decided: March 16, 1977.
LUTZ APPELLATE PRINTERS, INC., APPELLANT,
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PROPERTY AND SUPPLIES, ET AL.
Kates, Livesey & Edelstein, Lewis Kates, Philadelphia, for appellant.
Howard M. Snyder, Deputy Atty. Gen., for appellees, Milton J. Shapp, Governor, and Grace M. Sloan, State Treasurer.
Frank P. Lawley, Jr., Chief Counsel, Robert P. Meehan, Deputy Counsel, Harrisburg, for appellee, Robert P. Casey, Auditor-General.
John L. Sweezy, Harrisburg, for appellees, Comm., Dept. of Property & Supplies and Ronald G. Lench, Secretary.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case.
[ 472 Pa. Page 31]
OPINION OF THE COURT
This is an appeal from a decree of the Commonwealth Court denying appellant's petition for a preliminary injunction.*fn1 Appellant, Lutz Appellate Printers, Inc. [Lutz], alleged that it was the lowest responsible bidder for a public printing contract and sought a preliminary injunction restraining the Pennsylvania Department of Property and Supplies [Department] and individual defendants named in their official capacities*fn2 from awarding the contract to anyone other than the lowest responsible bidder.
In August, 1975, the Department issued invitations and solicited bids for a contract for the printing of legal briefs and records. The bids were opened on September
[ 472 Pa. Page 323]
, 1975. Although Lutz' bid of $54,667.50 was the low bid, it was not accepted. Section 523 of the Administrative Code of 1929*fn3 prohibits the award of public contracts to bidders who use materials manufactured in states which require that work done in fulfillment of their public contracts use materials manufactured in their own states. Lutz conducts business in the Commonwealth, pursuant to a Certificate of Authority issued by the Secretary of State, and is a Pennsylvania taxpayer, but its manufacturing facilities are in New Jersey. The Department concluded that Lutz' manufacturing facilities were in a state which prohibits the award of public contracts against bidders using materials not produced in that state, and that therefore Lutz was not a qualified bidder.*fn4 The Department awarded the contract to the next lowest bidder.
On September 30, 1975, Lutz filed a complaint in the Commonwealth Court seeking declaratory and injunctive relief, and a petition for a preliminary injunction. A hearing on the petition for preliminary injunction was held on October 22, 1975, before Judge Crumlish, who denied the petition on October 23, 1975.*fn5
[ 472 Pa. Page 33]
Preliminarily, we reject the Department's argument that Lutz has no standing to maintain this action. At the hearing on the petition for a preliminary injunction, Lutz introduced proof that it pays taxes in Pennsylvania. A taxpayer has standing to enjoin the award of a public contract to anyone other than the lowest responsible bidder. See Helig Brothers Co. v. Kohler, 366 Pa. 72, 76 A.2d 613 (1950). Lutz is also a disappointed bidder, but this does not affect its standing as a taxpayer. Id. Similarly, Lutz' request for declaratory relief that it is the lowest responsible bidder does not alter its standing as a taxpayer to enjoin the award of a public contract.*fn6
In determining whether Lutz is entitled to relief, we note the limited scope of our review of a decree denying a preliminary injunction:
"It has long been the rule in this Court that on an appeal from a decree, whether granting or denying a preliminary injunction, we will not inquire into the merits of the controversy, but will, instead, examine the record only to determine if there were any apparently reasonable grounds for the action of the court below."
Pennsylvania Public Utility Commission v. Allegheny County Port Authority, 433 Pa. 495, 499, 252 A.2d 367,
[ 472 Pa. Page 34369]
(1969); accord Intraworld Industries, Inc. v. Girard Trust Bank, 461 Pa. 343, 354, 336 A.2d 316, 322 (1975); Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corp., 450 Pa. 367, 370-71, 301 A.2d 816, 818 (1973); Zebra v. Pittsburgh School District, 449 Pa. 432, 436-37, 296 A.2d 748, 750 (1972).
The record reveals apparently reasonable grounds for denying the preliminary injunction. Lutz' manufacturing facilities are in New Jersey. A New Jersey statute, governing the printing of legislative journals and official reports and documents, provides: "All work performed in fulfillment of any contract made under the provisions of this chapter shall be done within the limits of this State."*fn7 This statute apparently does not apply, however, to the purchase of legal briefs and records, the materials which are the subject of the contract for which Lutz bid here.
Pennsylvania law prohibits the award of public contracts for materials manufactured in states which limit the award of public contracts to in-state manufacturers:
"It shall be unlawful for any administrative department, board, or commission to specify for or permit to be used in or on any public building or other work erected, constructed, or repaired at the expense of the Commonwealth, or to purchase, any supplies, equipment, or materials manufactured in any state which prohibits the specification for or use in or on its public buildings or other works or the purchase of supplies,
[ 472 Pa. Page 35]
equipment, or materials not manufactured in such state."*fn8
This statute could reasonably be interpreted to apply whenever a state prohibits the use of materials manufactured in other states in some of its public contracts. This, of course, is not the only possible interpretation. It might also be argued that it does not apply unless the state prohibits use of materials manufactured in other states in all its public contracts, or at least in contracts for the particular material involved in the Pennsylvania contract. We need not presently resolve this issue, however. We need only conclude that, in the absence of any cases interpreting this provision, an apparently reasonable interpretation of the statute makes it applicable when a state prohibits the use of materials manufactured in other states in some of its public contracts. If the statute is so interpreted, Lutz is not a qualified bidder. Thus, there are "apparently reasonable grounds" to affirm the Commonwealth Court's denial of a preliminary injunction.