*1 CAMBANIS, A. Julia Administratrix the Estate of Louis Deceased,

Cambanis, Appellant, COMPANY, Corporation. NATIONWIDE INSURANCE Superior Pennsylvania. Court of

Argued March 1985.

Filed Oct.

Reargument Denied Dec. *3 Zoffer,

Joseph M. for Pittsburgh, appellant. Dornish,

Bradley Pittsburgh, appellee. BROSKY, LEDERER, Before: WIEAND JJ.* BROSKY, Judge:

This is from an class certification. appeal denying order alia, inter conclude, in holding We that the trial court erred is precedent establishing inconsistent with class status. we reverse and remand for the Accordingly, as a class action. proceed case History

Facts and Procedural Cambanis, A. administratrix of the Appellant, Julia Cambanis, her deceased estate of Louis husband. operated by an was struck motor vehicle decedent As Company, appellee. Insurance insured Nationwide result, later. At the time of Louis Cambanis died two days old, receiving he retired and Social years his death was 85 covered, at The accident least Security benefits. was Pennsylvania’s No-Fault Motor part, by provisions Act, July Insurance Act of P.L. No. Vehicle seq.1 et paid 40 P.S. 1009.101 Nationwide has surviv- § loss, expense appellant. benefits to or’s funeral and medical loss bene- a claim for No-Fault work Appellant submitted 202(b); liabili- fits, 1009.201, appellee denied P.S. §§ complaint then filed a Appellant for such ty benefits. of the estate of her deceased appellee on behalf against others who and as of the class all representative husband loss similarly denied No-Fault work wrongfully had been A on of class certification hearing propriety benefits. held, opinion denying and order following which was *4 entered.2 class certification were * Lederer, Judge, Senior of the Court Common William J. Honorable sitting designation. Pennsylvania, Philadelphia County, is Pleas of 1009.205(c). 1. § 40 P.S. "requires to file Pennsylvania the court Rule of Civil Procedure 1710 accompanying an re- opinion an of certification or order order deci- fusing certify____ opinion set forth the basis for The must fact, sion, appropriate including findings of law and conclusions 1702, specified in 1708 and 1709” the matters Rules discussion of See prerequisites and criteria for certification. set forth which

45 Appealability Scope Review An denying order class certification is final and appealable order. Bell v. Consumer Discount Beneficial Co., v. Janicik Pruden (1975); 465 Pa. 348 A.2d 734 tial America, Insurance Co. 305 451 Pa.Super. A.2d (1982). trial concerning The court’s decision class certi fication is a mixed law and finding of fact entitled to Bell, “appropriate deference” on appeal. supra, 465 Pa. at 235, 348 A.2d at 739.

Burden of Proof The proof burden in class proceed certification Time, ing is on the party seeking certification. Klemow v. Inc., v. United States (1976); 466 Pa. 352 A.2d 12 Haft Corp., Steel Pa.Super. 109, (1982). Once allegations class action pleaded, are well class propo nent must present evidence of the underlying facts from can which conclude that the class certification requirements However, met.3 criteria are proponent prove need not separate facts each supporting rather, requirement; proponent’s burden to suffi ciently establish those underlying facts from which the Janicik, court can make conclusions. necessary 129-30, Pa.Super at A.2d at 455. This initial is not heavy burden is thus consistent the policy with that “decisions in favor of maintaining a class action should made.” Bell v. Consumer Discount liberally Beneficial 192, 205, 241 Pa.Super. (1976) (after A.2d remand) (class suits enable many the assertion of meritori might ous claims that not litigated). otherwise be Accord Hirschi, supra. Esplin (10th F.2d 94 Cir.1968) (“in a doubtful any case ... error should be action.”)4 committed in allowing favor Explanatory requirements Note Pa.R.C.P. 1710. of Rule 1710 meaningful appellate facilitate more review. 3. Pa.R.Civ.P. 1701. Pennsylvania’s attempt revised class action rules are an to blend the governing best features of both Federal Rule 23 class actions and the provisions Uniform Act Class Action with some novel not found in

46 Janicik,

In the rationale for the explained this Court low of proof. burden at the class certification stage proceedings which

[T]he trial is determined and the court’s extensive initially to be actions the need powers over class obviate supervisory A proof. for a strict burden of not make the close of class action determination until after initial proponent that pleadings to ensure capable surviving a non-frivolous claim presenting 1707____ Through- Pa.R.Civ.P. preliminary objections. action, extensive powers out the class the court has and to ensure efficient conduct protect absent members See, (subclasses and e.g., Pa.R.Civ.P. 1710 the action. (conduct actions); issues); (approv- limiting fees)---- settlements); counsel The (approving ing alter, if or revoke the certification modify, court may litigation in the reveal some later developments not certification is satisfied. Pa.R.Civ.P. prerequisite 1710, 1711.... A.2d 455. Pa.Super. at at supra, 305 omitted).

