R. & B. Builders an injunction preventing the defendant from awarding a contract to anyone other than the plaintiff was affirmed. The action was clearly designated by the Supreme Court of Pennsylvania as a "taxpayer's action in equity", 415 Pa. at 51, 202 A.2d at 83, and the Court made clear that the statutory "lowest responsible bidder" requirement was "solely for the protection of the taxpaying public." 415 Pa. at 52, 202 A.2d at 83. Ogden states quite clearly that under Pennsylvania law "a disappointed bidder has no standing to request the judicial award of a public contract." 11 Pa. Commw. at 440, 315 A.2d at 332. It is clear, therefore, that under the law of Pennsylvania a disappointed bidder does not have any legally recognized interest in the award of a municipal contract.
This Court is aware that several federal courts, including the Third Circuit, have accorded standing to an unsuccessful bidder to challenge a federal contract award. Merriam v. Kunzig, 476 F.2d 1233 (3d Cir.), cert. denied, 414 U.S. 911, 94 S. Ct. 233, 38 L. Ed. 2d 149 (1973); B.K. Instrument, Inc. v. United States, 715 F.2d 713 (2d Cir. 1983). But see Peoples Gas, Light & Coke Co. v. United States Postal Service, 658 F.2d 1182, 1193 n.7 (7th Cir. 1981); Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S. Ct. 869, 84 L. Ed. 1108 (1940). However, the Supreme Court of Pennsylvania has been consistent in holding that a disappointed bidder has no interest in the award of a public contract and may challenge it only as a taxpayer. This holding is dispositive of the plaintiff's due process claims. We note that jurisdiction in this case has not been bottomed on the existence of federal regulations or on the expenditure of federal funds. See Three Rivers, 502 F. Supp. at 1132 (cases discussing standing to bring claims based on federal procurement statutes "inapposite" to determination of the existence of a Fourteenth Amendment deprivation).
Since the Pennsylvania cases granting taxpayers the right to challenge municipal contracts create no property interest in disappointed bidders, and since the existence of such a property interest cannot properly be derived from the regulations and specifications governing the procurement process in light of the Pennsylvania courts' long and consistent refusal to recognize such an interest, the plaintiffs have failed to allege the existence of a constitutionally-protected property interest. As a result, their due process claims must be dismissed.
The plaintiffs also claim that the actions of the School District and the individual Board member defendants deprived them of equal protection of the laws, in violation of the Fourteenth Amendment. The function of the equal protection clause "is to measure the validity of classifications created by state laws." Parham v. Hughes, 441 U.S. 347, 358, 99 S. Ct. 1742, 1749, 60 L. Ed. 2d 269 (1979). Since the plaintiffs have not alleged that the defendants have impinged upon a fundamental right or discriminated against a suspect class, their equal protection challenge can succeed only if they show the existence of a legislative classification not rationally related to legitimate public ends. Murillo v. Bambrick, 681 F.2d 898, 901 (3d Cir.), cert. denied, 459 U.S. 1017, 103 S. Ct. 378, 74 L. Ed. 2d 511 (1982).
The first task in evaluating an equal protection claim under the rational relation test is to "identify with particularity the precise classification alleged to be irrational." Murillo, 681 F.2d at 906. The plaintiffs' brief in opposition to the defendants' motion to dismiss, at 19, identifies the classification they challenge as that between "the class of lowest responsible bidders who receive the contracts to which they are entitled under state law and the class of lowest responsible bidders who, through no fault of their own, are denied the contracts to which they are entitled." An equal protection claim fails when it "at most amounts to an allegation that state law was misapplied in [an] individual case." Short v. Garrison, 678 F.2d 364, 368 (4th Cir. 1982). The Supreme Court has made clear that the misapplication of state law alone does not constitute invidious discrimination in violation of the equal protection clause; "were it otherwise, every alleged misapplication of state law would constitute a federal constitutional question." Beck v. Washington, 369 U.S. 541, 554, 55, 82 S. Ct. 955, 962-63, 8 L. Ed. 2d 98 (1962). Although the plaintiffs have attempted to couch their claim in equal protection language, it is clear that they are, in essence, asserting that state law was misapplied in their case. This Court does not find in the equal protection clause the authority to review for constitutional error a decision of a local or state governmental body merely because the decision is alleged to be arbitrary or unlawful. The contention that the plaintiffs are members of a class of everyone who has had the law misapplied in particular cases, even assuming it were supported by some allegation in the complaint, merely suggests that others might have state law, but not federal constitutional, claims. The plaintiffs have failed to state a claim for violation of the equal protection clause of the Fourteenth Amendment.
The Third Circuit has held that where, as here, all federal claims are dismissed or otherwise no longer viable before trial, the Court should decline to exercise jurisdiction over pendent state claims unless "extraordinary circumstances" are present. Shaffer v. Board of School Directors of the Albert Gallatin Area School District, 730 F.2d 910, 912 (3rd Cir. 1984); Weaver v. Marine Bank, 683 F.2d 744, 746 (3rd Cir. 1982) (quoting Tully v. Mott Supermarkets, Inc., 540 F.2d 187 (3d Cir. 1976)). In the present case there are no "extraordinary circumstances" which would justify this Court's retention of jurisdiction. The plaintiffs will be able upon dismissal of this action to transfer the state claims by their own action to the state court pursuant to 42 Pa.Cons.Stat.Ann. § 5103(b). See McLaughlin v. ARCO Polymers, Inc., 721 F.2d 426, 431 (3d Cir. 1983). Since, as has heretofore been pointed out, the Pennsylvania courts allow taxpayers such as the plaintiffs to challenge public contract awards, an adequate state procedure exists for the vindication of the interests the plaintiffs have sought to advance in this suit. An order will therefore be entered dismissing this action, without prejudice to the plaintiffs' right to transfer their state claims to the state court by complying with the transfer provisions of 42 Pa.Cons.Stat.Ann. § 5103(b).
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 590 F. Supp.]
AND NOW, this 22nd day of June, 1984, upon consideration of the defendants' motions to dismiss and the plaintiffs' response thereto, for the reasons stated in this Court's Memorandum of June 22, 1984,
IT IS HEREBY ORDERED that the defendants' motions to dismiss this action are GRANTED and this action is DISMISSED without prejudice to the plaintiffs' right to transfer the state law claims alleged herein to the state court by complying with the transfer provisions of 42 Pa.Cons.Stat.Ann. § 5103(b).
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