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DANIEL H. ZURENDA v. COMMONWEALTH PENNSYLVANIA (09/18/79)

decided: September 18, 1979.

DANIEL H. ZURENDA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, A. L. HYDEMAN, SECRETARY OF THE DEPARTMENT OF COMMUNITY AFFAIRS AND CAMBRIA COUNTY REDEVELOPMENT AUTHORITY, RESPONDENTS



Original jurisdiction in case of Daniel H. Zurenda v. Commonwealth of Pennsylvania, A. L. Hydeman, Secretary of the Department of Community Affairs and Cambria County Redevelopment Authority.

COUNSEL

Paul L. Zeigler, with him Goldberg, Evans & Katzman, for petitioner.

Carol Porell Cocheres, Assistant Attorney Generel, with her Gerald Gornish, Acting Attorney General, for respondents.

Judges Rogers, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 46 Pa. Commw. Page 68]

Petitioner Daniel H. Zurenda (Zurenda) filed a petition with this Court seeking equitable and injunctive relief against the Department of Community Affairs (Department) and the Cambria County Redevelopment Authority (Authority).*fn1 Specifically, Zurenda seeks a judgment ordering the Department and the Authority (1) to terminate a group site maintenance contract in the flood stricken area of Johnstown

[ 46 Pa. Commw. Page 69]

    which they previously entered into with Interstate Manufacturing and Leasing Company (Interstate), (2) to refrain from further awarding any such contract to Interstate, and (3) to award the group site maintenance contract to Zurenda. The Department has filed a demurrer and preliminary objections challenging Zurenda's standing to sue, the jurisdiction of the Court to hear this matter, and Zurenda's failure to join an indispensable party. We will consider the objections seriatim.*fn2

In ruling on preliminary objections, we accept as true all well and clearly pleaded facts as well as inferences fairly deducible therefrom, but not conclusions or averments of law. Department of Public Welfare v. Adams County, 30 Pa. Commonwealth Ct. 164, 165-66, 373 A.2d 143, 144 (1977); Snelling v. Department of Transportation, 27 Pa. Commonwealth Ct. 276, 280, 366 A.2d 1298, 1301 (1976).

The Department first argues that Zurenda's petition does not state a cause of action upon which relief can be granted because it fails to allege that the Department engaged in fraudulent or collusive conduct in awarding the contract to Interstate rather than to Zurenda. The Department applies an incorrect standard in challenging the adequacy of the petition.

Until recently, the Courts of this Commonwealth had held that where a public authority had the right to reject any and all bids notwithstanding a requirement that the contract be awarded to the lowest responsible bidder, the rejection of all bids and a request for rebidding could be overturned only by showing that the authority had engaged in fraudulent or collusive conduct. See Highway Express Lines, Inc. v. Winter, 414 Pa. 340, 345, 200 A.2d 300, 302 (1964). Without directly overruling this principle, our Supreme

[ 46 Pa. Commw. Page 70]

Court recently cast doubt upon its continuing validity in Lutz Appellate Printers, Inc. v. Commonwealth, Pa. , 403 A.2d 530 (1979). More to the point, however, where the authority is to be guided by the lowest responsible bidder concept and the authority does not reject all bids but does award the contract to the lowest responsible bidder, the decision may be overturned for reasons other than fraudulent or collusive conduct. In Lutz Appellate Printers, Inc. v. Commonwealth, supra, for example, the Court ruled that Lutz could proceed on the theory that the Commonwealth committed an error of law in awarding a contract to a bidder other than Lutz. Here, Zurenda alleges that the Department committed an abuse of discretion in ...


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