(Citations Opinion

Trial Court for prerequisites all certification opinion states that not find that a class The trial court did one were met. but adjudica- efficient method of be a “fair and action would in Pa.R. tion,” enumerated prerequisites the last of five 1702(5).5 Civ.P. preceding 1701. Where Explanatory Pa.R.Civ.P. See Note either. upon or taken verba- Pennsylvania’s rules are fashioned class action particularly case law is Rule then federal Federal tim from the Klemow, McMonagle binding. supra; v. Allstate instructive but not (1975) dissenting); (Spaeth, J. Pa. 331 A.2d

Insurance Bell, n. n. 465 Pa. and efficient deciding would a "fair a class action In whether adjudication” court considered the criteria the trial method of 1708(a); set forth in Pa.R.Civ.P. a determination as such method is a fair and efficient determining whether class action among controversy, adjudicating court shall consider (c). (a), (b) and set forth in subdivisions the criteria other matters As the it, trial court part saw on appellee *6 foregone conclusion. was This from its interpre- followed of tation the 1983 Pennsylvania Court Supreme decision in v. Donegal Freeze Mutual Insurance 504 Pa. (1983). Freeze According

A.2d to the trial court pro- nounced on part the of the insurance company to work loss to pay benefits estates appellant’s. such as court trial then in concluded that issue this case is “[t]he not one of This liability.” was seen to reduce the issues in one, case the to damages. such, As the believed case was not appropriate for class action treatment since it required separate hearings each member of the class. Freeze,

Consistent with trial interpretation court’s there were that findings there was no risk of varying adjudications due to the mechanical and routine processing of work loss as Act; benefits set forth in the No-Fault presented Nationwide would incompatible not be with stan- conduct; dards class members’ interests would not ( n ) monetary recovery sought, Where alone is the court shall consider (1) predominate whether common of law or fact over members; any question only affecting individual (2) likely the size of the class and the to be difficulties encoun- action; management tered in the of the action as a class (3) prosecution separate by against whether the actions or individual members the class would a risk of create (i) varying adjudications respect inconsistent or with to individu- party al opposing members of the which would confront conduct; incompatible the class with standards of (ii) adjudications respect with members of individual practical dispositive which would as a matter be of the interests of parties adjudications substantially other members not to the or interests; impair impede ability protect or their their (4) any litigation already by the extent and nature commenced issues; against involving any or members of the class of the same (5) particular litigation appropriate whether the forum is for the class; of the claims of the entire ( n ) complexities whether in of the of the view issues or the expenses separate litigation the claims of individual class mem- actions; support separate bers are amount to insufficient in (7) likely whether it is that the amount which be recovered by will in relation to the individual class members be so small expense administering justify as not to effort of action class action. or impeded foreclosed individual work loss determina-

tions.6 an inconvenience in perceived requir-

The trial also from ing litigate estates across the Commonwealth to their forum inconven- Allegheny County making claims — and inappropriate. ient

Analysis was, of liability The trial court held that the issue against decided At by precedent, appellee. governed held, time the trial court so this was not an accurate statement; yet for that issue had to be decided.7 was liable to concluding appellee appellant, *7 v. Donegal Freeze holding in on the trial court relied Co., Mutual Insurance (1983)— Pa. 470 A.2d 958 accident, of motor of a minor vehicle estate victim Act, No-Fault entitled to by covered the was otherwise to the Act. The trial pursuant loss recover work benefits that Freeze settled all issues concluding in court erred damages. only this and left the issue liability in case Freeze did not, First, decided, for yet whether it was to be person a retired Security payments loss of the Social No-Fault work loss item in the calcula- compensable awas Matza in recent decision remained for our tion. It Co., Allstate Insurance Pa.Super. 491 A.2d Security pension Social (1985) hold that a decedent’s the retiree had “probable income” which are benefits and, receiving accordingly, expectation reasonable death, if a result his in such as payments reduction No-Fault, as compensable by properly covered otherwise loss. work 1710(b), in court described the class trial Pursuant to Pa.R.Civ.P. successful, would, represent of all Appellant opinion. if its receiving Social death were unemployed who the time of retirees narrowing proper Security of the class for We concur in the benefits. and issues. on common characteristics representation based below, ap- correctly if the trial had be noted even As will law, action was it not follow that a class praised of the would the state improper.

