Fumo v. Redevelopment Authority

*552Dissenting Opinion by

Judge Palladino:

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.1 Resolution No. 12,865 states:

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-*553five (25) year deed restriction. Clearly, the requirement that Fumo agree to a twenty-five (25) year deed restriction is a material alteration of the terms of the bid.2 Alteration of the terms of an offer in any material respect is not an acceptance. See Thomas A. Armbruster, Inc. v. Barron, 341 Pa. Superior Ct. 409, 491 A.2d 882 (1985) (citing 1 A. Corbin, Corbin on Contracts §82 (1963)).

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.