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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 Ag-gRite for a School project. P picked up the AggRite from D and used it for the paving work, in accordance with the its Project Specifications. P completed the paving work in December 2001. The pavement ultimately developed extensive cracking in February 2002. P was forced to remedy the defective work. P performed the remedial work at no cost. The remedial work included the removal and appropriate disposal of the AggRite, which was classified as a hazardous waste material. P requested D to arrange for the removal and disposal of the AggRite. D did not do so, and P provided notice to D of its intention to recover costs. 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. P alleged breach of contract; breach of implied warranty of merchantability; breach of express warranty of merchantability; breach of warranty of fitness for a particular purpose; and promissory estoppel. D demurrered to all five counts. On the breach of contract claim, the trial court determined that 'any alleged agreement between the parties is unenforceable for lack of consideration.' The trial court also stated, 'the facts as pleaded do not support an inference that disposal costs were part of any bargaining process or that D offered the AggRite with an intent to avoid disposal costs.' The trial court dismissed Count I for two reasons related to the necessary element of consideration: one, the allegations of the Complaint established that P had received a conditional gift from D, and, two, there were no allegations in the Complaint to show that D's avoidance of disposal costs was part of any bargaining process between the parties. The court dismissed the complaint. P appealed.

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