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decided: May 22, 1974.


Appeal from decree of Court of Common Pleas of Bucks County, No. 72-8409, in case of J. Preston Luitweiler, Marie Morris, Mary Kane, individually and on behalf of others similarly situated and Leonarda Nieves, Elena Agosto, Lucy Soto, individually and on behalf of others similarly situated and Felix Watsko t/a Felix Watsko's Propane Service v. Northchester Corporation.


Stanton C. Kelton, with him Bucks County Legal Aid Society, for appellants.

Steven A. Cotlar, with him Cotlar and Mantz, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts concurs in the result.

Author: Pomeroy

[ 456 Pa. Page 531]

This is an appeal from a decree of the Court of Common Pleas of Bucks County sustaining preliminary objections to the appellants' complaint in equity.*fn1

[ 456 Pa. Page 532]

The complaint, which has been brought as a class action, avers that the appellants are tenants of the appellee in a large apartment complex; that the appellants' water is heated by bottled propane gas, which can be purchased from the appellee-landlord for $10 per 100 pound tank, or from an independent supplier for $8 per 100 pound tank; and that the appellee raises the rent of any tenant purchasing gas from someone other than the landlord by the amount of $2 per month. Two of the appellants, it is averred, are purchasing gas from an independent supplier, and their rent, accordingly, has been raised $2 per month; the remaining two appellants are purchasing gas from the landlord, but allege that they are doing so only because they are restrained by the $2 per month surcharge from purchasing their gas elsewhere. Thus the appellants have divided themselves into two groups of plaintiffs, each group purporting to bring the action on behalf of the members of that group and others similarly situated,*fn2 seeking to enjoin the landlord's practice, as above described, to recover past payments of the surcharge, and to be awarded punitive damages in the amount of $10,000.*fn3

The defendant filed preliminary objections to the complaint, asserting (1) that the plaintiffs have an adequate remedy at law, (2) that the members of the two

[ 456 Pa. Page 533]

    asserted classes are not too numerous for joinder, (3) that the plaintiffs will not adequately represent those classes, and (4) that the plaintiffs do not come into equity with clean hands.*fn4 The court below sustained these objections and dismissed the complaint.*fn5

We note preliminarily that the objection that plaintiffs are guilty of unclean hands is not a proper matter for preliminary objections. Pa. R. C. P. No. 1017(b). This is an affirmative defense, Shapiro v. Shapiro, 415 Pa. 503, 505, 204 A.2d 266 (1964), and should be raised as new matter under Pa. R. C. P. No. 1030. The appellee conceded this point below, and does not argue it on appeal.

[ 456 Pa. Page 534]

We also find the assertion that plaintiffs have an adequate remedy at law to be without merit. We have held consistently that equitable relief is available to prevent a multiplicity of lawsuits. Schrader v. Heath, 408 Pa. 79, 83, 182 A.2d 696 (1962); Pennsylvania State Chamber of Commerce v. Torquato, 386 Pa. 306, 329, 125 A.2d 755 (1956); Schwartz v. Laundry & Page 534} Linen Supply Drivers' Union, Local, 187, 339 Pa. 353, 358, 14 A.2d 438 (1940). In the present case, the plaintiffs allege a monthly imposition of an illegal surcharge; in view of the continuing nature of the alleged injury, relief at law could be obtained only through a succession of damage actions. Equity, consequently, is the proper forum for this complaint.

The remaining two preliminary objections challenge the propriety of maintaining this action as a class action under Pa. R. C. P. No. 2230.*fn6 The first challenge is that appellants will not adequately represent all persons claimed to be in the classes. In determining the ability of a plaintiff to represent adequately a purported class, as required by the rule, it must appear that the relief sought is beneficial to the class members, and that the plaintiffs' interests be consonant with those of the other members of the class. Penn Galvanizing Co. v. Philadelphia, 388 Pa. 370, 379, 130 A.2d 511 (1957); Oas v. Commonwealth, 8 Commonwealth Ct. 118, 125-27, 301 A.2d 93 (1973). The relief sought in the present case is facially beneficial to both of the classes set forth in the complaint, since it is directed at removing a financial burden upon the members of both groups when they seek to purchase propane gas from someone other than the appellee. Nor does it appear that the plaintiffs have any interests which are adverse to those of the class; they stand in the same relationship to the landlord as do the tenants whom they would

[ 456 Pa. Page 535]

    represent and they would benefit from the relief sought to the same extent as all other members of their class.

Appellee's other challenge to the maintenance of this suit as a class action is that the persons constituting the two classes are not so numerous as to make it impracticable to join them as parties. The appellants, in their complaint, assert that more than half of the 1100 units in appellee's apartment complex use bottled gas for heating their water, so that it is clearly possible that both classes identified in the complaint contain enough members to justify a class action. The chancellor's opinion expresses doubt that there are indeed other persons similarly situated to the named plaintiffs in either of the asserted classes, and states that "[t]his is a class action in name only". On the record before us, however, we are not able to determine this matter, and are unable to perceive how the trial court could do so. When factual issues are created on preliminary objections, the trial court should resolve the dispute by receiving evidence thereon through interrogatories, depositions or an evidentiary hearing: Peters Sportswear Co., Inc. v. Eastland Woolen Mills, Inc., 427 Pa. 135, 136-37, 233 A.2d 557 (1967); Szekely v. Abilene Flour Mills Co., 211 Pa. Superior Ct. 442, 446, 237 A.2d 242 (1967); Pa. R. C. P. No. 1028(c). No facts were developed in this case to permit an informed disposition of this class action objection.*fn7

Accordingly, the decree of the court of common pleas is vacated and the case is remanded for further proceedings consistent with this opinion. Costs on appellee.


Decree vacated and case remanded.

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