Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of In Re: Lease of Coal on County Lands situate in Hempfield Township, Westmoreland County, Pennsylvania, No. 2618 of 1975.
Richard H. Galloway, with him Ackerman & Galloway, and Edward P. Zamprelli, for appellant.
Irving L. Bloom, Solicitor, for appellee, County of Westmoreland.
Richard F. Pohl, for intervenor.
Judges Mencer, Rogers and DiSalle, sitting as a panel of three. Opinion by Judge Rogers. Judge DiSalle dissents.
[ 36 Pa. Commw. Page 494]
Fred Fiore, owner of Fiore Coal Company, has appealed for the second time from an order of the Court of Common Pleas of Westmoreland County denying the prayer of a petition of the County Commissioners for the court's approval of a proposed lease to him of county owned lands for coal mining purposes. On the occasion of the earlier appeal we reversed an order of the court below refusing approval of a proposed lease to Fiore and remanded the record for an evidentiary hearing. In Re: Lease of Coal on County Lands Situate in Hempfield Township, Westmoreland County, Pennsylvania, 25 Pa. Commonwealth Ct. 530, 360 A.2d 849 (1976). In response to our order the court below conducted evidentiary hearings and thereafter again refused approval of the proposed lease. That action is the subject of this appeal.
[ 36 Pa. Commw. Page 495]
In the opinion accompanying our order when the matter was last before us, we set forth what then appeared to be the circumstances. Since a hearing has been conducted and an evidentiary record made, we will here recite the facts surrounding this lamentable imbroglio. The Commissioners of Westmoreland County by public advertisement invited the submission on or before March 18, 1975 of bids for the mining of coal by strip mining and by deep mining on county land. The advertisement required that bids should be submitted in the form of two alternates for payment: (1) payment based on tonnage of coal removed, or (2) payment based upon a percentage of the per ton sale price of the coal by the contractor. The invitation included the following provision which caused some, if not most, of the trouble which ensued:
Investigation as to the location and amount of coal on the premises shall be at the cost of the bidder. If, after investigation, the highest responsible bidder determines, at that bidder's option, that it is not economically feasible to mine the said coal, the County Commissioners shall excuse that bidder and offer the bid to the next highest responsible bidder, and so on.
Nine bids were submitted for the work. The two with which we are here concerned were those of the appellant Fiore in the amount of $5.11 per ton of coal or 21% of the per ton sale price of coal, and of Weiss Brothers Leasing, Inc. in the amount of $5.27 per ton of coal or 13.17% of the per ton sale price of the coal. On April 24, 1975 the commissioners made an award to Weiss Brothers of the right of "drilling and test boring on the site." The county solicitor testified that it was his understanding of the April 24, 1975 action of the commissioners that all of the bidders were to be accorded the right to perform drilling and test boring operations. Weiss Brothers, however, adduced
[ 36 Pa. Commw. Page 496]
testimony to the effect that the county solicitor advised them to draw up a lease under which they might mine the coal. A lease was prepared by Weiss Brothers and submitted to ...