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J. A. & W. A. HESS v. HAZLE TOWNSHIP (01/29/76)

decided: January 29, 1976.

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



COUNSEL

George I. Puhak, Frank D. Llewellyn, Hazleton, for appellant.

Thomas L. Kennedy, Hazleton, for appellee.

Jones, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., did not participate in the consideration or decision of this case. O'Brien and Nix, JJ., concur in the result.

Author: Manderino

[ 465 Pa. Page 466]

OPINION

This appeal results from an action of assumpsit brought by appellant, J. A. & W. A. Hess, Inc., against appellee, Hazle Township. In its complaint filed in the trial court, appellant alleged that it had not been paid for over 6,000 tons of gravel delivered to the Township and used in the construction of Township roads during August, September, and October of 1966. The complaint alleged

[ 465 Pa. Page 467]

    that payment for the gravel, in the amount of approximately $23,500, was due under an "agreement" existing between appellant and the Township. This portion of the complaint was labeled "First Cause of Action." Alternatively, the complaint alleged that "if no agreement existed in fact or law," the appellant was entitled to recover the fair market value of the gravel delivered at the request of the Township Supervisors. Appellant alleged that the fair market value of the gravel was approximately $23,500. This portion of the complaint was labeled "Alternative Cause of Action."

The Township filed preliminary objections demurring to the appellant's complaint alleging that the complaint was "insufficient in law" and did not "state a valid cause of action." The appellee alleged that a demurrer should be sustained to both that portion of appellant's complaint labeled "First Cause of Action," and to that portion of appellant's complaint labeled "Alternative Cause of Action." After the filing of appellant's answer to the preliminary objections, the trial court, on July 7, 1969, ordered:

". . . [Township's] Preliminary Objections . . . and Demurrer to the First Cause of Action are overruled. [Township's] Demurrer to plaintiff's Alternative Cause of Action is sustained and the Alternative Cause of Action is dismissed. [Township] is directed to file a responsive pleading in accordance with the Rules of Civil Procedure."

The case was then tried non-jury, and appellant was awarded $350. Judgment was entered on July 5, 1972. The court en banc denied appellant's motion for a new trial, and on appeal the Commonwealth Court affirmed the decision of the trial court. Appellant's petition for allowance of appeal to this Court was then granted.

Appellant raises three issues in this appeal. First, it contends that the trial court erred in ruling that recovery on the contract ...


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