Modany v. State Public School Bldg. Authority
| Decision Date | 16 March 1965 |
| Citation | 417 Pa. 39,208 A.2d 276 |
| Parties | Gabriel MODANY, trading and doing business as Modany Brothers, Appellant, and American Casualty Company of Reading, Pennsylvania, a Corporation, v. STATE PUBLIC SCHOOL BUILDING AUTHORITY, a Corporation (two cases). Appeal of AMERICAN CASUALTY COMPANY OF READING, Pennsylvania, a corporation. |
| Court | Pennsylvania Supreme Court |
Edward E. Knauss, III, Metzger, Wickersham & Knauss Harrisburg, for appellants.
Raymond C. Miller, Deputy Atty. Gen., James W. Evans Harrisburg, for appellee.
Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN O'BRIEN and ROBERTS, JJ.
Gabriel Modany, trading and doing business as Modany Brothers, and the American Casualty Company, brought an action in equity to enjoin the Public School Building Authority from proceeding on Modany's bid for the construction of a shool building, and to declare the Modany bid null and void.
The Public School Building Authority advertised for bids for the construction of the Baden Economy Joint School District in Beaver County. The advertisement provided the instructions and conditions of the job and, in addition thereto, provided the manner of submitting the bid and the manner of withdrawal of the bid. The instructions provided that a bid could be withdrawn when the bidder or his agent would personally appear at the Authority office with a written request to withdraw, prior to the time set for the opening of the bids.
On October 4, 1960, appellant, Modany, had completed the preparation of his bid. At 5:10 o'clock, E.D.S.T. on October 4, 1960, Albert Modany, the son of and agent of Gabriel Modany and the person responsible for the preparation of the bid, delivered the bid, together with a bid bond in the penal sum of $13,000.00, [1] to the architect for the job, at his office in Ellwood City, with instructions to deliver the bid to the Authority's office in Harrisburg. This the architect did, at 9:45 o'clock, E.D.S.T. on October 5, 1960. Sometime during the evening of October 4, after the bid had been delivered to the architect, Albert Modany discovered that he had omitted an approximate $120,000.00 item from the bid. Albert Modany, then being unable to contact Mr. McCandless, the architect, by telephone, made no further effort to withdraw the bid until about three hours later, when he returned from visiting his wife in the hospital. He then sent a telegram to the authority at its main office in Harrisburg to the attention of the architect. This telegram was sent at 9:20 P.M., E.D.S.T. on October 4, 1960. The telegram stated that the bid was to be withdrawn, but did not mention a mistake had been made. At 10:05 A.M., E.D.S.T. on October 5, 1960, twenty five minutes prior to the opening of the bids, the contents of the telegram were made known to the counsel for the Authority, the Executive Director of the Authority, and an employee of the Authority authorized to receive bids. At 10:30 A.M., E.D.S.T. October 5, 1960, all of the bids were opened. The appellant's bid was $211,700.00. The next lowest bids were $342,800.00 and $346,495.00. The appellant's bid being then the lowest, his bid was accepted.
The appellant then sought to enjoin the Authority from acting on his bid and to have the bid declared null and void, because it had been withdrawn. The lower court had before it for consideration the effectiveness of the withdrawal of Modany's bid and whether recision of the contract should be decreed if the bid withdrawal was not effective. The court denied relief and dismissed the complaint and that adjudication was affirmed by the court en banc. This appeal followed.
On appeal from a final decree in equity, the findings of fact of the Chancellor, affirmed by the Court en Banc, have the force and effect of a jury verdict and will not be reversed if there is adequate evidence to sustain them and if they are not premised on erroneous inferences and deductions or an error of law. Schwartz v. Urban Redevelopment Authority, 416 Pa. 503, 206 A.2d 789 (1965). Our review of the instant record convinces us that the facts, as found by the Chancellor, affirmed by the Court en Banc and outlined hereinabove, are amply supported by the evidence and they will not be disturbed here. Of course, the Chancellor's conclusions of law or ultimate fact, being his reasoning from the underlying facts, are fully reviewable on appeal. Shydlinski v. Vogt, 406 Pa. 534, 179 A.2d 240 (1962); our review, however, discloses no error.
The State Public School Building Authority Act [2] provides that construction contracts shall be awarded to the lowest responsible bidder. [3] The Authority is also authorized to make rules and regulations for the submission of bids. [4] The authority, pursuant to the provisions of the Act, adopted 'Instructions to Bidders', which had been received by Modany. The provision of the Instructions to Bidders, here relevant, provides that:
'WITHDRAWAL OF PROPOSALS
13. Bidders will be given permission to withdraw any proposal after it has been received by the State Public School Building Authority, provided the bidder, or his agent duly authorized to act for him, personally appears at the office of the State Public School Building Authority with a written request prior to the time set for the opening of bids. At the time set for the opening of proposals the withdrawn proposal will be returned to the bidder. Such proposal will not be publicly read at the bid opening.'
'FAILURE TO EXECUTE CONTRACT
21. If the lowest responsible bidder to whom the contract is awarded fails to give bonds or execute the contract within the time specified in the proposal, the amount of the proposal guaranty shall be forfeited to the State Public School Building Authority, not as a penalty but as liquidated damages.' Modany's telegram read: 'REFERENCE CONTRACT A10-675-1 REQUEST WITHDRAWAL OF OUR BID='. There was no other effort made by Modany to withdraw his bid nor to contact the Authority or the architect in an effort to withdraw his bid. The telegram gave no indication that a mistake had been made in the bid. Although Mr. McCandless, the architect, upon receiving the telegram, attempted to contact Modany by telephone, he was unsuccessful, as no one answered the phone at the Modany office prior to the opening of the bids. When the bids were opened, the Authority had no knowledge at that time that the appellant, Modany, had made a mistake in his bid.
Modany had knowledge of the requirement for the withdrawal of proposals and was bound to follow the requirements in order to accomplish a withdrawal of the proposal. He did nothing except to send the unverified telegram which did not mention a mistake in the bid. Instructions to Bidders are a material part of a contract. The Instructions to Bidders were part of the Contract Documents in this case. In the Proposal of Modany Brothers: 'In conformity with the plans and specifications as prepared by B. J. McCandless, 239 Fourth Street, Ellwood City, Pennsylvania Registered Architect, and having thereon the signature of approval of the Authority, and on file at the office of the State Public School Building Authority; and after an examination of the site of the work, and the Contract Documents including Instructions to Bidders, this Form of Proposal, Agreement, Bond and Conditions of Contract, the undersigned submits this proposal and encloses herewith as a proposal guaranty, a certified check, bank cashier's check, trust company treasurer's check or bid bond on the form furnished by the Authority in an amount of not less than five percent (5%) of the total of the hereinafter stated bid made payable to or indemnifying the 'State Public School Building Authority', * * *' (Emphasis added). Cf. Whitemarsh Township Auth. v....
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