541 A.2d 817 | Pa. Commw. Ct. | 1988
Lead Opinion
Opinion by
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 sub
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 it varied the terms of
We begin by deciding whether the Authority’s resolution constituted an acceptance of Fumos bid or a counter offer. We hold that it was the former. Case law establishes that in the context of public bidding it is the award which gives rise to the contract. Muncy Area School District v. Gardner, 91 Pa. Commonwealth Ct. 406, 497 A.2d 683 (1985). Further, once the award is made it cannot be recanted. Francis v. Luitweiler, 72 Pa. D. & C. 2d 582 (1975). Here, the Authority, by resolution, awarded the contract, but then attempted to attach a condition to it. It is undisputed that nothing in the invitation to bid required that a garden be maintained at 255 South Ninth Street; in fact, the Cathedral
Therefore, the next question which arises is whether the two year court-imposed restriction may stand, i.e., whether the trial court had the authority to impose such a restriction. Although principles of municipal law prohibit the substitution of judicial discretion for administrative discretion, American Totalisator, an authority’s bidding process is subject to some judicial review. The trial court, in the absence of fraud, has a limited scope of review, but it may examine the Authority’s decision to determine whether the Authority manifestly and flagrantly abused its discretion or acted arbitrarily. Id. The trial court struck the twenty-five year provision. On remand, the Authority then sought to impose a ten-year restriction. The trial court determined that by failing to comply with, its May 15 order or by failing to exercise reasonably the deference it had been afforded by the trial court upon remand, the Authority had “forfeited
Furthermore, if we were to agree with Appellants’ argument that the trial court “interfered with” the Authority’s discretion in this instance by setting aside a twenty-five year deed restriction and then a ten-year deed restriction, and then by its own order foist upon the Authority and Fumo a two-year restriction, we would be compelled, absent any right of the Authority to impose any deed restriction at all, to set aside even the two-year period imposed by the court’s order of April 2, 1987. This result, however, would be contrary to the relief Appellants seek and we will not, accordingly, reach a result not sought by them. Since Fumo did not appeal from that court order, and argued in his brief that the judgment of the common pleas court should be affirmed, we will leave intact the court’s two-year restriction.
The Cathedral and Authority also argue that in imposing the restriction, the court reformed the contract and that such an equitable remedy is not warranted on the facts here because Fumo did not have “clean hands.” The “clean hands” doctrine requires that the party seeking relief from the court have acted fairly and without fraud and deceit in the litigation at issue. Shapiro v. Shapiro, 415 Pa. 503, 204 A.2d 266 (1964). The Cathedral and the Authority contend that because Fumo did not disclose his long-range plans for the proposal in his
Having concluded that the trial court acted properly-in this matter, we shall affirm its’ order.
Order
Now, May 2, 1988, the orders of the Court of Common Pleas in the above-captioned matter are. hereby affirmed.
The Authority appealed at No. 2037 C.D. 1986; the Cathedral, as an intervening defendant, appealed at No. 2036 C.D. 1987. Ordinarily, these appeals would have had the effect of staying any further action by the common pleas court. See Rule 1701 of the Rules of Appellate Procedure, Pa. R. A.P. 1701. In this instance, however, this Court entered an order on October 3, 1986, directing the common pleas court to continue with the proceedings.
The order was appealed at No. 1064 C. D. 1987.
The Authority appealed at No. 2090 C.D. 1987; the Cathedral appealed at 2089 C.D. 1987.
Fumo did file a cross-appeal from the May 28, 1986 court order (see footnote 1); that appeal was quashed, however, on October 3, 1986 on motion of the Authority because Fumo had not filed exceptions to the underlying trial courts order of May 15, 1986.
See Greek Orthodox Cathedral of Saint George v. Redevelopment Authority of the City of Philadelphia, 115 Pa. Commonwealth Ct. 531, 541 A.2d 822 (1988).
