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MARCUS KATZEN v. LEO KAROLESKI (04/17/85)

decided: April 17, 1985.

MARCUS KATZEN, APPELLANT
v.
LEO KAROLESKI, MAYOR, ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Clearfield County in case of Marcus Katzen v. Leo Karoleski, Mayor and James H. Matthews, Dominick Suplizio and Essie Quinn, both individually and as members of City Council of the City of DuBois, No. 82-42 Equity 1982.

COUNSEL

Bruce E. Cooper, for appellant.

Toni M. Cherry, with her, Edward V. Cherry, for appellees.

Judges Craig, Colins and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 88 Pa. Commw. Page 599]

Marcus Katzen (Appellant) appeals from an order of the Court of Common Pleas of Clearfield County (trial court) which sustained preliminary objections of the Appellees, the Mayor and members of the City Council of the City of DuBois, and dismissed Appellant's complaint in equity. We reverse and remand.

The City of DuBois is the owner of a parcel of real estate currently being used as a municipal parking lot. During October of 1982 the City was considering a proposal by the United States Postal Service to purchase the parcel. On October 21, 1982 Appellant, who is a resident and taxpayer of the City of DuBois, wrote a letter to the City Solicitor stating that he was interested

[ 88 Pa. Commw. Page 600]

    in purchasing the parcel at a higher price than that proposed by the United States Postal Service and indicating his intention to erect a commercial building which would increase the City's tax base, as opposed to the non-taxable use by the federal government. On November 8, 1982, the City Council approved a proposal to grant the United States Postal Service an option to purchase the parcel. On November 24, 1982, Appellant sent another letter to the City Solicitor reiterating his interest in purchasing the parcel. When Appellant received no answer to his letters, he filed a complaint in equity alleging a breach of fiduciary duty and an abuse of discretion by the Mayor and City Council and seeking to enjoin the sale of the parcel to the Postal Service, to order the City Council to consider his offer, and to be awarded damages.

Appellees filed preliminary objections to the complaint claiming, in pertinent part, that in order to assert taxpayer standing Appellant was required to bring a class action in accordance with the Pa. R.C.P. 1701-1716. On April 18, 1983, the trial court issued an order dismissing Appellant's complaint on the ground that Appellant was required to comply with the class action rules but granted Appellant leave to file an amended complaint.

Appellant filed an amended complaint setting forth both personal (Count I) and class action (Count II) allegations. Appellees again filed preliminary objections claiming that Appellant failed to aver facts indicating that he would adequately protect the interests of the class as required by Pa. R.C.P. 1702, 1704, and 1709. On this basis, the trial court dismissed Appellant's amended complaint on September 21, 1983.

Appellant appeals to this Court asserting that the trial court erred as a matter of ...


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