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THERESA SICA AND J.J. WHITE v. CITY PHILADELPHIA ET AL. (09/09/83)

decided: September 9, 1983.

THERESA SICA AND J.J. WHITE, INC., APPELLANTS
v.
CITY OF PHILADELPHIA ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Theresa Sica and J.J. White, Inc. v. City of Philadelphia and Redevelopment Authority of the City of Philadelphia and Stofflet & Tillotson, No. 203 May Term, 1982.

COUNSEL

Cornelius C. O'Brien, Jr., O'Brien and Davis, P.C., for appellants.

Leslie F. Simkin, Assistant City Solicitor, with her Mark A. Aronchick, Acting City Solicitor, and Jill A. Douthett, Divisional Deputy City Solicitor, for appellee, City of Philadelphia.

Carl S. Primavera, for appellee, Redevelopment Authority of the City of Philadelphia.

Steven A. Arbittier, with him M. Ellen Moffett, of counsel: Wolf, Block, Schorr and Solis-Cohen, for appellee, Stofflet & Tillotson.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 77 Pa. Commw. Page 98]

Theresa Sica and J.J. White, Inc. (Sica) appeal from a decision of the Court of Common Pleas of Philadelphia County, which dismissed their taxpayer's suit on res judicata grounds. We face a question of first impression, whether judgment in a taxpayer's representative suit concerning the award of a public contract is binding in a later action initiated by a different taxpayer seeking to raise the same issue as to the same contract.

The trial court dismissed Sica's suit because an earlier taxpayer's suit, Orr v. City of Philadelphia, (No. 2047, April Term 1982, Common Pleas Court of Philadelphia, filed April 22, 1982) had reached final judgment. There is no dispute that the subject matter, the cause of action and the capacities of the parties are the same in both suits. The present issue arises because the identities of the initiating parties are different.

Informed by the scholarly analysis of Judge Goodheart in the trial court, we conclude that the approach articulated in the Restatement (Second) of Judgments, ยงยง 41 and 42, best reflects the Pennsylvania Rule as extrapolated from past decisions.

Section 41 provides, in relevant part:

[ 77 Pa. Commw. Page 99]

(1) a person who is not a party to an action but who is represented by a party is bound by and entitled to the benefits of a judgment as though he were a party. A person is represented by a party who is: . . . (e) [t]he representative of a class of persons similarly situated, designated ...


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