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CHARLES BERRYHILL ET AL. v. ROBERT DUGAN (04/30/85)

decided: April 30, 1985.

CHARLES BERRYHILL ET AL., APPELLANTS
v.
ROBERT DUGAN, AN ADULT INDIVIDUAL AND TAXPAYER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Greene County in case of Robert Dugan, an adult individual and taxpayer v. Charles Berryhill, David Godisart, Beverly Krill, Glenn Richards and Frank Vancleve, Members of the Waynesburg Borough Council, John H. Cassidy, Mayor of Waynesburg Borough and Waynesburg Borough, a Political Subdivision of the Commonwealth of Pennsylvania, No. 26, In Equity, 1981.

COUNSEL

David F. Pollock, Pollock, Pollock & Thomas, for appellants.

Scott H. Fergus, Fergus, Martin & Fergus, for appellee.

Judges Craig, Barry and Colins, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 89 Pa. Commw. Page 47]

We have before us an appeal by the members of the Waynesburg Borough Council, the Mayor of Waynesburg Borough, and Waynesburg Borough, seeking reversal of the dismissal of exceptions to a decree nisi issued by the Common Pleas Court of

[ 89 Pa. Commw. Page 48]

Greene County. The Court ruled in favor of Robert Dugan (appellee), an individual and taxpayer, finding that the bid for solid waste removal was awarded in violation of the Borough Code, 53 Pa. C.S. ยง 46402 and declaring the contract awarded null and void.

This dispute concerns the award of a solid waste hauling contract to Long Trucking Company, the second lowest bidder, rather than to Southern Allegheny Disposal System, the low bidder. The Borough advertised for sealed bids to be received by July 27, 1981, requiring that the bidder furnish evidence of ownership of or ability to provide necessary equipment, and an experience record, or a showing of ability to perform. The bidding specifications listed the term of the contract as being five years, with the proviso that either the Borough or the contractor may terminate the contract after three years.

Long Trucking not only bid a significantly higher price for its services, but it also submitted a bid for thirty months, rather than the requisite sixty months (with a possibility of termination after thirty-six months). Thus, the contract awarded did not meet the minimum durational requirements of the Borough, as advertised. Furthermore, Long Trucking was characterized by the Borough Manager as being in poor financial condition, and the condition of its equipment was in question. The only apparent advantage the company possessed is that it had previously served as the trash-hauler for the Borough in the past.

Judge Toothman, sitting in equity, found that Long Trucking bid $6.00 per month for curbside and $6.50 for backyard pickup and Allegheny bid $4.36 and $5.90 respectively*fn1 and that the bid from Long Trucking was for thirty months.*fn2

[ 89 Pa. Commw. Page 49]

Appellants claim that the Borough did not abuse the discretionary provisions of the Borough Code by their award, and allege that the court below has abused its discretion by declaring the award null and void and further ordering ...


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