## Facts

- A school district project allowed substitution of a paving base aggregate with “AggRite,” a treated ash aggregate supplied by American Ash and identified in bid materials as available “at no cost” on a first-come basis.
- Pennsy, a paving subcontractor, requested and collected approximately 11,000 tons of AggRite from American Ash and used it as the base material for the project.
- After completion, the pavement developed extensive cracking; Pennsy was directed to remediate and performed remedial work requiring removal of the AggRite.
- The removed AggRite was classified by environmental authorities as hazardous waste, requiring costly disposal.
- Pennsy alleged American Ash provided AggRite for free to avoid its own disposal obligations and costs and that Pennsy’s acceptance and use of AggRite shifted those costs to Pennsy.
- Pennsy sued for breach of contract, breach of UCC warranties (merchantability, fitness, express), and promissory estoppel.
- The trial court sustained preliminary objections in the nature of demurrers and dismissed the complaint for lack of consideration and failure to state warranty and promissory estoppel claims.

## Issues

1. Whether Pennsy’s allegations that American Ash supplied “free” AggRite to avoid disposal costs sufficiently pleaded consideration for an enforceable contract.
2. Whether the pleaded exchange constituted a “sale of goods” under UCC Article 2, permitting warranty claims, despite no monetary payment.
3. Whether Pennsy adequately pleaded promissory estoppel based on American Ash’s representations and Pennsy’s reliance.

## Decision

- The Superior Court reversed the dismissal and remanded for further proceedings.
- The complaint adequately pleaded consideration because American Ash’s alleged avoidance of disposal costs could be a bargained-for benefit and Pennsy’s acceptance/use (with resulting disposal burden) a bargained-for detriment.
- The allegations were sufficient to treat the transaction as a UCC sale for a “price” payable “in money or otherwise,” where non-monetary cost avoidance could function as the price.
- Pennsy stated a promissory estoppel claim by alleging American Ash made representations expected to induce use of AggRite, Pennsy relied, and Pennsy suffered resulting losses.

## Legal Principles

- Consideration may be shown by a bargained-for exchange involving either a benefit to the promisor or a detriment to the promisee; the alleged economic motivation need not be expressly negotiated if the pleadings support reciprocal inducement.
- Under UCC Article 2, a “price” for a sale of goods may be payable “in money or otherwise”; non-monetary economic advantages (including avoided costs) can satisfy the price element at the pleading stage.
- Promissory estoppel requires a promise reasonably expected to induce action or forbearance, actual reliance, and enforcement necessary to avoid injustice.
- On demurrer, the court accepts as true all well-pleaded facts and reasonable inferences favorable to the non-moving party; factual disputes about motive or the ultimate merits are not resolved on the pleadings.

## Conclusion

The court held that Pennsy’s allegations that American Ash transferred “free” material to obtain the economic benefit of avoided disposal costs were sufficient to plead consideration and a UCC sale, and that Pennsy’s reliance on American Ash’s representations supported promissory estoppel; dismissal on demurrer was therefore improper.


Pennsy Supply, Inc. v. American Ash Recycling Corp. of Pennsylvania, 895 A.2d 595 (Pa. Super. Ct. 2006)