              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Harold Lindeman, Jamie Livengood        :
and Matthew Beeman                      :
                                        :   No. 2063 C.D. 2014
            v.                          :
                                        :   Submitted: November 16, 2015
The Borough of Meyersdale,              :
Somerset County,                        :
                 Appellant              :



BEFORE:     HONORABLE DAN PELLEGRINI, President Judge
            HONORABLE MARY HANNAH LEAVITT, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge



OPINION BY
JUDGE McCULLOUGH                                      FILED: December 30, 2015


            The Borough of Meyersdale (Borough) appeals from the October 7,
2014 order of the Court of Common Pleas of Somerset County (trial court), granting
the petition of Harold Lindeman, Jamie Livengood, and Matthew Beeman
(collectively, Petitioners) for a preliminary injunction and enjoining the Borough
from moving forward on an accepted bid for the collection of municipal waste.


                          Facts and Procedural History
            The parties have stipulated to the pertinent facts in this matter. For the
past 21 years, Harbaugh Trucking, Inc. (Harbaugh) was the exclusive garbage hauler,
both residential and commercial, for the Borough. The Borough’s last contract with
Harbaugh was set to expire on October 31, 2014. In early 2014, the Borough issued a
request for proposal (RFP) seeking bids for the collection and disposal of garbage,
ash, and rubbish for the entire Borough for the period from November 1, 2014,
through October 31, 2017. In July 2014, the Borough issued an amended RFP which
adjusted yardage specifications and included new dates for the bid deadline and the
opening of the bids. The RFP included proposal guidelines that required all costs to
be “itemized to include an explanation of all fees and costs” and reserved the
Borough’s right “to reject any or all of the bids received and to waive informalities
and minor irregularities in proposals received.” (Reproduced Record (R.R.) at 47-
48.)1 The RFP also stated that “[t]he award will be made to the responsible and
qualified offeror whose proposal, conforming to the invitation, will be most
advantageous to the Township [sic] in price for the services and other factors
considered.” (R.R. at 48.)
             The RFP acknowledged that the services provided by Harbaugh since
1993 had been “satisfactory with contract compliance.” (R.R. at 49.) However, the
RFP noted that the Borough Council believed “that an open and competitive bidding
process from various vendors [was] indicated,” with the goal to “provide Meyersdale
residents and businesses with high quality, cost effective refuse services.” Id. The
RFP then specified that any bid must contain the following items:

             A. Detailed plan and schedule for the pick-up and disposal
             of garbage, ashes and rubbish to include specific days,
             specific locations, times, etc. To include bag/can limits per
             resident. To include specific requirements for bags/cans.

             B. Qualifications of Vendor to provide services to
             Meyersdale Borough to include licensing, certifications,
             credentials and references.


      1
        The Borough’s reproduced record does not include the lower case “a” as required by
Pa.R.A.P. 2173.



                                            2
C. Provide documentation certifying the vendor’s right to
use a solid waste or a combination of facilities which are
properly licensed and approved by the state of
Pennsylvania.

D. Inventory of equipment and vehicles available to be used
within Meyersdale Borough to include licensing, specific
type and number of equipment, specific types of vehicle,
preventive maintenance plan and schedule for all
equipment/vehicles.

E. Certificate of all insurance policies to include liability,
auto, workmen’s compensation.

F. Names, experience, certifications and qualifications of
workers employed by Vendor who will be providing
services to Meyersdale Borough.

G. Plan and schedule for the billing and collection of fees to
residents to include sample bills, procedure for non-
collection of fees.

H. Separate plan for the Borough to handle the billing and
collection of fees to residents.

I. Rates per month for the following services:

      Cubic yard (See attached list of business)

      Residential

      Residential with ashes

      Business (See attached list of business)

      Business with ashes (See attached list of business)

      Churches (See attached list of churches)

J. Plan, procedure, schedule and rates for the removal of
large bulky items, such as appliances, mattresses, furniture,
etc.


                               3
             K. Rates to include any increases for life of contract. As
             well as plan to reopen contract for price negotiations.

             L. Exclusive rights franchise fee that Vendor will pay to
             Meyersdale Borough which will include set amount to be
             paid and schedule of payment.

