Appeal from decree of Court of Common Pleas No. 8 of Philadelphia County, June T., 1965, No. 3889, in case of Ruth M. Faden v. The Philadelphia Housing Authority and H. Gold, Inc.
Ethel S. Barenbaum, with her Herman M. Barenbaum, and Barenbaum & Barenbaum, for appellant.
Joseph Mistrano, with him George E. Peterson, for authority, appellee.
Jerome R. Balka, and Balka and Balka, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Eagen joins in this dissenting opinion.
This is an appeal from the action of the court below sustaining preliminary objections of appellee, the Philadelphia Housing Authority and dismissing the complaint.
Appellant, Ruth M. Faden, brought suit in her capacity as a taxpayer of the City of Philadelphia against the Philadelphia Housing Authority, seeking to set aside a contract between the Authority and H. Gold, Inc., a contractor, and for such other relief as would be just and equitable. The gravamen of her complaint was that the contract in question, which was for the replacement and conversion of coal-fired boilers at an Authority housing project, had not been awarded to the lowest responsible bidder as mandated by the Housing Authorities Law, Act of May 28, 1937, P. L. 955, § 11, as amended, 35 P.S. § 1551.
The Authority filed preliminary objections to the complaint, alleging, inter alia, that a taxpayer lacked standing to challenge Authority action since no tax funds were directly involved. The objections were sustained on this ground and the complaint dismissed. This appeal followed.
Approximately three months subsequent to the filing of the appeal the Authority moved this Court to dismiss the appeal under Supreme Court Rule 41, on the ground that the controlling question had become moot. In support of its motion, the Authority alleged that all work to be performed under the contract had been completed,*fn1 thus dissolving the controversy and
precluding equity from granting the requested relief.
In her answer to this motion, appellant asserted that she was without sufficient knowledge or information to form a belief as to the truth of the Authority's allegations and that all means of proof thereof were in the exclusive control of the Authority. The allegations were therefore denied and proof demanded.
This Court is of the opinion that the motion to dismiss the appeal on the ground that the controlling question had become moot must be denied. Appellee has failed to support its allegations by depositions, as required by Supreme Court Rule 41*fn2 when such allegations are controverted. In ...