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NANCY N. NERNBERG ET AL. v. RICHARD ADAMS (07/12/88)

decided: July 12, 1988.

NANCY N. NERNBERG ET AL., APPELLANTS
v.
RICHARD ADAMS, JR. ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of Nancy N. Nernberg, Colleen Hell, Frank Giovannitti, Mary Jaksec, Karen McIntyre, Connie B. L. Kiesel, Joseph J. Scully, F. Stuart Leitzell, Richard D. Irwin and John T. Walters v. Richard Adams, Jr., Barbara Burns, Jake Milliones, Edwin I. Grinberg, William H. Larkin, Patricia Wall, Jean Fink, a/k/a Carol Jean Fink, Ronald L. Suber and Carole J. Annis, in their capacity as members of the Pittsburgh Board of Public Education, No. GD 87-16068.

COUNSEL

James R. Cooney, with him, Mitchell A. Kaufman and Maurice A. Nernberg, Jr., Nernberg & Laffey, for appellants.

Marvin A. Fein, with him, J. Russell McGregor, Jr., Baskin, Flaherty, Elliott & Mannino, P.C., for appellees.

Judges Doyle, Palladino and McGinley, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 117 Pa. Commw. Page 558]

Before us for our consideration is an order of the Court of Common Pleas of Allegheny County, which, prior to entering a rule to show cause or conducting a hearing, granted a motion to quash filed by the nine members of the Pittsburgh Board of Public Education (Appellees). The motion was filed in response to a petition to remove the nine board members from office, said petition being filed by ten taxpayers (Appellants) of the Pittsburgh School District.

Appellants filed their petition alleging that Appellees had violated the public bidding requirement appearing in Section 751(a) of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 7-751(a). That Section pertinently provides:

All construction, reconstruction, repairs, maintenance or work of any nature, including the introduction of plumbing, heating and ventilating, or lighting systems upon any school building or upon any school property . . . made by any school district, where the entire cost, value, or amount of such construction, reconstruction, repairs, maintenance or work, including labor and material,

[ 117 Pa. Commw. Page 559]

    shall exceed four thousand dollars ($4,000), shall be done under separate contracts to be entered into by such school district with the lowest responsible bidder, upon proper terms, after due public notice has been given asking for competitive bids.

It is Appellants' contention that this provision of the Code was violated by Appellees when they replaced, without rebidding, the general contractor, Coco Brothers, Inc., which was performing renovations on Oliver High School under a 1985 contract. It is Appellees' position that Coco Brothers breached its contract when it failed to perform, and when it could not complete the renovation work pursuant to contract specifications. This resulted in the Board rescinding the contract with Coco Brothers in May 1987. The alleged breach and the recision are the subject of related litigation. When Appellees decided to replace Coco Brothers the Board entered into negotiations with McAnallen Corp., the company which had been the second lowest responsible bidder at the time the contract was offered for bid. The Board did so without first conducting a rebidding. The Board then passed a resolution authorizing the appropriate officers to enter into a contract with McAnallen. The Board was anxious to have the project continue so that the renovations would be completed by the time of school opening in the fall of 1987. Appellants brought the instant lawsuit seeking removal of the nine named directors pursuant to Section 318 of the Code, 24 P.S. § 3-318, which pertinently provides:

If the board of school directors in any district . . . (2) refuse or neglect to perform any duty imposed upon it by the provisions of this act relating to school districts, . . . any ten resident taxpayers in the district . . . may present their . . . petition in writing, ...


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