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LUITWEILER ET AL. v. NORTHCHESTER CORPORATION (05/22/74)

decided: May 22, 1974.

LUITWEILER ET AL., APPELLANTS,
v.
NORTHCHESTER CORPORATION



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.

COUNSEL

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. ...


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