Second, if, law, even as a matter of some people have a right compensation, established, would still have to be matter, as a factual that appellant is within that category. The case of Minear v. State Farm Mutual Automobile Co., Insurance 309 Pa.Super (1983) 454 A.2d 1078 (holding that an estate of a person retired is entitled to and, claim No-Fault work loss proper benefits with proof, benefits), Matza, collect such supra, (holding that loss of Social Security pension benefits are to be in included calculating No-Fault), work loss benefits under set merely appellate precedent which should be by followed this Com- monwealth’s trial courts. precedent This does not “estab- lish” any particular case. This precedent is only part of the applied law which must be to the facts as found. short, gives appellant right Matza8 to get into the ring; Matza alone does not deliver a knock-out punch. denied,

When appellant’s here, claim is then she and all others similarly right situated have a to commence an action Fox v. State Farm Mutual compel payment. Automobile Insurance 322 Pa.Super. Matza,

(1983). potential Under for liability is now clear. potential Whether that will be realized must be determined by application court’s of the to the law facts as estab is, therefore, lished. The issue of liability both unresolved and a common one shared the class.

[*] ^[*] '‘f H: *8 ‡ sjs enough It is not that there are issues common to the class in order for class action treatment to appropriate; be those 1708(a)(1). common issues must predominate. Pa.R.Civ.P. common, predominant judice sub The issue propriety of appellee’s practice denying No-Fault work loss bene- fits to estates of persons retired who have lost Social Nye v. Erie due to the accident. Security payments Insurance Exchange, Pa.Super. 453 A.2d 677 (1982), of commonality: this Court considered a similar issue pay policy, where an insurer refused to under its No-Fault Matza, supra, It is not here. which is relevant Freeze for appropriate we held that class action treatment was an such issue. suit, Nye permitted

If is not this all the class to maintain members will be forced to file suits to vindicate individual of a into rights. their To thrust numerous members separate actions of judicial would be intolerable waste expedi- of all be plaintiffs may resources when the claims a settled in one suit. Class actions can be fair tiously resolving subject and to disputes efficient method of expensive hazards parties system litigation in this context would eviscerate separate de- “procedural of the class action device purpose handling in the signed promote efficiency fairness similar numbers of claims.” large Nye, A.2d 678.9 Pa.Superior Ct. at Farm Mutual Insurance

In Allessandro State (1978), many case in Pa.Super. bar, also held that a class to the one at we respects similar based on proper. cause action was action was the insurer payments reduction of uninsured motorist’s no coverage. We can discern payments under the medical Nye case from ground distinguishing for the instant valid or Allessandro.

# >!< ^[*] >H ^[*] # separate denied certification because The trial court also would, in the effi- hearings damages opinion, its defeat on loss estab- “Since the has ciency of the class action. case, require hearings it separate would lished in each of the class.” each member separate in its that perception correct

The trial court was however, erred, required; will damage determinations bars a class action. this circumstance concluding that as to the amount It is well-established ABC preclude do a class action. damages not individual Cleaning, (1981); 219, 438 A.2d Pa.Super. Sewer Pennsylvania, 467 Pa. See Lillian v. Commonwealth also Klemow, supra. (1976); McMonagle, supra; A.2d 250

51 Ross v. Shawmut Development Corp., 460 Pa. 333 (1975); Janicik, A.2d 751 1 supra; Newburg on Class 1155(a) (c). so, Actions and If this not were would § rare, indeed, that a class action ever would be certified. (How often would members ever suffer identical dam- ages?)10

Pennsylvania Rules of 1710, 1713 Civil Procedure and grant 1714 the court extensive powers manage action. These include the ability to limit the class action as issues,11 subclasses,12 divide the class approve into settle 13 ments and conduct of the action.14 In Janicik monitor this Court stated that: “The court rely should on the and ingenuity aid of counsel upon its plenary authority to control the action solve management whatever prob lems litigation bring.” supra, 305 Pa.Super. 451 A.2d at 462. The determination of damages is appropriate area these powers. exercise of A trial limited to the liability issue of is an efficient appellee’s method of deciding liability, generally, to the estates of Security recipients claiming Social No-Fault work loss benefits.15 If issue is decided in liability favor of course, Of even if damages hap- the amount of each individual’s pened identical, they might require separate to be well evidence of their existence. 11. Pa.R.Civ.P. 1710(c)(1).

