Thomas D. Caldwell, Jr., Harrisburg, for appellant.
J. Leonard Langan, Harrisburg, for appellees.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen,*fn* JJ. Nix, J., concurs in the result. Roberts, J., filed a dissenting opinion. Manderino, J., did not participate in the decision of this case.
In the summer of 1972, the appellant, Central Storage and Transfer Co., and officers of the Pennsylvania Liquor Control Board (hereinafter "the Board") began negotiations for the leasing of space in a warehouse appellant had under construction. The officers of the Board informed appellant that the Board would lease a substantial portion of the warehouse if it were constructed to meet the Board's needs. Shortly thereafter, on September 8, 1972, the appellant granted the Pennsylvania Department of Property and Supplies (now the Department of General Services) a ninety-day option to lease warehouse space for the use of the Board. The option incorporated the terms and specifications that the Board's officers had given appellant and, subsequent to its execution, appellant altered its plans and completed construction of the building in conformance with those specifications.
On November 1, 1972, the Board approved the option to lease. The Department of Property and Supplies, however, refused to enter into the lease, and the Board then refused to occupy the premises.*fn1 After unsuccessful efforts to renegotiate
with the Commonwealth and to lease the premises to another party, appellant filed a claim with the Board of Claims seeking reimbursement from the Liquor Control Board of the monies it had expended in altering the warehouse to suit the Board's needs.
The Auditor General and State Treasurer, sitting as the Board of Claims, "settled" the claim against the Liquor Control Board and awarded appellant damages. Following the denial of a petition for resettlement, the Liquor Control Board filed a petition for review with the Board of Finance and Revenue, which reversed the Board of Claims and "resettled" the claim in favor of the Liquor Control Board. Appellant then filed a petition for review with the Commonwealth Court. After hearing the case de novo, that Court entered an order dismissing appellant's petition, and appellant brought this appeal.
Appellant contends that its right to recovery is clearly set forth in the Restatement (Second) of Contracts § 90,*fn2 and that the Commonwealth Court, therefore, erred in dismissing its petition for review. We disagree; even assuming that appellant has made out a claim under § 90 of the Restatement (Second) of Contracts,*fn3 that theory of recovery
may not be advanced against the Liquor Control Board under the ...