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HENRY F. ACCHIONE AND ACCHIONE & CANUSO v. CITY PHILADELPHIA AND THOMAS DURKIN & SONS (01/29/79)

decided: January 29, 1979.

HENRY F. ACCHIONE AND ACCHIONE & CANUSO, INC., APPELLANTS
v.
CITY OF PHILADELPHIA AND THOMAS DURKIN & SONS, INC., APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Henry F. Acchione and Acchione & Canuso, Inc. v. City of Philadelphia and Thomas Durkin & Sons, Inc., No. 4763 May Term, 1977.

COUNSEL

Gary S. Turetsky, with him Joseph H. Jacovini, and, of counsel, Dilworth, Paxson, Kalish, Levy & Kauffman, for appellants.

Barbara R. Axelrod, Assistant City Solicitor, with her Sheldon L. Albert, City Solicitor, and James M. Penny, Jr., Deputy City Solicitor, for appellee, City of Philadelphia.

Hugh J. Hutchison, with him, of counsel, Obermayer, Rebmann, Maxwell & Hippel, for appellee, Thomas Durkin & Sons, Inc.

Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 40 Pa. Commw. Page 215]

Henry F. Acchione and Acchione & Canuso, Inc. (Acchione) appeal an order entered by the Court of Common Pleas of Philadelphia County denying their exceptions to a decree nisi which denied their request for injunctive relief against the City of Philadelphia (City).*fn1 We affirm.

On April 1 and 8, 1977, the City advertised for bids on an airfield drainage project at the Philadelphia International Airport. All prospective bidders, including Acchione, were supplied with qualification questionnaires. Pursuant to Section 17-101(1) of the Philadelphia Code, prospective bidders were instructed that they were required to file the questionnaire at least one week prior to the date set for the opening of bids. Acchione, through its bonding agent, mailed the questionnaire within the prescribed time limit. The City, however, did not receive Acchione's qualification questionnaire and therefore did not open Acchione's bid on the date set for the opening of bids, May 2, 1977. Upon opening the other bids, Thomas Durkin & Sons, Inc., was determined to be the lowest responsible bidder.*fn2 On May 3, the City received a questionnaire from Acchione which had been executed after discovering, on May 2, that the original questionnaire had not been received. The City has refused to open Acchione's

[ 40 Pa. Commw. Page 216]

    bid, however, because the completed questionnaire was not filed in accordance with Section 17-101(1) and the bidding instructions.

Acchione instituted this suit in equity seeking to compel the City to open its bid and to enjoin the City from awarding the contract to a bidder other than Acchione. Injunctive relief was denied and this appeal followed.

Acchione argues that it did comply with the requirements of Section 17-101(1) when it mailed its ...


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