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CLEMSON CORPORATION v. MCKEESPORT AREA SCHOOL DISTRICT (02/01/85)

decided: February 1, 1985.

CLEMSON CORPORATION, A CORPORATION, APPELLANT
v.
MCKEESPORT AREA SCHOOL DISTRICT, A MUNICIPAL CORPORATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Clemson Corporation, a corporation v. McKeesport Area School District, a municipal corporation, No. GD 80-15891.

COUNSEL

Marvin J. Apple, with him, Martha O. Wolf, for appellant.

Lawrence J. O'Toole, with him, Robert P. Costello, Costello & O'Toole, for appellee.

Judges Williams, Jr. and Doyle and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 87 Pa. Commw. Page 375]

Appellant, Clemson Corporation, appeals here from an en banc decision of the Court of Common Pleas of Allegheny County which dismissed Appellant's exceptions to a non-jury verdict in favor of Appellee, McKeesport Area School District (District), against Appellant in its action in assumpsit for loss of profits.

Appellee needed stoker coal to heat its buildings and invited bids from the public. On September 27, 1979, Appellant submitted a bid to supply Appellee with the coal for $64.50 per ton. The bid specifications required that the coal meet all Allegheny County Smoke Control standards and, as summarized by the court of common pleas, be "mechanically cleaned, free burning, double-screened, size 1/4" x 1 1/8, less than 1% low ash." On October 15, 1979, the McKeesport Area School Board (Board) met and announced that only two bids had been received and that Appellant's bid of $64.50 per ton was the lower of the two. The Board resolved "that the bid for coal be awarded to Clemson Coal Co. at its bid of $64.50 per ton; provided the analysis submitted by the Clemson Coal Co. is approved by the Dept. of Air Pollution of the Co. of Allegheny." (Department.) After Appellant's submission of the laboratory analysis, Max Zeman, a member of the Department, determined that Appellant's coal was too high in ash content. Since the next highest bid, that of Junction Corporation, Appellee's

[ 87 Pa. Commw. Page 376]

    previous supplier of coal, was $9.50 per ton higher than Appellant's bid, Appellee attempted to contact Appellant to suggest that Appellee try a load of Appellant's coal which might be found within specifications. Several employees of Appellee testified that they each attempted to contact Appellant, but that they reached a mechanical answering service which identified itself as the National Frame Company. Having heard nothing from Appellant, Appellee purchased coal for the remainder of the heating season from Junction Corporation.

According to the testimony of Morry Rosecrans, the President of Appellant, upon learning that Appellant was the lowest bidder Mr. Rosecrans purchased coal to be sold to Appellee, and he later sold the coal at a loss. Appellant subsequently brought an action in the Court of Common Pleas of Allegheny County against Appellee for loss of profits. Following a non-jury verdict in favor of the defendant, Appellee, the court of common pleas, en banc, dismissed Appellant's exceptions to the verdict.

Appellant initially contends that, by virtue of the Board's resolution, it had a contract to supply Appellee's coal needs.*fn1 However, the bid specifications provided, inter alia, that the coal had to meet Allegheny County pollution standards and that the coal had to be under one percent in low ash content. Indeed, the Board's resolution to accept the bid of Appellant, contained the condition that the Department give its approval of the analysis submitted by Appellant. Since the Department was unable to approve the analysis

[ 87 Pa. Commw. Page 377]

    submitted because of the high ash content of the coal, no enforceable contract was formed between the parties.*fn2 In this connection, we find that the case of Francis v. Luitweiler, 72 Pa. D. & C. 2d 582 (1975), relied upon by Appellant is totally ...


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