(dissenting). The effect of the majority opinion is to hold that a shareholder who has brought an action to recover compensation for services rendered on behalf of a public service corporation, and who opposed a rate hike by that corporation as a ratepayer, without more, is rendered unfit to represent the corporation in a derivative suit. That incapacity would be imposed without regard to the merits of the two suits, or its impact in preventing continued prosecution of the derivative suit. I do not agree since such a holding and result would be contrary to law and reason.
*381The trial court prohibited Barrett from prosecuting the derivative action because “[t]he undisputed facts establish that Barrett’s interests are irreconcilably adverse to and in conflict with the best interest of the corporation and the shareholders which he claims to represent.” That factual conclusion was based on two actions taken by Barrett: (1) his bringing of a suit, still pending, against Southern for compensation, and (2) his opposition as a ratepayer to a requested rate increase.
Barrett brought a suit to recover from Southern the value of his services rendered and expenses incurred on Southern’s behalf in successfully opposing a merger which he alleged would have cost Southern and its shareholders a great many times over the amount he claims as compensation. Should Barrett prevail in that action, he will have established that his efforts resulted in saving Southern and its shareholders from a large financial net loss by (a) preventing a payment of over $250,000 per annum in additional dividends to Greenwich shareholders; (b) preventing Southern’s per share earnings from dropping; (c) preventing the book value of Southern’s stock from dropping approximately $3,500,000; (d) preventing further waste of corporate assets in merger plans; and (e) preventing a drop of $624,000 in Southern’s unrestricted retained earnings. The public utilities commission agreed in substance with Barrett’s objections to the merger, and denied the proposed merger. On those allegations, it can hardly be said that Barrett was “attacking the corporation”; rather, he was seeking only a fraction of what he had saved it.
Barrett appeared before the public utilities commission as a ratepayer in opposition to a requested rate hike by Southern. The trial court suggested *382that that opposition could have adversely affected Southern’s income and the return on its shareholders’ equity. The court, however, failed to give due consideration to the fact that Barrett’s intervention was as a ratepayer and that that intervention questioned the need for the increase in view of “Southern’s cost-accounting methods, cost and income projections and the impact of [its] recent and futile merger application.” Considering the fact that Southern thereafter voluntarily amended its rate request and that the commission granted only a part of that amended request, it cannot he said that Barrett’s opposition as a ratepayer to the original request was unjustified or unreasonable.
From the granting of summary judgment in the derivative action which is before us, the following relevant facts should be noted: (a) the suit was not brought against Southern or its shareholders, but rather on behalf of Southern and its shareholders; (b) the suit was brought against the named directors and officers individually who are alleged to have wasted Southern’s assets; (c) any recovery made as the result of the present derivative action would inure to the benefit of the corporation and its shareholders. Moreover, in the context of a summary judgment proceeding, the court was not warranted in finding without an evidentiary hearing that Barrett possessed an interest irreconcilably adverse to the corporation and shareholders on the basis of his suit for compensation and his opposition to the rate increase.
A conflict of interest does not exist merely because of a simultaneous damage action and a derivative action. Miller v. Fisco, Inc., 63 F.R.D. 132 (E.D. Pa.). With respect to the claims of “conflicts” or *383“adverse interests” the court in Heilbrunn v. Hanover Equities Corporation, 259 F. Sup. 936 (S.D. N.Y.) recognized (p. 939) that “[a]s to the role of plaintiffs as both ‘friend’ and ‘enemy’ to the corporation, this surface duality is in fact a routine matter in the courts. For more purposes than pleading, ‘antagonism’ between the derivative plaintiff and those who really run (i.e., are) the corporation is a common phenomenon. Cf. Smith v. Sperling, 354 U.S. 91, 77 S. Ct. 1112,1 L. Ed. 2d 1205 (1957). We need look no farther for illustration than this case, where the corporation and its able counsel pull the laboring oar on a motion to dismiss a claim purportedly for the corporation’s benefit. In the last analysis, considering only the complaint, which is all we have, the action has a basic goal which entails no real inconsistencies — to air the nature and allegedly wrongful aspects of the exchange offer plaintiffs assail.” (Emphasis added.)
Barrett vigorously contested the allegations that his interests were adverse to or in conflict with those of the corporation. Since Barrett contested those factual claims, the trial court should have received testimony on that issue before deciding that question of fact. Because the court’s conclusions constituted findings of contested facts in a summary judgment proceeding, granting summary judgment was reversible error.
Throughout these proceedings, the defendants have failed to answer the important question: who else except for Barrett remains to represent the interests of the corporation and those Southern shareholders who believe the defendants’ performance has been less than exemplary? Courts have the duty to enforce fair and equitable standards over *384the bringing of derivative actions. But it is quite another matter for courts to bar the maintenance of a suit at the summary judgment stage, where the plaintiff disputes the defendants’ claims of alleged conflicts of interests, and where the plaintiff Barrett is the only shareholder to assert those rights on behalf of the corporation.
Neither should Barrett be barred from maintaining this action on the basis of any purported ratification by Southern’s shareholders. There could not have been any finding of ratification of the defendants’ activities, either at the 1972 special meeting or by way of the 1973 proxy contest, since there was no showing that Southern’s shareholders had- knowledge of all the material facts surrounding the proposed merger with Greenwich.
The function of the courts of this state is to adjudicate cases on their merits. The requirements of standing, as such, particularly where no evidentiary hearing has been had, should not be applied so as to become an obstacle to judicial review. “If rules of procedure work as they should in an honest and fair judicial system, they not only permit, but should as nearly as possible guarantee that bona fide complaints be carried to an adjudication on the merits.” Surowitz v. Hilton Hotels Corporation, 383 U.S. 363, 373, 86 S. Ct. 845, 15 L. Ed. 2d 807, rehearing denied, 384 U.S. 915, 86 S. Ct. 1333, 16 L. Ed. 2d 367.
Lastly, it would appear from the record that there is an ongoing power struggle between the plaintiff and the defendants. It is also true that the courts often become the forum and arbitrator of such struggles. As the parties on both sides possess substantially equal and significant legal rights in the subject matter of this litigation, they are both en*385titled to a full adjudication of their claims before the courts. Because the material facts in this case were vigorously disputed, the granting of the defendants’ motions for summary judgment was improper.
I would find error, set aside the judgment and remand the ease for a trial on the merits.