The opinion of the trial court filed with its order of May 15, 1986 contained the following findings:
14. No specific deed restriction was contained in the IFP; nor was there specified a limitation as to how long any particular use would have to be made of the parcel(s) by the selected redeveloper.
15. In the competitive bidding setting, it has been almost uniform practice of the Redevelopment Authority for at least 20 years, where the Authority intends to impose requirements, to state such requirements in the invitation for proposals; specifically, requirements for property uses or limitation on such uses following certificate of completion are expressly incorporated in the invitation for proposals.
16. It is contrary to redevelopment procedures accepted within the redevelopment field to publish an invitation for bids, and later add new and onerous changes diminishing the value of the property and imposing conditions not established in the invitation.
17. The Philadelphia Redevelopment Authority has not previously employed such a practice; the only case in which a condition requiring open space was added after the issuance of invitation of proposals in a bid case was one in which the Authority accepted a price lower than the minimum price, and imposed a condition by agreement at that time and in that context.
Although the Cathedral and the Authority argue strenuously for a remand to the Authority for new'bidding, we believe that that remedy is appropriate in situations where the valuative criteria were altered in mid-stream or where an unsuccessful bidder succeeds in showing the Authority erred or abused its discretion. See American Totalisator; J.P. Mascaro & Sons, Inc. v. Township of Bristol, 95 Pa. Commonwealth Ct. 376, 505 A.2d 1071 (1986). Cf. Francis. (proper- remedy for successful bidder is award of contract).
Dissenting Opinion
I respectfully dissent. As the majority correctly notes, we. must first determine whether the Authority’s Resolution constituted an acceptance of Fumo’s bid or a counter-offer by the Authority. However, I must disagree with the majority’s conclusion that the Resolution was an acceptance of Fumo’s bid.
The Pennsylvania Supreme Court has held that a reply to an offer, though purporting to accept that offer, is not an acceptance but a counter-offer, where such reply adds qualifications or requires performance of conditions. Hatalowich v. Redevelopment Authority of Monessen, 454 Pa. 481, 312 A.2d 22 (1973); Hedden v. Lupinsky, 405 Pa. 609, 176 A.2d 406 (1962). In order for a contract to be formed, the acceptance of the offer must be absolute and identical with the terms of the offer. Hedden.
With the above principles in mind, an examination of the Authority’s resolution demonstates that no contract was formed in this case.
BE IT RESOLVED, By the Redevelopment Authority of the City of Philadlephia, that Vincent J. Fumo is hereby selected as the Redeveloper for 253 and 255 South 9th Street . . . and approval is hereby given to the disposition contract provided that said contract contain a provision for a deed restriction that Parcel 60A (255 South 9th Street) be developed and maintained solely as a landscaped garden for a period of (25) years from settlement. . . . (Emphasis added.)
The Authority’s approval is thus conditioned upon the inclusion in the contract of a provision for a twenty-
This court has held that the purpose of competitive bidding is to invite competition and to guard against favoritism and fraud. See Conduit and Foundation Corporation v. City of Philadelphia, 41 Pa. Commonwealth Ct. 641, 401 A.2d 376 (1979). Once it is determined that the Authority changed the terms of its proposal for bids, the proper procedure had to be the setting aside of all bids and beginning the bidding process anew. Philadelphia Warehousing and Cold Storage v. Hallowell, 88 Pa. Commonwealth Ct. 574, 490 A.2d 955 (1985). Accordingly, I would reverse.
The majority also addressed the issues of whether the trial court properly set aside the twenty-five (25) and ten (10) year deed restrictions and whether it was proper for the trial court to impose a two (2) year deed restriction. In view of my belief that no contract was ever formed between the Authority and Fumo, I do not address these issues.
The parties do not dispute that Fumo offered to redevelop Parcel 60A (255 South 9th Street) as a landscaped garden.
The twenty-five (25) year deed restriction was also noted in the Authority’s letter to Fumo advising him that his bid had been selected.