             M. Meyersdale Borough plans to include roll off dumpsters
             as part of this contract. We are requesting a bid for rates for
             roll off dumpsters be included with your bid. Rates should
             be listed for 10 yard, 15 yard and 30 yard dumpsters.
             Include weight limits for full and time limits for use.
             Include rates for any other size roll off dumpsters you may
             own.
(R.R. at 49-50.)
             The Borough received five bids, including one from Harbaugh and
another from Burgmeier Hauling (Burgmeier). The Borough rejected Harbaugh’s as
non-compliant with the RFP. Specifically, the Borough found that Harbaugh’s bid
did not include proper pricing or an itemized explanation of all fees and costs, did not
state disposal rates for the container sizes requested in the RFP, and included disposal
services that were not requested in the RFP. The Borough ultimately recognized
Burgmeier as the lowest responsible bidder and awarded Burgmeier the contract.
             On September 2, 2014, Petitioners, all tax-paying residents of the
Borough, filed a petition for preliminary injunction with the trial court seeking to
enjoin the Borough from entering into a contract with Burgmeier. Petitioners alleged
that Burgmeier was not the lowest responsible bidder. The Borough filed an answer
denying this allegation. The parties thereafter filed a stipulation with the trial court
stating that the facts necessary to decide the case could be derived from the amended
RFP and the respective bids of Harbaugh and Burgmeier. The parties also sought the
permission of the trial court to forego oral argument and submit written briefs, which
the trial court granted. By order dated September 26, 2014, the trial court admitted


                                           4
the stipulation and directed the parties to file their respective briefs on or before
October 1, 2014.


                                    Trial Court Opinion
              Following the submission of these briefs, by order dated October 7,
2014, the trial court granted Petitioners’ petition for a preliminary injunction. The
trial court further directed the Borough to terminate its contract with Burgmeier and
to accept Harbaugh’s bid.2 In an accompanying opinion, the trial court did not
address the necessary elements for a preliminary injunction, nor did the trial court
explain how Petitioners satisfied these elements. Instead, the trial court began its
analysis by setting forth the legal standard relative to municipal contracts and
proceeded to address the substantive issues regarding the bids of Harbaugh and
Burgmeier.
              The trial court first noted that section 1402(a) of the Borough Code
requires that all contracts in excess of $18,500.00 be awarded to the “lowest qualified
and responsible bidder.” 8 Pa.C.S. §1402(a). The trial court referenced the following
standard, derived from our Supreme Court’s decision in Kratz v. City of Allentown,
155 A. 116, 117 (Pa. 1931), to determine which party is the “lowest qualified and
responsible bidder”:

              The statute provides that municipal contracts be let to the
              lowest responsible bidder, but the courts have uniformly
              held that the question of who is the lowest responsible
              bidder is one for the sound discretion of the proper
              municipal authority, and does not necessarily mean the one
              whose bid on its face is lowest in dollars, but includes

       2
         By including these directives, the trial court effectively transformed its order from one
granting preliminary injunctive relief to a final order granting permanent injunctive relief.


                                                5
             financial responsibility, also integrity, efficiency, industry,
             experience, promptness, and ability to successfully carry
             out the particular undertaking, and that a bond will not
             supply the lack of these characteristics. At the same time, it
             is held that to award the contract to a higher bidder
             capriciously without a full and careful investigation is an
             abuse of discretion which equity will restrain. Where a full
             investigation discloses a substantial reason which appeals to
             the sound discretion of the municipal authorities they may
             award a contract to one not in dollars the lowest bidder.
             The sound discretion, which is upheld, must be based upon
             a knowledge of the real situation gained by a careful
             investigation.
(Trial court op. at 3) (citations omitted).
             The trial court concluded that Harbaugh was a qualified and responsible
bidder, noting that the record was “absolutely void of any reason why Harbaugh’s bid
was not accepted based on any of the factors outlined in Kratz” and that the RFP
itself recognized that Harbaugh’s performance over the years had been “satisfactory.”
(Trial court op. at 4.) The trial court also concluded, after reviewing the bids and
conducting its own mathematical calculations, that Burgmeier’s bid would cost
Borough residents and businesses in excess of $100,000.00 more than Harbaugh’s bid
over the term of the contract. The trial court rejected the Borough’s argument that
Harbaugh’s flat-rate bid of $10,475.00 per month in the event the Borough performs
the billing was ambiguous.
             Additionally, after analyzing the bids of Harbaugh and Burgmeier, the
trial court concluded that the former complied with the RFP, while the latter did not.
Regarding Burgmeier’s bid, the trial court stated that it did not include the required
documentation under Item C certifying its “right to use a solid waste or a
combination of facilities which are properly licensed and approved by the state of
Pennsylvania.” (R.R. at 49.) Regarding Harbaugh’s bid, the trial court stated that,
contrary to the Borough’s determination, Harbaugh included an exhibit which met the

