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

COMMONWEALTH COURT OF PENNSYLVANIA


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 from allowing both cases to proceed

[ 77 Pa. Commw. Page 254]

    simultaneously, in a race to judgment. The trial court has the inherent power to stay the proceedings in the second suit during the pendency of the first.*fn5

Should the first case, National, reach final judgment on the state claim, that determination will be binding upon Klein's suit under the Sica rule. If the National case is settled, as the Haab case was, or otherwise discontinued, the court may lift the stay and permit Klein's case to go forward.*fn6

Accordingly, we reverse and remand with direction that the case be stayed pending final judgment or other disposition in National Heat and Power Co. v. The City of Philadelphia and United Fuel Oil & Burner Co., Inc.

Order

Now, September 22, 1983, the decision of the Court of Common Pleas of Philadelphia, No. 3395, dated July 28, 1982, is reversed and the case is remanded to that court with the direction that proceedings in the case be stayed pending final judgment or other disposition of National Heat and Power Co. v. The City of Philadelphia and United Fuel Oil & Burner Co., Inc., docketed as Civil Action 82-3179 in the United States District Court for the Eastern District of Pennsylvania.

Jurisdiction relinquished.

Disposition

Reversed and remanded. Proceedings to be stayed until disposition of similar case in United States District Court for the Eastern District of Pennsylvania.


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