NO. 23 MIDDLE DISTRICT APPEAL DOCKET, 1982, Appeal from Order of Commonwealth Court dated July 12, 1982 at No. 1065 C.D. 1982
Stanley A. Uhr, Sidney J. Smolinsky, Philadelphia, for appellant.
Gerald Gornish, M. Ellen Moffett, Philadelphia, for appellee Holt Hauling et al.
Delancey W. Davis, Deputy Atty. Gen., for Attorney General and Pennsylvania Liquor Control Board.
Ralph G. Wellington, Philadelphia, for appellee Dennis Trucking.
Roberts, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., did not participate in the consideration or decision of this case. McDermott, J., joins parts I-iv of this opinion and files a concurring opinion. Roberts, C.j., files a concurring opinion in which Zappala, J., joins.
Appellant, XPress Truck Lines, Inc., (XPress) has filed its notice of appeal, as of right, directly to this Court from Commonwealth Court's order dismissing what appellant calls an action addressed to the original jurisdiction of that court*fn1 in a dispute between it and appellees over the making, validity and continuing enforceability of a contract for delivery services allegedly awarded to it by the Pennsylvania Liquor Control Board. For contract actions against the Commonwealth, our legislature has provided an exclusive legal remedy before the Board of Claims, which is generally adequate without resort to equitable jurisdiction
for injunction or specific performance. Therefore, at oral argument we raised, sua sponte, the question of our jurisdiction of this direct appeal.*fn2 Having thoroughly studied the matter we now hold that the appellant's action for specific performance of its asserted contract with appellee Liquor Control Board was not properly addressed to Commonwealth Court's original jurisdiction and, therefore, we are not required to consider the propriety of its dismissal order on direct appeal. Nevertheless, considering the tortuous procedural history of this dispute, we believe we should treat appellant's notice of appeal and questions on appeal as a petition for allocatur, addressed to our discretionary power of review. As such, we grant the petition and affirm the order of Commonwealth Court dismissing both appellant's suit for specific performance and its ancillary motion for a preliminary injunction against the Liquor Control Board's action in permitting the other appellees to perform the services appellants claimed were the subject of its asserted contract.*fn3 Such dismissal, however, is without prejudice to appellant's right to pursue its exclusive legal remedy, for breach of any valid and enforceable contract that it may
have made with the Liquor Control Board for delivery services, in its pending action before the Board of Claims.
At its meeting on October 21, 1981 the Pennsylvania Liquor Control Board decided not to renew appellee Holt Hauling & Warehousing Systems, Inc.'s contract, for warehousing and delivery services at the Liquor Control Board's southeastern distribution center near Philadelphia, upon expiration of the contract by its own terms on April 30, 1982. Holt was properly notified of the Board's decision on January 27, 1982. The Liquor Control Board then solicited bids on a cost per case basis for such delivery and warehouse services by issuing an invitation for bids to some sixty-nine companies.
In response only three bidders came forward. They were appellant, appellee Holt, and one United Paper Services Company. These three bids were publicly opened on March 1, 1982. Appellant's bid was apparently low, appellee Holt's high, while that of United Paper Services' fell somewhere between the other two bids. However, before any contract was awarded a labor problem arose. Both appellant and United Paper Services concluded they would be unable to resolve that problem in a manner enabling them to perform the contract offered in their bids. They so advised the Liquor Control Board. The Board then rejected all bids on March 17, 1982, decided to operate the warehousing portion of the contract with its own personnel and entered into competitive negotiations for a delivery service contract with appellant and United Paper Services. The Board deliberately excluded appellee Holt from these negotiations.
The justification given for Holt's exclusion was two-fold: first, its submitted bid on the proposal for both warehousing and delivery services, showing a 36% increase over its current charges, was so high that its participation in negotiations would not be fruitful and second, its recent history of
instituting litigation against the Liquor Control Board precluded an ongoing advantageous relationship.
The Liquor Control Board informed appellee Holt by letter of March 23, 1982 that all bids were rejected, but did not notify it of the negotiations on changed terms with the other two bidders. Holt learned of this new round of negotiations and its exclusion from them when it examined the minutes of the March 17th meeting. Thereupon, it requested permission to participate. On April 2, 1982 its request was refused and on April 6, 1982 it sought relief by filing an original suit in equity against the Liquor Control Board in Commonwealth Court. Holt Hauling and Warehousing Systems, Inc. v. Pennsylvania Liquor Control Board, 760 C.D.1982. In that suit appellee Holt sought a preliminary injunction against continuation of the negotiations without its participation. Appellant was not a party to that action although it later sought to intervene and, indeed, was a party to the stipulation which effectively ended it.
By the time Holt filed its equity suit negotiations between the other original bidders and the Liquor Control Board had apparently reached a head. The next day, April 7, 1982, the Board formally decided to award the delivery services contract to appellant. A staff member for the Liquor Control Board's executive director notified XPress of the award by telegram. However, the formalities and statutory approvals normally incident to the execution of such government contracts delayed execution by the Liquor Control Board. On May 4, 1982, with the contract awarded to XPress and apparently the subject of all necessary approvals, but still unexecuted by the Liquor Control Board itself, Commonwealth Court, without participation of ...