
    Petition to Sell Lands in Shenango Township
    
      Robert White and Robert Jamison, for city.
    
      J. Elder Bryan, for respondents.
    
      Walter A. Kieler, for bidders.
    September 17, 1959.
   Lamoree, P. J.,

— The City of New Castle advertised for bids for the sale of 3.3 acres of land owned by the said city for playground and recreational purposes, being a portion of other lands owned by the City of New Castle and used as a municipal golf course. The 3.3 acres here involved by action of the city council were declared to be no longer needed by the city for playground and recreational purpose, and said city accordingly advertised for bids for the sale of the 3.3 acres, said advertisement appearing in a newspaper of general circulation throughout Lawrence County on March 10, 12 and 14, 1959.

The advertisement of notice of the sale set March 24, 1959, at 10 a.m., as the time fixed for the opening of bids for the purchase of the land. The notice of sale as advertised contained the following paragraph:

“Each bidder shall submit his bid in a sealed envelope marked ‘For Purchase of Land in Shenango Township’, and shall deposit with his bid cash, a certified check, or bidder’s bond for at least ten (10%) percent of the amount of his bid, or for $1,000.00, whichever is larger and shall state how and when the balance of his bid shall be paid.”

Six bids were received by the City of New Castle for the purchase of the land, ranging in price from $1,005 to $5,300. It is here necessary to only consider the bid of E. Morrone Sons in the amount of $5,300 and the bid of Reliable Rentals Company in the amount of $4,900 because of the fact that the four other bids are substantially less than the two bids we must here consider.

E. Morrone Sons, by Paul Morrone, exceptant here, placed a sealed bid with the city clerk in the amount of $5,300 and enclosed therewith a check for 10 percent of his bid, which amounted to the sum of $530.

Anthony R. Conn and Anthony F. Cioffi, Reliable Rentals Company, placed a bid with the city clerk in the amount of $4,900 and enclosed therewith the sum of $1,000 in conformity with the sale notice as advertised by the City of New Castle.

Subsequently, the City Council of the City of New Castle awarded the property here involved to Anthony A. Conn and Anthony M. Cioffi, Reliable Rentals Company, for their bid of $4,900, which amount was $400 less than the amount bid by E. Morrone Sons on their bid of $5,300.

By Ordinance No. 5786, the Council of the City of New Castle, on June 23, 1959, authorized the mayor of the city to execute and deliver to Anthony R. Conn and Anthony F. Cioffi, Reliable Rentals Company, a special warranty deed for the 3.3 acres here involved, at their bid of $4,900, subject to the approval by the Court of Common Pleas of Lawrence County, as provided by section 3721 of The Third Class City Code of June 23, 1931, P. L. 932, as amended by the Act of June 28, 1951, P. L. 662, sec. 37.2, 53 PS §38721.

On July 10, 1959, the City of New Castle filed its petition in the Court of Common Pleas of Lawrence County, praying for the court’s approval of the sale of the 3.3 acres to Anthony R. Conn and Anthony F. Cioffi. On July 17, exceptant filed an answer to the petition1 for the court’s approval, excepting to the City of New Castle awarding the property to Conn and Cioffi for a sum of $400 less than the amount offered the City of New Castle for the premises by ex-ceptant. A hearing on the petition, the answer and exceptions was held before the court of common pleas on August 14,1959.

The City of New Castle contends that the award of the property to Conn and Cioffi on their bid of $4,900 was proper even though $400 less than the amount bid by exceptant here for the reason that Conn and Cioffi accompanied their bid with the sum of $1,000, which was more than 10 percent of their bid for the purchase of the land, and further, that the bid offered by exceptant in the amount of $5,300 was void by reason of the fact that the bid was accompanied by a cheek in the amount of $530, or 10 percent of the $5,-300 bid by exceptant for the property, whereas the bid of exceptant should have been accompanied by a check in the sum of $1,000.

While the court is of the opinion that the bid of Marrone in the amount of $5,300 was not in strict technical compliance with the sale notice as advertised by the City of New Castle, yet we cannot overlook the fact that the amount bid by Morrone was $400 in excess of the $4,900 bid by Conn and Cioffi. Yet we are also of the opinion that the bid of Morrone which was $400 more than the amount bid by Cioffi and Conn is a substantial amount deserving of greater consideration than was accorded it by council when they awarded the land to Conn and Cioffi.

While we are aware that the appellate courts have held in some cases that a higher price is not in itself a controlling factor in the court’s exercise of its discretion in acting upon such a petition as is now before us, yet the court under the circumstances here is of the opinion that the bid of Morrone, being in excess of the bid of Cioffi and Conn in the amount of $400, is a substantial amount and should have been considered as such by the City of New Castle before awarding the land to Conn and Cioffi.

Accordingly we are making the following

Order

Now, this September 17, 1959, the prayer of the petition of the City of New Castle for the approval of the court for the sale of the land here involved to Anthony R. Conn and Anthony F. Cioffi is refused and the said sale is not approved. Costs to be paid by the City of New Castle.

Now, this September 17, 1959, an exception is sealed to the above order for petitioners.  