Pennsy Supply, Inc. v. American Ash Recycling Corp. Of Pennsylvania

895 A.2d 595 (2006)

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Nature of the Case

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Facts

Northern York High School entered into a construction contract with P for the paving of driveways and a parking lot. P was required to use certain base aggregates. The Project Specifications permitted the substitution of the aggregates with an alternate material known as Treated Ash Aggregate (TAA) or AggRite. The Project Specifications included a 'notice to bidders' of the availability of AggRite at no cost from D, a supplier of AggRite. The Project Specifications also included a letter to the Project architect from D confirming the availability of a certain amount of free AggRite on a first come, first served basis. P contacted D and informed D that it would require approximately 11,000 tons of AggRite for the Project. P picked up the AggRite from D and used it for the paving work, in accordance with the Project Specifications. About a year later, the pavement developed extensive cracking. P performed the remedial work during the summer of 2003 at no cost to the School. AggRite is classified as a hazardous waste material by the Pennsylvania Department of Environmental Protection. P requested d to arrange for the removal and disposal of the AggRite. D refused. P sued D. P alleged that the remedial work cost it $251,940.20 to perform and that it expended an additional $133,777.48 to dispose of the AggRite it removed. D demurrered to all five counts. The trial court determined that 'any alleged agreement between the parties is unenforceable for lack of consideration.' The court dismissed the complaint. P appealed.