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S. KANE & SON v. CITY PHILADELPHIA AND KULZER ROOFING (05/05/83)

decided: May 5, 1983.

S. KANE & SON, INC., APPELLANT
v.
CITY OF PHILADELPHIA AND KULZER ROOFING, INC., APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of S. Kane & Son, Inc. v. City of Philadelphia and Kulzer Roofing, Inc., No. 36 February Term, 1981.

COUNSEL

Israel Packel, with him Ethel S. Barenbaum, for appellant.

Jill A. Douthett, Deputy City Solicitor, with her Janet Stern Holcombe, Assistant City Solicitor, and Alan J. Davis, City Solicitor, for appellees.

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

Author: Macphail

[ 74 Pa. Commw. Page 173]

S. Kane & Son, Inc. (Kane) has brought this appeal from an order of the Court of Common Pleas of Philadelphia County sustaining the City of Philadelphia's (City) preliminary objection to a complaint in equity filed by Kane, dismissing the complaint and transferring the matter to the law side of the court.

[ 74 Pa. Commw. Page 174]

On August 27, 1980, the City solicited bids for the construction of a new roof on the Fern Rock Shop of the Southeastern Pennsylvania Transportation Authority.*fn1 The bid specification (Bid No. 4222) for the project specified the use of either "KMM by Koppers, Inc" or "CRM by Grace and Co." as the roofing membrane. Bid No. 4222 also provided that the contract "shall be awarded to the lowest responsible bidder of the method [KMM or CRM] deemed most cost effective by the City." The City received a number of bids for the project, with Kane's bid, using KMM, the lowest at $889,227. The City, however, awarded the contract to Kulzer Roofing, Inc. (Kulzer). Kulzer's bid was $906,271 using CRM. The City contended that Kulzer's bid would be more cost effective over the life of the roof.

Kane thereafter filed a complaint in equity against the City and Kulzer seeking to enjoin them from entering into a contract "with respect to any bidding documents, presently outstanding" for the Fern Rock Shop roof. Kane also sought "a determination that an award of a contract under the outstanding bidding documents . . . can be made only to Kane as the lowest responsible bidder," along with such other relief as the court may deem just and proper.

After a meeting with Judge Gelfand of the Common Pleas Court on February 2, 1981, the parties entered into a stipulation whereby the City agreed not to enter into a contract with Kulzer pursuant to Bid No. 4222.*fn2 The parties further stipulated to a general continuance, with a hearing to be held upon the request of any party. Subsequently, the City cancelled Bid No. 4222 and revised its bid specifications to exclude the

[ 74 Pa. Commw. Page 175]

KMM roofing material which Kane originally proposed to use. Kane thereafter requested a hearing before the court of common pleas.

The City then filed a motion to dismiss on the grounds that Kane's claims were moot, and also preliminary objections which 1) challenged Kane's standing to sue, 2) contended that Kane failed to state a cause of action and 3) claimed that Kane had an adequate remedy at law. The court, on September 23, 1981, sustained the third objection only*fn3 and dismissed the complaint ...


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