Original Jurisdiction in case of Greulich, Inc. and Acme Fabricators and Welders, Inc. v. Commonwealth of Pennsylvania, Department of Transportation and Bureau of Materials, Testing and Research.
James C. Larrimer, Dougherty, Larrimer & Lee, for petitioners.
Mark F. Brancato, with him Stuart M. Bliwas, Assistant Attorneys General, Robert W. Cunliffe, Deputy Attorney General and Edward G. Biester, Jr., Attorney General, for respondent.
Judges Crumlish, Jr., Mencer, DiSalle, Craig and MacPhail. President Judge Bowman and Judges Wilkinson, Jr., Rogers and Blatt did not participate. Opinion by Judge Craig. Judge DiSalle did not participate in the decision in this case.
Presently before us are the Department of Transportation's (department) preliminary objections, in the nature of a demurrer and motion to strike, to a suit filed in our original jurisdiction by petitioners Greulich, Inc. (Greulich) and Acme Fabricators and Welders, Inc. (Acme) seeking injunctive and declaratory relief against the department. The department has also filed a motion to dismiss because of mootness.*fn1 In addition, petitioners have filed a motion for summary relief pursuant to Pa. R.A.P. 1532(b) which has been ordered consolidated for argument and disposition with the department's preliminary objections.
We take the facts as alleged in the petition for review. The present controversy arose out of a contract entered into by Acme and the department in March of 1979. Under the terms of the agreement, Acme was to replace, on a state bridge, an existing wooden deck
with an open steel beam bridge deck. Acme then contracted with Greulich for the manufacture of the steel decking. Using, in part, steel bars from West Virginia, Greulich constructed the decking according to specifications, at its manufacturing plant in Harmar Township, Allegheny County. After the completion of the steel decking, the department notified Greulich that it was rejecting the deck because Greulich had incorporated steel bars from West Virginia in the decking's construction in violation of the following contract provision between Acme and the department:
Administrative Code Section 523, 71 P.S. 203
The bidder (contractor) is prohibited from supplying to the Commonwealth or using on or in the project any supplies, equipment or materials manufactured in the States of Alaska, Arkansas, Hawaii, Montana, New Mexico, Wyoming, West Virginia, Commonwealth of Puerto Rico, or Texas. (Emphasis added.)
As indicated, this provision was derived from Section 523 of The Administrative Code of 1929 (Code), Act of April 9, 1929, P.L. 177, as amended, added by Section 3 of the Act of June 1, 1931, P.L. 350, 71 P.S. § 203, which reads as follows:
It shall be unlawful for any administrative department, board, or commission to specify for or permit to be used in or on any public building or other work erected, constructed, or repaired at the expense of the Commonwealth, or to purchase, any supplies, equipment, or materials manufactured in any state which prohibits the specification for or use in or on its public buildings or ...