                                              6
requirements of Item M by setting forth rental charges for 4, 8, 10, 15, 20, and 30-
yard dumpsters. Next, the trial court concluded that insofar as Harbaugh’s bid set
forth a flat-rate fee of $10,475.00 per month, it complied with the “separate plan”
requirement in Item H in the event the Borough does the billing. Finally, the trial
court concluded that Harbaugh’s bid complied with Item L by stating that no
franchise fee would be payable for regular monthly collections should the Borough
do the billing, but that it would pay 5% of all fees generated from other services, such
as roll-off boxes, dumpsters, extra pickups, and demolition removal.


                                Motion for Reconsideration
              The Borough thereafter filed a motion for reconsideration with the trial
court, reiterating its argument that Harbaugh was not the lowest responsible bidder
because Harbaugh’s bid failed to conform to the RFP.                        The Borough also
acknowledged the flaw in Burgmeier’s bid as recognized by the trial court and
suggested that it should be allowed to reject all bids and re-bid the contract.
Petitioners filed an objection alleging that the Borough’s motion for reconsideration
was improper and simultaneously filed an answer denying the material allegations of
the Borough’s motion. Petitioners also contended in their answer that the Borough’s
motion raised issues and requested relief, i.e., to re-bid the contract, which were not
raised or requested below, and hence, are now waived. By order dated December 3,
2014, the trial court sustained Petitioners’ objection and struck the Borough’s motion
for reconsideration.3      However, while this motion was pending, on November 6,
2014, the Borough filed a notice of appeal with the trial court.4

       3
          The trial court issued an opinion explaining that the Borough’s motion raised issues
regarding Harbaugh’s bid that were considered and rejected in its original opinion, as well as other
issues, including Harbaugh’s bid was beyond the scope of the RFP and that it should be able to
(Footnote continued on next page…)
                                                 7
                                            Discussion
               On appeal,5 the Borough argues that the trial court erred as a matter of
law in: concluding that Harbaugh was the lowest responsible bidder; determining that
it did not have the right to reject any and all bids; and expanding the scope of the RFP
from a curb side residential and business service to include demolition removal and
other services not solicited in the RFP. However, before we reach the merits of these
arguments, we must address Petitioners’ argument that the Borough is precluded
from raising any issues on appeal because it did not file a motion for post-trial relief
with the trial court.


                                 Motion for Post-Trial Relief
               Petitioners correctly note that failure to file a motion for post-trial relief
results in a waiver of all issues for appellate review and requires that the appeal be
dismissed. Borough of Harveys Lake v. Heck, 719 A.2d 378, 380 (Pa. Cmwlth.


(continued…)

reject all bids, that were waived because they were not raised below and only first raised in the
motion for reconsideration. (Supplemental Reproduced Record (S.R.R.) at 11b-27b.)

       4
         The trial court did not issue a further opinion in support of its order under Pa.R.A.P.
1925(a), but instead relied on its previous opinions.
       5
          Our standard of review of a trial court’s decision to grant or deny a preliminary injunction
is highly deferential. Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995,
1000 (Pa. 2003). As such, “we do not inquire into the merits of the controversy, but only examine
the record to determine if there were any apparently reasonable grounds for the action of the court
below. Only if it is plain that no grounds exist to support the decree or that the rule of law relied
upon was palpably erroneous or misapplied will we interfere with the decision of the [trial court].”
Id.



                                                  8
1998). However, a motion for post-trial relief is not necessary when appealing an
order granting or denying a preliminary injunction; rather, this order is appealable as
of right.   See Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 311(a)(4)
(appeal may be taken as of right from “[a]n order that grants or denies, modifies or
refuses to modify, continues or refuses to continue, or dissolves or refuses to dissolve
an injunction . . . .”); Beaver County v. David, 83 A.3d 1111, 1113 (Pa. Cmwlth.),
appeal denied, 93 A.3d 464 (Pa. 2014) (order granting preliminary injunction is
appealable as of right under Pa.R.A.P. 311(a)(4)).


