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Myers v. Montgomery County

Commonwealth Court of Pennsylvania

May 20, 2014

Allan A. Myers, LP, Appellant
v.
Montgomery County and Honorable James R. Matthews, Honorable Joseph M. Hoeffel, III and Honorable Bruce L. Castor Jr., acting as individuals in their capacity as Montgomery County Commissioners

Argued: February 11, 2014.

Appealed from No. 11-34374. Common Pleas Court of the County of Montgomery. Judge Smyth, J.

Paul A. Logan, King of Prussia, for appellant.

Philip W. Newcomer, Norristown, for appellees.

BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY JUDGE COHN JUBELIRER.

OPINION

Page 103

RENÉE COHN JUBELIRER, Judge

Allan A. Myers, LP (Myers) appeals from an Order of the Court of Common Pleas of Montgomery County (trial court) sustaining Preliminary Objections (POs) and dismissing, with prejudice, Myers' Complaint against Montgomery County and Honorable James R. Matthews, Honorable Joseph M. Hoeffel, III and Honorable Bruce L. Castor Jr., acting as individuals in their capacity as Montgomery County Commissioners (Commissioners) (collectively, " the County" ). On appeal, Myers argues that the trial court erred: (1) by concluding that the County did not enter into a binding contract with Myers; and (2) by going beyond the record evidence to consider facts, and circumstances, and drawing inferences therefrom in sustaining the POs. Because we conclude that the statutory requirements were not satisfied for the formation of a binding contract between Myers and the County, we hold that the trial court did not err by determining that Myers has not stated a claim for breach of contract. However, we also conclude that, at this preliminary stage, the trial court erred by dismissing Myers' Complaint in its entirety because Myers may be entitled to an award of damages for the costs incurred by Myers for procuring the required bonds when it was initially awarded the contract. Accordingly, we affirm, in part, reverse, in part, and remand this matter for further proceedings.

The County is a Second Class A county and is governed by The Second Class County Code (Second Class Code).[1] In 2011, the County issued a request for proposals (RFP) for a roadwork project. (Complaint ¶ 4.) Myers submitted a two-part bid (Schedules A and B) on June 23, 2011 in response to the RFP totaling $4,199,234.60. (Complaint ¶ ¶ 8-9; Complaint, Ex. B, R.R. at 22a.) The Proposal Form Signature Pages of the RFP provide that, " [i]n case this proposal is accepted,

Page 104

the undersigned is hereby bound to enter into [a] contract within thirty (30) days after receipt of notice of acceptance of the above in accordance with the specifications." (Complaint, Ex. B, R.R. at 22a; Trial Ct. Op. at 4.) The signature page of the RFP, which was signed by Myers' president, provided:

In case this proposal is accepted, the undersigned is hereby bound to commence and complete all of the work included under his contract in such time and such manner as designated for the various items he has contracted to supply.
In submitting this proposal, it is understood that the unrestricted right is reserved by the County to reject any and all proposals or parts thereof, or to waive any informalities or technicalities in said proposals, and it is agreed that this proposal may not be withdrawn for a period of at least sixty (60) days from date of opening thereof.

(Complaint, Ex. B, R.R. at 23a; Trial Ct. Op. at 4.)

The bids were opened on June 23, 2011. (Complaint, Ex. C, R.R. at 61a.) The County's Commissioners accepted Myers' bid at a public meeting held on July 7, 2011 and adopted the following resolution (July Resolution):

WHEREAS, Spec. #6126, bids to provide the furnishing, delivering, all required materials and equipment, providing all labor, supervision and technical personnel, including utility and transportation services necessary for Milling and Resurfacing, were opened June 23, 2011, and were sent to seventeen (17) vendors and seven (7) vendors responded as in the attached; and
WHEREAS, following the review and approval by the Solicitor, the bid of Joseph E. Sucher & Sons, Inc., of Eddystone, PA was withdrawn due to the unintentional omission of a substantial quantity of work, labor, material and services made directly in the compilation of the bid, and the bid of Highway Materials, Inc. of Blue Bell, PA was rejected due to non-compliance with the Specifications and it is the recommendation of the Director of Roads and Bridges to accept the bid of Allan A. Myers[,] L.P. of Worcester, PA (Schedule A - 2011 paving estimated total lump sum $2,571,738.56 and Schedule B - 2012 paving estimated total lump sum $1,627,496.04) for an estimated total lump sum price of $4,199,234.60, it being the lowest responsive estimated total lump sum price bid received in strict accordance with the specifications.
NOW THEREFORE BE IT RESOLVED, following the review and approval by the Solicitor, the bid of Joseph E. Sucher & Sons, Inc., of Eddystone, PA was withdrawn due to the unintentional omission of a substantial quantity of work, labor, material and services made directly in the compilation of the bid, and the bid of Highway Materials, Inc. of Blue Bell, PA was rejected due to non-compliance with the Specifications and it is the recommendation of the Director of Roads and Bridges to accept the bid of Allan A. Myers[,] L.P. of Worcester, PA (Schedule A - 2011 paving and Schedule B - 2012 paving) for an estimated total lump sum price of $4,199,234[.60,] it being the lowest bid received meeting the specifications and being within budgetary limitations. AND FURTHER, a notice to proceed for Schedule B will only be given if funds are budgeted in 2012, AND FURTHER, that the proper County officials are hereby authorized to prepare the necessary documents.
AND FURTHER, should Allan A. Myers[,] L.P. of Worcester, PA fail to

Page 105

post the required bonds for Schedule A in 2011 and for Schedule B in 2012, the acceptance of that bid and contract shall automatically be void.

(Complaint, Ex. C, R.R. at 61a (emphasis in original).) Following the July 7, 2011 public meeting, Myers took all steps requested by the County based upon Myers being awarded the contract and executed and returned to the County all the necessary documents and requested information. (Complaint ¶ ¶ 24-25.) This included furnishing the required bonds; insurances; allocating manpower, materials, equipment and ...


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