Wright v. Wagner

• Decision Date: 05 December 1961
• Citation: 175 A.2d 875,405 Pa. 546
• Parties: Edward WRIGHT and Maxine Wright and Peyton Smith and Mildred Smith and Lexton Smith and Richard Heller v. Donald C. WAGNER, David M. Smallwood and City of Philadelphia, Appellants.
• Court: Pennsylvania Supreme Court

Page 875

175 A.2d 875

405 Pa. 546

Edward WRIGHT and Maxine Wright and Peyton Smith and Mildred Smith and Lexton Smith and Richard Heller v. Donald C. WAGNER, David M. Smallwood and City of Philadelphia, Appellants.

Supreme Court of Pennsylvania.

Dec. 5, 1961.

Rehearing Denied Jan. 2, 1962.

James L. Stern, Joseph V. Furlong, Jr., Deputy City Sols., David Berger, City Sol., Edward J. Bradley, Asst. City Sol., Levy Anderson, First Deputy City Sol., Philadelphia, for appellants.

Ostroff, Lawler & Baker, James Francis Lawler, Philadelphia, for appellees.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN and ALPERN, JJ.

COHEN, Justice.

This appeal is by the City of Philadelphia from a final decree of the lower court decreeing that the contract between the City of Philadelphia (City) and the Landfill Corporation of Pennsylvania (Corporation) is a nullity, enjoining the City from using the facilities of Corporation, and further restraining the City from entering into similar contracts unless obtained by competitive bidding.

The chancellor based his conclusions chiefly on his determination that the agreement violated Sections 8-200(1) and 5-500(c) of the Philadelphia Home Rule Charter. ¹

Briefly the facts are:

With approval of both the managing director and the law department of the and after city council amonded the budget of the streets department by transferring funds (the rental fixed by agreement) to the Department of Public Property, the City negotiated and entered into an agreement with Corporation for a dump site in Norwood Borough, Delaware County Pennsylvania. This agreement gave the City the privilege of dumping 500,000 cubic yards of refuse collected by City employees in the West Philadephia area and taken to the dump site in City trucks by City employees who also perform the dumping operation. The agreement requires Corporation to operate a sanitary landfill upon said premises and to provide all required labor and equipment. No supervisory powers over Corporation's operation were retained by City. The major problem thus presented is whether this operation of landfill constitutes 'rendering any services to the City' so that Section 8-200(1) of the charter requires City to secure those services only from the lowest responsible bidder.

The lower court held that since Section 5-500(c) of the city charter requires the streets department to 'remove and dispose of * * * refuse' or, when 'specifically authorized by Council,' to contract for such disposition, the streets department had the duty not only to dump the refuse, but to perform the additional landfill function of doing away with it. Thus, the doing away with the refuse after it was dumped by the streets department was a service which City was required to perform, and the services should have been secured by bidding as required by Section 8-200(1) of the charter.

We do not believe that it was the intention of the framers of the city charter when they used the word 'dispose' in Section 5-500(c) to require the streets department to completely do away with the ashes, garbage and refuse. It is more reasonable to conclude that the streets department's obligation, as imposed by the city charter, was to remove and get rid of the ashes, garbage and refuse. That is exactly what the City of Philadelphia did when it dumped the refuse on the land of the Corporation--it got rid of the debris. From then on it became the obligation of the Corporation to operate its own facility with its own employees and under its own supervision, and to do so in such a manner as not to infringe upon or violate any of the health laws of the Commonwealth of Pennsylvania.

Obviously, the purpose of paragraph four ² of the agreement, providing for a sanitary landfill, was not to require the performance of the landfill function as part of the consideration of the license to dump the debris; otherwise additional standards or requirements of performance would have been provided. The purpose of paragraph four was to protect City so that its right to dump would in no way be curtailed or interrupted because of Corporation's failure to abide by sanitary regulations and requirements of the Commonwealth, and hence cause City to lose the dumping site.

The decision of the framers of the charter not to require competitive bidding by City in obtaining sites for the dumping of debris is sound. It would be most impracticable to require competitive bidding, since all the factors, such as location of the site, layout of the site, available access to roads, traffic considerations, neighborhood sentiment and the type of debris, contribute to the uniqueness of the requirements and defy bid specifications.

The second issue concerns whether city council, under Section 5-500(c) of the charter must authorize a contract such as the one involved here and, if so, whether such authorization was actually granted here by council's amendment of the 1961 operating budget to add the $125,000 necessary for the execution of this contract. The lower court specifically ruled that council must authorize such a contract but did not give its reasons for refusing to hold that the amendment to the 1961 operating budget constituted such authorization.

Without holding that councilmanic authorization is required for the execution of this dumping contract, we feel that the above procedures engaged in by city council, acting upon the suggestions contained in the memorandum ³ supplied by the streets commissioner to the members of city council, satisfied the requirement of Section 5-500(c) and constituted councilmanic authorization for the execution of the dumping contract by City.

The lower court also erred in ruling that the commissioner of the streets department abused his discretion in negotiating the contract with Corporation. The court felt that there was adequate testimony to the effect that the costs involved were exorbitant in comparison to those at other landfill sites, and that the transaction reeked of personal and political favoritism.

Unfortunately, the chancellor in this case, both by his conduct in the course of the trial and by his adjudication, demonstrated obvious and extreme bias. The chancellor became so personally involved in this litigation that his examination and cross-examination of witnesses extended to over 2,000 questions, considerably more that the number of questions asked by counsel for the plaintiff-taxpayers. The admonition which Justice (now Chief Justice) Bell, quoted in Commonwealth v. Horn, 395 Pa. 585, 591, 150 A.2d 872, 875 (1959), 'It is always the right and sometimes the duty of a trial judge to interrogate witnesses, although, of course, questioning from the bench should not show bias or feeling nor be unduly protracted,' is most applicable here. Thus, in addition to the two reversible errors discussed above, the extensive examination of witnesses, the unduly protracted questioning from the bench and the apparent display of bias and partisanship by the chancellor vitiates the reliability of his findings and requires us to reverse his decree.

Decree reversed. Costs reassessed. Each party to pay its own costs.

BELL, C. J., files a dissenting opinion, in which JONES, J., joins.

BELL, Chief Justice (dissenting).

The majority opinion reverses the decree of the lower Court which had declared the contract...