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METROPOLITAN MESSENGER SERVICE v. COMMONWEALTH PENNSYLVANIA (03/25/74)

decided: March 25, 1974.

METROPOLITAN MESSENGER SERVICE, PLAINTIFF,
v.
COMMONWEALTH OF PENNSYLVANIA, HELENE WOHLGEMUTH, SECRETARY OF THE DEPARTMENT OF PUBLIC WELFARE, BERNARD P. BERTOLINO, ADMINISTRATOR OF THE DEPARTMENT OF PUBLIC WELFARE AT THE PHILADELPHIA COUNTY BOARD OF ASSISTANCE, AND PUROLATOR COURIER CORPORATION, DEFENDANTS



Original jurisdiction in case of Metropolitan Messenger Service v. Helene Wohlgemuth, Secretary of the Department of Public Welfare, Bernard P. Bertolino, Administrator of the Department of Public Welfare at the Philadelphia County Board of Assistance and Purolator Courier Corporation.

COUNSEL

Richard W. Berlinger, with him, of counsel, Malis, Tolson & Malis, for plaintiff.

Darius G. C. Moss, Assistant Attorney General, with him Marx S. Leopold, Assistant Attorney General, and Israel Packel, Attorney General, for defendants Commonwealth and Commonwealth officials.

Thomas M. Kittredge and Lawrence I. Washor, for defendant corporation.

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

Author: Wilkinson

[ 12 Pa. Commw. Page 610]

In our original jurisdiction, plaintiff has filed a complaint in equity seeking to have this Court declare the bid of defendant, Purolator Courier Corporation, and the contract subsequently awarded thereon invalid; direct the bid of plaintiff be accepted and the contract awarded to plaintiff; order defendant, Purolator Courier Corporation, to account to plaintiff for loss of profits during the period Purolator Courier Corporation performed the contract; and grant the usual "all other relief."

Defendants, Helene Wohlgemuth, Secretary of Public Welfare, Bernard P. Bertolino, and the Department of Public Welfare, filed preliminary objections in the nature of a demurrer on the basis that the complaint,

[ 12 Pa. Commw. Page 611]

    together with a copy of defendant Purolator's bid (which was not attached to the complaint because plaintiff alleged it did not have a copy, but which was supplied by defendants and accepted by plaintiff), establishes that the contract was properly bid and properly awarded.

Defendant, Purolator Courier Corporation, filed preliminary objections raising the following questions: Demurrer on the basis that plaintiff, a disappointed bidder, does not have standing to ask for relief; equity does not have jurisdiction since money damages would be sufficient; and laches.

Since we must sustain the preliminary objections on the basis that the complaint does not state a cause of action, it is unnecessary to discuss or decide the other questions raised. Suffice it to say that on the question of standing, we refer to Judge Mencer's recent opinion in Altemose v. The Pennsylvania Higher Education Facilities Authority, 7 Pa. Commonwealth Ct. 596, 300 A.2d 827 (1973). On the questions of equity jurisdiction and laches, we refer to the opinion of Judge Herman, then of the Common Pleas Court of Dauphin County sitting as the Commonwealth Court, now of the U.S. District Court for the Middle District of Pennsylvania, in Service Supply Corp. v. Hornbeck, 86 Dauph. 44 (1966).

The essential facts as pled in the complaint and shown by defendant Purolator's bid are that plaintiff, during the period of July 1, 1972, through June 30, 1973, had a contract with the Department of Public Welfare to provide a check delivery service within the City of Philadelphia. The contract was being performed to the satisfaction of the Department of Public Welfare. The Department of Public Welfare requested bids for the performance of "said services" for the contract

[ 12 Pa. Commw. Page 612]

    period July 1, 1973, through June 30, 1974. Plaintiff submitted a bid. The only other bid submitted was from the defendant, Purolator Courier Corporation.

The Department of Public Welfare, in addition to supplying instructions for bidding and specifications for the services to be provided, supplied a form on which the bids were to be submitted. The form specified the district offices to which deliveries were to be made and from how many banks pickups were to be made. This was described as follows:

"Vendor to supply all necessary equipment, and personnel to pick up material on a daily basis at approximately one-hundred and six (106) Banks in Philadelphia and deliver the material to approximately thirteen (13) ...


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