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J.A. & W.A. HESS v. HAZLE TOWNSHIP (06/04/73)

decided: June 4, 1973.

J.A. & W.A. HESS, INC.
v.
HAZLE TOWNSHIP



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of J.A. & W.A. Hess, Inc. v. Hazle Township, No. 812 March Term, 1969. Transferred to the Commonwealth Court of Pennsylvania from the Superior Court of Pennsylvania, August 14, 1972.

COUNSEL

Frank D. Llewellyn, with him George I. Puhak, for appellant.

Thomas L. Kennedy, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 9 Pa. Commw. Page 410]

This case involves an action for money damages instituted by Appellant Hess, Inc. against Hazle Township, Luzerne County.

In 1966, Hazle Township advertised for bids for 100 tons, more or less, of No. 1B crushed gravel to be applied to the Township streets. Appellant submitted a bid which proposed a unit price of $3.50 per ton of material and a resultant total contract price of $350.00. Upon award, Appellant filed a bond in the amount of $175.00 representing 50% of the contract price.

Appellant alleges, and the evidence tends to establish, that it subsequently delivered over 6,000 tons of stone to the township. It then claimed payment of $23,625.00.

The township demurred to the alternative bases of the action which were (1) recovery on the express contract; and (2) recovery on the theory of quantum meruit.

[ 9 Pa. Commw. Page 411]

The lower court overruled the demurrer on the express contract issued but sustained the demurrer on the quantum meruit cause of action.

Trial was held before Olzewski, J., sitting without a jury, and Hess was awarded a verdict in the amount of $350.00. After a motion for new trial was denied by the lower court en banc, Hess appealed to us.

At the outset, it is important to note that Hess did not appeal the lower court's ruling on the quantum meruit issue*fn1 and so it is not before us. Appellant presses the express contract as the basis of recovery and it is settled that a right of recovery in quasi-contract cannot be born of a suit on an express contract. Irvine Estate, 372 Pa. ...


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