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

895 A.2d 595 (2006)

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Nature of the Case

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Facts

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 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. 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.