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MUNCY AREA SCHOOL DISTRICT v. JOHN M. GARDNER ET AL. JOHN M. GARDNER ET AL. (08/29/85)

decided: August 29, 1985.

MUNCY AREA SCHOOL DISTRICT
v.
JOHN M. GARDNER ET AL. JOHN M. GARDNER ET AL., APPELLANTS



Appeal from the Order of the Court of Common Pleas of Lycoming County in the case of Muncy Area School District v. John M. Gardner & United States Fidelity and Guaranty Company v. Basco Associates, No. 82-2678.

COUNSEL

Jonathan E. Butterfield, Liebert, Short, Fitzpatrick & Lavin, for appellants.

Robert A. Eckenrode, McCormick, Reeder, Nichols, Sarno, Bahl & Knecht, for appellee, Muncy Area School District.

Michael J. Casale, Jr., Casale & Bonner, P.C., for additional appellee, Basco Associates.

Judge Colins, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Barry did not participate in the decision in this case. Judge Williams, Jr. did not participate in the decision in this case. Dissenting Opinion by Senior Judge Kalish.

Author: Barbieri

[ 91 Pa. Commw. Page 407]

John M. Gardner (Gardner) and United States Fidelity and Guaranty Company (USF&G) (hereinafter referred to collectively as Appellants) appeal here the order of the Lycoming County Court of Common Pleas which granted plaintiff Muncy Area School District's (District) motion for summary judgment in favor of the District and against Appellants, and Basco Associates' (Basco) motion for summary judgment thereby releasing Basco, joined by Gardner and USF&G as an additional defendant, from the lawsuit.

The District, contemplating alterations and an addition (Section A) to an existing elementary school hired Basco, an architectural firm, to act as its agent in the preparation of specifications and instructions

[ 91 Pa. Commw. Page 408]

    for the plumbing work involved in the proposed alterations and addition. The instructions to prospective bidders, including Gardner, requested the submission of a bid for the total combined cost of the plumbing work on the alterations and the Section A addition. The bids were to be submitted by 7:30 p.m. on November 17, 1981. On that day a representative of Basco, acting as agent for the District, contacted Gardner by telephone to inform him that his bid proposal would be unacceptable unless, in addition to his base bid, Gardner provided a "deduct" representing the amount Gardner estimated was the cost of plumbing work on the addition which the District could deduct from the base bid to arrive at a figure for the plumbing work on the alterations only. The District was contemplating the deletion of the Section A addition.

Gardner submitted a base bid of $35,000 and a deduct figure of $30,680; he submitted a bid bond in the amount of $3,500, surety of which was the USF&G. On December 16, 1981, Gardner was notified that the District intended to accept his base bid and the deduct he had provided, for a balance bid price for the proposed alterations of $4,320. In a letter dated December 18, 1981, addressed to Basco, Gardner attempted to submit a new breakdown for the plumbing work on the alterations, indicating an estimate of $13,324 as the cost of the work, rather than $4,320. On December 21, 1981, the District accepted Gardner's bid with the deduct. After Gardner informed the District that he could not perform the work for $4,320, the District, on January 14, 1982, awarded the plumbing contract to the next highest bidder at $13,650.

The District filed a civil action in assumpsit in Lycoming County Court of Common Pleas against Gardner and USF&G seeking damages against Gardner

[ 91 Pa. Commw. Page 409]

    and against USF&G, guarantor of Gardner's $3,500 bid bond. Gardner and USF&G joined Basco seeking indemnification for any liability incurred and for additional damages. The trial court entered summary judgment in favor of the District, and against Gardner and USF&G and dismissed all claims against Basco.

We have jurisdiction of this appeal from the grant of summary judgment in favor of the District pursuant to Section 762 of the Judicial Code, 42 Pa. C.S. § 762, since Section 751 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 7-751, regulating construction work to be done under contract let on bids, is drawn into question. Jurisdiction of the dispute between Appellants and Basco is perfected pursuant to Section 704(a) of the Judicial Code, 42 Pa. C.S. § 704(a),*fn1 and Pa. R.A.P. 741(a).*fn2

Our scope of review when considering a grant of summary judgment is as follows:

It is well-established that we can sustain a summary judgment only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if ...


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