notwithstanding the verdict we believe the jury could have found from the evidence that someone from Defendant Blue Shield made a promise to pick up the bid proposal at the airport and then later refused to do so. However, the legal issues in this case become quite complex.
Basically the Plaintiff's argument is that if the Defendant Blue Shield had kept its promise to pick up the bid proposal, the proposal would have arrived in a timely manner for the bid opening. The position of the Plaintiff in the companion case to this one is that even If the bid proposal had not been picked up by Defendant Blue Shield, the proposal would still have timely arrived if Defendant Allegheny's airport manager had not refused to release the bid to anyone but Defendant Blue Shield or the consignor himself. The theory of the Plaintiff further is that If the bid had timely arrived, it would have been the lowest. Plaintiff further asserts that if all of these things had come to pass it would have been approved for the contract and therefore any damages recovered should equal Plaintiff's Projected profit on the contract.
The first hurdle for the Plaintiff in presenting its case against Defendant Blue Shield was to establish that a promise was made by an agent of Blue Shield who had the authority to do so. Whether or not the promise was made was clearly for the jury. Plaintiff, as was mentioned earlier in this memorandum, presented testimony through its President, Warren Wilson, that he contacted Joel Gebert, an employee of Blue Shield, and that he obtained Gebert's assurance that he would have the bid proposal picked up at the Allegheny Airlines ticket counter in Harrisburg on the morning of August 18, 1975, in time for the Blue Shield 12:00 noon bid deadline in Camp Hill. Gebert denied that he made such a commitment.
The Court instructed the jury that Defendant Blue Shield could only act through its agents and instructed the jury that it would have to determine if Gebert was an agent of Defendant Blue Shield authorized to made such a promise, as a principal is not generally liable on account of acts committed or representations made outside the apparent scope of the agent's authority. Revere Press, Inc. v. Blumberg, 431 Pa. 370, 246 A.2d 407 (1968). Generally, and especially where there is a dispute of fact, the question of an agent's authority is for the jury. Norton v. Railway Express Agency, 412 F.2d 112 (3d Cir. 1969); Anzenberger v. Nickols, 413 Pa. 543, 198 A.2d 309 (1964); P.L.E. Agency § 178.
Testimony developed that Gebert received all calls from prospective bidders and was the sole contact pursuant to the request for bids. The calls were not referred to anyone else, although in the actual solicitation for bids the name of Ray Eichelberger appeared and it was indicated that Eichelberger was the Blue Shield agent designated to receive the bids. Agency requires no special formalities such as a writing, and arises when one authorizes another expressly or impliedly, to act as his agent. Falconer v. Mazess, 403 Pa. 165, 168 A.2d 558 (1961). As between a principal and third persons, rights and liabilities are not limited by the agent's express or implied authority but rather by his apparent authority. PLE Agency § 95. The test has been stated to be whether a man of ordinary prudence, diligence and discretion would believe and have a right to believe that the agent has the authority he pretends to exercise. Apex Financial Corp. v. Decker, 245 Pa.Super. 439, 369 A.2d 483 (1976); Pollock Industries, Inc. v. General Steel Castings Corp., 203 Pa.Super. 453, 201 A.2d 606 (1964).
The Defendant Blue Shield asserts that there is an essential flaw in the authority of Gebert to act as an agent in that to do what Gebert is alleged to have said he would do would be an improper preference. The federal procurement regulations which were applicable to this bid submission provided:
"1-2.301 Responsiveness of bids.