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.
Frank D. Llewellyn, with him George I. Puhak, for appellant.
Thomas L. Kennedy, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer and Blatt. Judges Kramer and Rogers did not participate. Opinion by Judge Crumlish, Jr.
[ 26 Pa. Commw. Page 381]
In the case now before us, our Supreme Court has remanded the appeal of J.A. & W.A. Hess, Inc. (Hess) to us for a determination of three specific issues not addressed in our initial opinion in this matter, J.A. & W.A. Hess, Inc. v. Hazle Township, 9 Pa. Commonwealth Ct. 409, 305 A.2d 404 (1973).
Specifically, we have been asked to decide the following:
1. Whether Hess can properly assert a quasi-contractual (quantum meruit) recovery against Hazle Township (Township) in light of its delivery to Township of quantities of gravel in excess of a stated contractual approximation.
2. Whether the trial court erred in refusing to admit evidence of practice and usage of prior years under similar contracts between the parties.
3. Whether Hess is entitled to a recovery in excess of the $350.00 on the contract.
Initially, we note that the Supreme Court's opinion remanding this matter to us, J.A. & W.A. Hess, Inc. v. Hazle Township, Pa. , 350 A.2d 858 (1976), and outlining the three issues to which we must address ourselves, in reality, seeks to have us decide only two issues, to wit: the validity of the quantum meruit cause of action which, if valid, would of necessity dictate damages in excess of the $350.00 contract price, the question then resolving to the extent to which damages exceed $350.00, and secondly, the purported error of refusing prior practice and custom evidence.
It is within these parameters that we shall decide the case ...