No. 418 January Term, 1977, Appeal from the Order of the Commonwealth Court of Pennsylvania at No. 31 T.D. 1972, Reaffirming, After Remand, the Order and Judgment of the Court of Common Pleas of Luzerne County at No. 812 March Term, 1969.
Frank D. Llewellyn, Summit Hill, George I. Puhak, Hazleton, for appellant.
Thomas L. Kennedy, Hazleton, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Former Justice Pomeroy did not participate in the decision of this case.
This appeal results from an action in assumpsit brought by appellant, J. A. & W. A. Hess, Inc., (Hess), against appellee, Hazle Township. Appellant alleged that it had not been paid for over 6,000 tons of gravel delivered to the appellee and used in the construction of township roads during August, September, and October of 1966. The complaint alleged that payment for the gravel in the amount of $23,528.75, plus interest, was due under an agreement existing between appellant and the appellee. Alternatively, the appellant sought recovery on a quasi-contract basis seeking restitution to prevent unjust enrichment of the appellee. The trial court awarded judgment on the contract for $350, but denied any relief on the quasi-contract claim. On appeal, the Commonwealth Court affirmed. 9 Pa. Commw. 409, 305 A.2d 404 (1976). This Court then granted appellant's
petition for allowance of appeal. After consideration of the appeal, the matter was remanded to the Commonwealth Court. Hess v. Hazle Township, 465 Pa. 465, 350 A.2d 858 (1975). The Commonwealth Court after reconsideration following remand again affirmed the trial court. 26 Pa. Commw. 379, 363 A.2d 844 (1976). Appellant's petition for allowance of appeal from that order was granted, and the appeal is now before us.
The appellant contends that the trial court erred in denying recovery on a quasi-contract theory. We agree.
In 1966, appellee advertised for bids for 100 tons, more or less, of gravel to be used in the township roads. Appellant was the successful bidder at a unit price of $3.50 per ton. Subsequently, during the summer of 1966 appellee requested and appellant delivered over 6,000 tons of gravel. Upon the advice of the appellee's solicitor, the appellee refused to pay for the gravel. Essentially, payment on the contract has been refused because of the significant difference between the amount of gravel specified in the advertisement -- 100 tons, more or less, and the amount actually requested -- over 6,000 tons. Because of this significant discrepancy, the trial court and the Commonwealth Court concluded that the gravel delivered could not come under the contract calling for 100 tons, more or less.
Appellant's offer to present evidence of past practices to establish that large quantities of gravel had, in previous years, been delivered and paid for by the township under similar circumstances was rejected by the trial court. The Commonwealth Court concluded that even had such evidence been presented, appellant was not entitled to recover on the contract because, although some flexibility is permitted in a "more or less" contract, the differences here between the amount of gravel stated in the contract and the amount of gravel actually delivered was too great to permit payment under the contract without ignoring the bidding and contract provisions of the Second Class Township Code. 26 Pa. Commw. at 383, n.2, 363 A.2d at 846, n.2. We ...