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BOROUGH WILKINSBURG v. MAXINE C. HORNER (04/18/85)

decided: April 18, 1985.

BOROUGH OF WILKINSBURG, APPELLANT
v.
MAXINE C. HORNER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Maxine C. Horner v. Borough of Wilkinsburg, No. GD 84-6292.

COUNSEL

Virginia I. Cook, Borough Solicitor, for appellant.

Joseph Sabino Mistick, Mistick & Giltinan, P.C., for appellee.

E. J. Strassburger, with him, Charles J. Avalli, Strassburger, McKenna, Messer, Shilobod & Gutnick, for intervenor, Clark Sanitation Services, Inc.

Judges Craig and Doyle and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 88 Pa. Commw. Page 595]

The Borough of Wilkinsburg appeals an order of the Court of Common Pleas of Allegheny County which granted a preliminary injunction to taxpayer Maxine Horner, enjoining the borough from performing a refuse collection contract with Clark Sanitation under a renewal clause allegedly in violation of the competitive bidding requirements of The Borough Code.*fn1

We agree with the borough that Clark Sanitation, who intervened upon appeal but was not a party before the trial court, is an indispensable party to the taxpayer's equity suit to enjoin the borough from performing its contract with Clark. Because the failure

[ 88 Pa. Commw. Page 596]

    to join an indispensable party deprives a court of jurisdiction, Oas v. Commonwealth, 8 Pa. Commonwealth Ct. 118, 301 A.2d 93 (1973), we must reverse and remand without reaching the substantive issues concerning the validity of the contract and the adequacy of the bond which the court required the taxpayer to post.

In Hartley v. Langkamp, 243 Pa. 550, 555-56, 90 A. 402, 403 (1914), the Pennsylvania Supreme Court set forth the following general rule:

A party in an equity action is indispensable when he has such an interest that a final decree cannot be made without affecting it, or leaving the controversy in such a condition that a final determination may be wholly inconsistent with equity and good conscience. That is to say, his presence as a party is indispensable where his rights are so connected with the claims of the litigants that no decree can be made between them without impairing such rights.

In Mechanicsburg Area School District v. Kline, 494 Pa. 476, 481, 431 A.2d 953, 956 (1981), the Supreme Court enumerated the following factors which a court should consider in ...


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