12. Pa.R.Civ.P. 1710(c)(2).

13. Pa.R.Civ.P. 1714(a).

14. Pa.R.Civ.P. 1713(a). liability separated issue of can be from of individual damage deciding predominate when if or common issues of law fact questions. Co., City Philadelphia over v. individual American Oil (D.C.N.J.1971); Thornhill, Inc., Wyllie F.R.D. Frankel v. (D.C.W.D.Va.1972). Kronenberg Clinton, F.R.D. 330 See also v. Hotel Inc., (S.D.N.Y.1966); Jacquelin, 41 F.R.D. 42 Eiser v. Carlisle and (2nd Cir.1968); City Corp., F.2d 555 New York v. General Motors (S.D.N.Y.1973); Trading F.R.D. Corp. American and Production Inc., Moore, (N.D.Ill.1969). Fishback and 47 F.R.D. 155 For a discussion the use trial on bifurcated (D.Vt. damages Paper see Ouilette v. International 86 F.R.D. 476 1980); (E.D.La.1976); Plywood Litigation, In re Antitrust 76 F.R.D. Assn., Savings

Sommers v. Lincoln Abraham and Loan F.R.D. 581 *10 estates, of individual then the of the amounts question damages will be considered. a mathe damages determined may

Where be considered a may and be matical or formula calculation task, proper. then a class action be Wind- mechanical to determine how it the trial court ham, supra. leave to We handled, ob not without issue should but damage of in the business industry is that the insurance serving handles routinely and utilizing actuarial tables creating and damages of due The amount loss claims. No-Fault work calcula straight-forward appear each estate would is, therefore, damage issue tion once is shown. class action treatment.16 suitable for

[*] ^[*] # ^[*] ^[*] # concentrat concerned about also The trial was of Common Allegheny County Court in the ing litigation the Com located across forcing estates thereby and Pleas their prove Allegheny County come to monwealth to indeed, incon seem may, The forum damages.17 individual consideration, conclude that we venient, but, upon careful is not. Litigation, 70 F.R.D. 23 Key (E.D.Pa.1975); Antitrust In re Master dismissed, (2nd Cir.1975); American (D.Conn.1975), appeal 528 F.2d also, Wright A. C. supra. See 7A Corp., Trading and Production 1783, 1790; Newberg on Miller, §§ and Procedure Practice Federal 16; Study: Federal and of Course n. ALI-ABA Actions § Class Developments 220- Litigation Action Class State and State —Recent Past, Miller, Present 4,231-49; Class Actions: of Federal An Overview 2nd ed. (1977); Practice Moore’s Federal 3B at 56 and Future (1969); Continuing Committee: 23.45[3], Work the Civil n. 35 ¶ of (I), 81 Harv.L.Rev. Civil Procedure Rules the Federal

Amendments Damages in Rule Liability (1960-1); Bifurcation Solution, Problems, Policy, and a 23(b)(3) History, Actions: Class Legalized (1982); Legalized Blackmail S.W.L.J. 743 Theft: Of Dilemma, 47 Substance —Procedure and the Actions Consumer Class Proce (1974); Reforming Class Action Federal 861-3 S.Cal.L.Rev. Proposal, Harv.J.L. Department Analysis Justice An dure: 16. Pa.R.Civ.P. 1708(a)(5). 1708(a)(5). Pa.R.Civ.P.

