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J. P. MASCARO & SONS v. TOWNSHIP BRISTOL (03/04/86)

decided: March 4, 1986.

J. P. MASCARO & SONS, INC., APPELLANT
v.
TOWNSHIP OF BRISTOL, ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Bucks County in the case of J. P. Mascaro & Sons, Inc. v. Township of Bristol, James W. Perkarski, L. Marie Mascia, Chaser J. Cotugno, Anthony J. Melio, Anthony V. Gesualdi, Albert M. Wurm, Robert Lewis, Jr., Anna Rogers, Mary Lou Tantum, Michael J. Slipp and Mel Howard, No. 82-9462-15-2.

COUNSEL

William F. Fox, Jr., with him, Marc D. Jonas, for appellant.

Clyde W. Waite, for appellees.

Judges Rogers and MacPhail, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 95 Pa. Commw. Page 377]

J. P. Mascaro & Sons, Inc. (Mascaro), disappointed bidder for the Bristol Township trash collection contract, appeals here the order of the Bucks County Court of Common Pleas sustaining Bristol Township's (Township) preliminary objections in the nature of a demurrer and dismissing with prejudice the complaint filed by Mascaro against the Township and the individuals comprising the Township Board of Commissioners.

[ 95 Pa. Commw. Page 378]

In November, 1982, Bristol Township issued a notice to bidders that sealed bids for the collection and disposal of solid waste for a period of three years, commencing January 2, 1983, would be received by the Township on November 10, 1982. The bids were required to be accompanied by the requisite bond(s), deposits, questionnaire, and affidavits as set forth in the Instructions to Bidders, together with a performance bond in the amount of 10% of the bid. Mascaro complied with all of the above requirements and submitted a bid of $955,524 for each year of the three year contract. The only other bidder was Penn Sanitation which submitted a bid of $990,840 for the first year, $995,640 for the second year, and $999,480 for the third year, making Penn Sanitation's bid the higher one by $119,388.

The Township manager recommended that the contract be awarded to Mascaro and included this recommendation in a memorandum prepared and delivered to the commissioners prior to the meeting at which the contract was to be awarded. The Township solicitor prepared a resolution to be acted upon by the individual commissioners recommending that the contract be awarded to Mascaro. Nevertheless, the commissioners, without requesting that either the memorandum or resolution be read, voted to award the contract to Penn Sanitation.

Mascaro then filed the subject complaint setting forth five counts alleging malfeasance on the part of the Township, slander of property, trespass, violation of Mascaro's state and federal due process rights, and failure to accord Mascaro its rights under the Local Agency Law, 2 Pa. C.S. ยงยง 551-555, 751-754. Bristol Township filed preliminary objections in the nature of a demurrer asserting the Township's and the individual commissioners' official and governmental immunities, Mascaro's failure to plead the necessary elements to sustain a cause of action of "slander of

[ 95 Pa. Commw. Page 379]

    property," and Mascaro's lack of standing to assert violations of the federal and state guarantees of due process due to Mascaro's lack of a legitimate claim of entitlement to the contract. It followed, asserted the Township, that the award of the contract had not been an adjudication dispensing with Mascaro's property rights necessitating a hearing under the Local Agency Law.

The common pleas court sustained the Township's preliminary objections and dismissed all five counts of Mascaro's complaint with prejudice. The court premised its dismissal of the complaint upon its reasoned opinion that Mascaro had no legitimate claim of entitlement to the contract. On appeal, Mascaro reproves the common pleas court for failing to fully analyze and consider each count of its complaint before dismissing them, and yet Mascaro states in its brief that it intends to focus on the standing and property right issues, although it insists that the complaint sets forth valid causes of action based upon theories of malfeasance, promissory estoppel and interference with a prospective contractual relationship. Because Mascaro fails to present the facts and law supportive of the legal theories upon which these latter variable counts are based, we are unable to ...


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