                         Preliminary/Permanent Injunction
             We now turn to the merits. As noted above, Petitioners initiated this
matter by filing a motion with the trial court seeking a preliminary injunction
enjoining the Borough from entering into a contract with Burgmeier. A court may
grant a preliminary injunction only where the moving party establishes the following
elements: (1) the injunction is necessary to prevent immediate and irreparable harm
that cannot be adequately compensated by damages; (2) greater injury would result
from refusing an injunction than from granting it, and, concomitantly, the issuance of
an injunction will not substantially harm other interested parties in the proceedings;
(3) the injunction will properly restore the parties to their status as it existed
immediately prior to the alleged wrongful conduct; (4) the party seeking the
injunction is likely to prevail on the merits; (5) the injunction is reasonably suited to
abate the offending activity; and (6) the injunction will not adversely affect the public
interest. Dragani v. Borough of Ambler, 37 A.3d 27, 31 (Pa. Cmwlth.), appeal
denied, 49 A.3d 444 (Pa. 2012). “For a preliminary injunction to issue, every one of
the prerequisites must be established; if the petitioner fails to establish any one of



                                           9
them, there is no need to address the others.” County of Allegheny v. Commonwealth,
544 A.2d 1305, 1307 (Pa. 1988).
               Moreover, a preliminary injunction is intended to preserve the status quo
and prevent imminent and irreparable harm that might occur before the merits of the
case can be heard and determined. After a preliminary injunction is awarded or
denied, the case proceeds for a final hearing on the merits. Soja v. Factoryville
Sportsmen’s Club, 522 A.2d 1129, 1131 (Pa. Super. 1987).                          The preliminary
injunction proceeding is distinct from the final hearing on the merits.                       Kee v.
Pennsylvania Turnpike Commission, 743 A.2d 546, 549 (Pa. Cmwlth. 1999). Indeed,
it is well established that separate standards govern a request for a preliminary
injunction and a request for permanent injunctive relief: a preliminary injunction
looks for the presence of imminent, irreparable harm, whereas a permanent injunction
is warranted if no adequate remedy at law exists for a legal wrong.6 City of Chester
v. Chester Redevelopment Authority, 686 A.2d 30, 35 (Pa. Cmwlth. 1996), appeal
denied, 695 A.2d 787 (Pa. 1997). Consequently, we have held that it is inappropriate
for a court to treat a hearing for a preliminary injunction as a final hearing and as a
basis for a permanent injunction, unless the parties stipulate to the contrary. Kee;
Berger by & through Berger v. West Jefferson Hill School District, 669 A.2d 1084
(Pa. Cmwlth. 1995).
               As noted above, the trial court did not address the necessary elements for
a preliminary injunction in its opinion, nor did it explain how Petitioners satisfied
each of these elements in this case.              Additionally, the stipulation executed by
Petitioners and the Borough merely addresses the controlling facts in this matter and

       6
         A court’s final disposition of a request for permanent injunctive relief is independent of its
determination relating to preliminary injunctive relief and the denial of the latter does not foreclose
an order for a permanent injunction. Soja.


                                                  10
makes no mention of treating the preliminary injunction proceedings as a final
hearing on the merits for the purpose of entering permanent injunctive relief.
Nevertheless, the trial court engaged in a substantive analysis of the bids of Harbaugh
and Burgmeier and ultimately directed the Borough to terminate its contract with
Burgmeier and to accept Harbaugh’s bid, effectively granting permanent injunctive
relief. Such relief was clearly not appropriate given the stage of the proceedings
before the trial court. Furthermore, the trial court’s complete lack of analysis of the
necessary elements relative to preliminary injunctive relief precludes this Court from
conducting any meaningful review of the trial court’s decision. As we recently noted
in Riverfront Development Group, LLC v. City of Harrisburg Zoning Hearing Board,
109 A.3d 358, 370 (Pa. Cmwlth. 2015), where a record is not adequate for appellate
review, a remand is necessary for a zoning hearing board “to develop the record and
make the necessary findings.” Similarly, here, a remand is necessary for the trial
court to make appropriate findings regarding the requisite elements for a preliminary
injunction.
              Accordingly, the order of the trial court is vacated and the matter is
remanded to the trial court for further findings consistent with this opinion.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                           11
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Harold Lindeman, Jamie Livengood          :
and Matthew Beeman                        :
                                          :    No. 2063 C.D. 2014
             v.                           :
                                          :
The Borough of Meyersdale,                :
Somerset County,                          :
                 Appellant                :


                                      ORDER


             AND NOW, this 30th day of December, 2015, the order of the Court
of Common Pleas of Somerset County (trial court), dated October 7, 2014, is
hereby vacated. The matter is remanded to the trial court for further findings
consistent with this opinion.
             Jurisdiction relinquished.



                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge
