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HARVEY KLEIN v. CITY PHILADELPHIA AND UNITED FUEL OIL & BURNER CO. (09/22/83)

decided: September 22, 1983.

HARVEY KLEIN, APPELLANT
v.
CITY OF PHILADELPHIA AND UNITED FUEL OIL & BURNER CO., INC., APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Harvey Klein v. City of Philadelphia and United Fuel Oil and Burner Company, No. 3395 July Term, 1982.

COUNSEL

Neil A. Morris, with him, Gary Green, Sidkoff, Pincus, Greenberg & Green, P.C., for appellant.

Leslie Simkin, Assistant City Solicitor, with her, Gail Mitchell, Paul R. Rosen and Jill A. Douthett, Deputy City Solicitors, and Mark A. Aronchick, Acting City Solicitor, for appellees.

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

Author: Craig

[ 77 Pa. Commw. Page 252]

Harvey Klein appeals from a decision of the Court of Common Pleas of Philadelphia, which dismissed his taxpayer's suit challenging the award of two municipal contracts by the City of Philadelphia to United Fuel Oil & Burner Co., Inc. The ultimate issue is whether or not the trial court erred in dismissing Klein's complaint, on lis pendens grounds, in that an earlier taxpayer's suit on the same contracts was pending in federal court.*fn1

After the city awarded the contracts to United, F.C. Haab, Co., Inc., a disappointed bidder, filed a

[ 77 Pa. Commw. Page 253]

    taxpayer's action to contest that award. Haab settled its case, and a second disappointed bidder, National Heat and Power Co., then filed a taxpayer's suit. Because National's complaint alleged a federal claim, upon petition it was removed to the United States District Court for the Eastern District of Pennsylvania,*fn2 where it is currently pending. Klein then filed this action, the third taxpayer's suit, in the common pleas court.

The lis pendens, or prior action pending, doctrine permits a court to dismiss a suit when a pending case involves (1) the same parties, (2) the same cause of action and (3) the same relief.*fn3 Klein contends that the trial court did not properly apply those criteria. We agree.

Although both the National case and Klein's case are taxpayer's actions, the plaintiffs in the two suits are not the same party. The trial court did not have the benefit of our recent decision, Sica v. City of Philadelphia, 77 Pa. Commonwealth Ct. 97, 465 A.2d 731 (1983), where we held that, even though the plaintiff taxpayers in two taxpayer's suits are not the same party, a judgment in one suit, when reached, is binding in the second because of the representative nature of the taxpayer's action.*fn4

The trial court need not, however, sanction the duplication of effort and waste of judicial resources that would result ...


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