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AMERICAN TOTALISATOR COMPANY v. CHARLES S. SELIGMAN (12/22/76)

decided: December 22, 1976.

AMERICAN TOTALISATOR COMPANY, INC., PETITIONER
v.
CHARLES S. SELIGMAN, ACTING SECRETARY OF REVENUE, COMMONWEALTH OF PENNSYLVANIA, ET AL., RESPONDENTS, CONTROL DATA CORPORATION, PARTY RESPONDENT



Original jurisdiction in case of American Totalisator Company, Inc. v. Milton Lopus, Secretary of Revenue; Charles S. Seligman, Deputy Secretary of Revenue; Lynn R. Nelson, Executive Director, Bureau of State Lotteries; Department of Revenue and Bureau of State Lotteries, and Control Data Corporation, intervening respondent.

COUNSEL

Alan M. Bredt, Deputy Attorney General, with him Donald J. Murphy, Deputy Attorney General, and Linda S. Lichtman, Deputy Attorney General, for respondent.

Frank A. Sinon, with him R. Stephen Shibla; Rhoads, Sinon & Reader ; and of counsel, Rogers, Hoge & Hills, for party respondent.

Perry S. Bechtle, with him Harold Greenberg, David Gutin, and Cohen, Shapiro, Polisher, Shiekman and Cohen, for petitioner.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Concurring Opinion by Judge Blatt. Judge Mencer joins in this concurring opinion. Dissenting Opinion by President Judge Bowman. Judge Crumlish, Jr. joins in this dissent.

Author: Rogers

[ 27 Pa. Commw. Page 641]

American Totalisator Company, Inc. (AmTote) has filed an Amended Petition for Review naming as respondents the Commonwealth's Secretary of Revenue, a Deputy Secretary of Revenue, the Executive Director of the Bureau of State Lotteries, the Department of Revenue and the Bureau of State Lotteries. Control Data Corporation (CDC) has intervened as a respondent. AmTote seeks an order of this Court enjoining the original respondents from entering into a contract for computer services and equipment for the establishment of what amounts to a State sponsored numbers game with CDC, or with any person other than the petitioner, and an order directing the original respondents to negotiate with and award the contract to it, AmTote.

The original respondents and CDC have filed preliminary objections to the Amended Petition for Review essentially raising two objections, the first, that AmTote lacks capacity or standing to sue, and the second, that AmTote's Amended Petition does not set forth a cause of action. The preliminary objections being, in our opinion, without merit, they will be overruled.

[ 27 Pa. Commw. Page 642]

AmTote avers in its Amended Petition for Review that it is a substantial taxpayer of the Commonwealth; and that it and a number of other firms were invited by the Bureau of State Lotteries to "participate in a competitive bidding proposal."*fn1 The Amended Petition also contains portions of the Bureau's request for proposal which informed bidders that the contract will be awarded pursuant to "laws, rules and regulations relating to the award of public contracts in this State" and that the contract will be awarded "in conformity with the concept of the lowest responsible bidder."

The substantive averments of the Amended Petition are that only AmTote and CDC bid; that each was first required to submit cost information as a percentage of weekly gross dollars wagered; that AmTote's cost information was given on an effective fee basis and that CDC's proposal was set forth on a cumulative or incremental fee basis; that AmTote's proposed costs as first bid were lower than CDC's; that the respondent Deputy Secretary of Revenue and the Executive Director of the Bureau of State Lotteries disclosed the cost information contained in both bids and thereafter requested both bidders to express their bids in dollar figures; that CDC, knowing the amount of AmTote's bid, changed its, CDC's, bid to show a lower cost than it had first bid and a lower cost than AmTote's first and better bid; and that the original respondents chose CDC as the successful bidder.

Standing or Capacity

The respondents, original and intervening, characterize AmTote as a mere disappointed bidder without standing. They ...


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