Appeals from the Order of the Court of Common Pleas of Philadelphia County, in the case of Vincent J. Fumo v. Redevelopment Authority of the City of Philadelphia and Greek Orthodox Cathedral of Saint George, No. 4613, January Term, 1986.
Harold R. Berk, Harold R. Berk Associates, for appellant, Greek Orthodox Cathedral of Saint George.
Robert J. Sugarman, with him, Gabriel L. I. Bevilacqua, Sugarman & Cohen, for appellee, Vincent J. Fumo.
Judges Doyle and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Judge Colins did not participate in the decision in this case. Dissenting Opinion by Judge Palladino.
[ 115 Pa. Commw. Page 544]
Before us for our consideration are various consolidated appeals arising out of an invitation to bid on two parcels of property situate in the City of Philadelphia. The two contiguous parcels located at 253 and 255 South Ninth Street in Philadelphia were offered up for bid by the Redevelopment Authority of the City of Philadelphia (Authority). The lot located at 253 South Ninth Street (lot 60A) contained a four-story commercial/residential building which was in a state of disrepair; the adjacent lot at 255 South Ninth Street (lot 60) had no structure on it. Three proposals were submitted
[ 115 Pa. Commw. Page 545]
to the Authority only two of which need concern us here. Vincent J. Fumo (Fumo) proposed to rehabilitate the dilapidated building and turn it into a single family residence and to turn the other parcel into a landscaped garden. His long-range plans, which were not included in his proposal, called for the razing of the existing structure and the building of a new single family residence combining the two properties. The other bidder, the Greek Orthodox Cathedral of Saint George (Cathedral) submitted a proposal which called for the development of each parcel as a professional office building with apartments above each building. Apparently, certain city residents wanted 255 South Ninth Street to be converted into a landscaped garden, and they communicated their wishes to the Authority. Ultimately, Fumo was awarded the bid by a resolution of the Authority on January 8, 1986. The Authority, however, attempted to make the award conditional by requiring a deed restriction which would have mandated that Fumo keep the garden intact for twenty-five years. Fumo appealed the restriction to the common pleas court. By order dated May 15, 1986, the court preliminarily and permanently enjoined the Authority from enforcing the restriction, directed the Authority to honor the award to Fumo, and directed the parties to consummate the contract. The court further denied the Authority's motions for post-trial relief and a stay, by order dated May 28, 1986; appeals to this Court from the May 28 order followed.*fn1
[ 115 Pa. Commw. Page 546]
Subsequently, on remand from the common pleas court, the Authority, by a board resolution of June 13, 1986 tendered a second proposed contract to Fumo. In the second proposed contract, the twenty-five-year restriction had been reduced to ten years. Fumo again appealed to the common pleas court this time in the posture of a motion to enforce the court's May 15 order. That motion was granted by order dated April 2, 1987, and the Authority was directed to honor the award to Fumo. However, the April 2, 1987 order, although it enjoined the Authority from enforcing its ten-year restriction, also directed that the garden remain for two years. The Authority appealed that order to this Court as well.*fn2 Post-trial motions were filed by the Authority and the Cathedral and were denied by an order of court dated July 2, 1987. That order was also appealed by the Authority and the Cathedral;*fn3 it is significant that no appeal was taken by Fumo.*fn4
Although the procedural history of this case is fairly complex, the issues which we must resolve on appeal are clear-cut. First, we must decide whether the Authority's resolution, which purported to award the bid to Fumo with the added condition, constituted an award of the bidding contract or merely a counter offer. Resolution of the question is a necessary prerequisite to determining what relief, if any, is appropriate.
The Authority and the Cathedral contend that it was a conditional award, because ...