Proof of damages would consist of a primarily showing documents and not extended from testimony numerous sources.18 The trial court may also consider the use of 1006, allowing Pa.R.Civ.P. change of venue for damage determinations should a party so move.19

The trial court also supported its denial of certification on ground that there was no risk of inconsistent adjudica- tion in light decision, the Freeze supra, and that there was no risk of other class being impeded members’ interests or foreclosed. this Court said that: *11 Finding such risks is not essential to certifying class, exist, ‘if but they they will be forceful arguments in support of the approval the class action.’ The court below held that the principle of stare and proper decisis application of fundamental principles contract would elim- inate any risks of adjudications. inconsistent Such rea- soning ignores the rule’s exhortation to address this practical consideration “as a matter.” Courts may, and do, often in differ resolving similar presenting issues law or fact. The precedential effect of a deci- sion, incorrect, if even may chilling have a effect on the claims, and, assertion of similar expir- combined with the ing limitation, of statutes of often may “substantially or impair impede” potential litigants’ ability protect to Moreover, their interests. with related criteria concerning the complexity expenses and of litigation, 1708(a)(6), Pa.R.Civ.P. the court may parties’ consider the respective circumstances and ability pursue separate that, established, again damage 18. We note if is calculations likely should be routine and a matter for out court settlement. concept considering desirability concentrating 19. litigation particular in a forum was borrowed from the federal statute. 1, 1160(d), Newburg, supra, at Vol. § states that such a concentration first, aspects: promotes judicial economy by has two that it concen- court; and, second, trating claims in front of one venue considera- tion—whether the forum selected is the best forum to hear the claim. ability system, With the factor should no to transfer actions within the federal this longer have much force. In the case at bar there is action, no one Common Pleas Court which would be better to hear the liability may and a limited trial on obviate the concern for the forum’s convenience. conducts statewide and Appellee may actions. business inconsistent standards of conduct. thus subject members, those smaller especially with Many claims, protecting to afford the costs of may be unable All claims through separate interest actions. arise their identical contract virtually from lan- interpretation adjudica- so that a small risk of inconsistent guage, even action, compared The class when unnecessary. tions criterion, speedier affords the actions under this separate more statewide determination of the comprehensive claim, thus, recovery means to ensure if the better appellee repeti- or to proves spare the claim meritorious if not. litigation it does piecemeal tive 143-44, 451 A.2d at 462- Janicik, Pa.Super. omitted.) (citations footnote we conclude For the reasons set forth where adjudications there are risks of inconsistent seemingly identical trial courts faced with may several chilling one case have a and the resolution of cases avoided here a class effect on others. Such risks can be Accord, supra. Haft, action.20

Conclusion *12 of law or that common summary, we hold questions; there any individual predominate fact over management problems; separate no size or seems be incompati- adjudications inconsistent yield actions could is appropriate. and the forum appellee; ble standards in this case that a class action these reasons we hold For Ac- adjudication. efficient method of a fair and would be disagreed with the rationale Federal courts have 20. We note that Film Inc. v. Paramount expressed In Goldman Theatres in Janicik. 35, (E.D.Pa.1969) that ‘‘[t]he a federal court stated Corp., 49 F.R.D. right action to a class not intend to create of Rule 23 ... did drafters might precedent cited as ... opinion in one suit simply because an rule, every action would then almost If this were the in another. v. also Richardson being brought a class action." See susceptible of 413, (E.D.Pa.1974); Lan- Corp., 62 F.R.D. Hamilton International 992, (S.D.N.Y.1973); Alsup Manhattan, F.Supp. v. Chase dau (N.D.Cal.1972). Montgomery F.R.D. Ward and v. reverse, cordingly, we certify the class and remand for the go case to forward as a class action consistent with this opinion.

WIEAND, J., files a dissenting statement.

WIEAND, Judge, dissenting:

I I respectfully dissent. would affirm for the reasons set opinion

forth of the trial court. TUCKER, Jacqueline Tucker, Louis and and Christine H/W by Guardians, Jacqueline Her Parents and Louis and

Tucker, Appellants,

v. TRAVEL, Apple WHITAKER LTD. and Tours and the Ambassa- Happy dor Beach Hotel and Trails Stables and the Hotel Corporation of the Bahamas the Ambassador Beach T/A Hotel. TUCKER, Jacqueline Tucker,

Louis and and Christine H/W Guardians, Jacqueline Her Parents and Louis and Tucker, Appellants, TRAVEL, Apple Happy WHITAKER LTD. and Tours and Corporation Trails Stables and the Hotel of the Bahamas the Ambassador Beach Hotel. T/A

Superior Pennsylvania. Court of

Argued April 1985.

Filed Oct.

Reargument Denied Dec.