections filed by the named appellants (hereinafter referred to collectively as "City" and individually by their respective titles).

On June 29, 1971, the Allegheny Contracting Industries, Inc. (ACI) filed a Complaint in Mandamus alleging that on three occasions the City had advertised for bids for the furnishing and delivering of asphalt bituminous materials for the calendar year 1971. On each occasion the City had rejected all bids. Following the submission by ACI of a bid in May of 1971, the Mayor advised ACI that its name was being stricken from a list*fn1 of responsible bidders, and that all future

[ 6 Pa. Commw. Page 166]

ACI bids would be returned unopened. Thereafter, the City again advertised for bids for said products. In response to such advertising, ACI submitted its sealed bid in proper form accompanied with the appropriate bond and filed same within the prescribed time. At the opening of the bids publicly in Council Chambers, the Mayor opened three bids and read the contents aloud. However, without opening the bid of ACI, the Mayor directed the secretary in attendance to return the unopened bid to ACI. ACI further alleges that the action of the City in refusing to open the bid of ACI acted in an "arbitrary and capricious" manner contrary to law. The Complaint further described such action by the Mayor as a "gross abuse of discretion", and alleges conduct by the City constituting "bad faith" which has and will irreparably damage ACI. ACI prayed for a judgment against the City commanding it to open the bid submitted by ACI on June 28, 1971 (which unopened bid according to the Complaint was still in the possession of the City upon the filing of this action), and requested that the City be directed to readvertise for bids.*fn2

The Complaint was amended to delete the name of the deceased Director of the Department of Supplies for the City, and to substitute the name of the new Director. On July 16, 1971, the City filed Preliminary Objections in the nature of a Demurrer and also raised questions related to the subject matter jurisdiction of the lower court. After argument, the lower court sustained certain of the Preliminary Objections (not here in issue), overruled the remaining Preliminary Objections, and granted the City the right to file an answer. In its appeal the City contends that the lower court

[ 6 Pa. Commw. Page 167]

    erred in overruling its Preliminary Objections because as the City views it, whether ACI is the "lowest responsible bidder" is within the discretionary powers of the Mayor under the applicable statute, and therefore not a proper subject for a mandamus action.

That statute is the Act of March 7, 1901, P.L. 20, art XV, Section 1.1, as amended, 53 P.S. 23308.1, ...


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