In this appeal we consider whether the notice procedure employed in a class action conducted in accordance with the Pennsylvania Rules of Civil Procedure was constitutionally sufficient to bind an absent plaintiff class member. We also consider whether the vigorous litigation between an absent plaintiff and the same defendants in a parallel out-of-state action requires the absent plaintiffs’ exclusion from the class of settling plaintiffs after entry of final judgment. We conclude that the notice afforded the Prudential Insurance Company of America (Prudential) satisfied the requirements of due process. We also conclude that the distinguished trial judge acted entirely within his discretion in denying Prudential’s petition for exclusion from the plaintiff class or, in the alternative, a determination that its opt-out notice was timely. Accordingly, we affirm the order denying Prudential’s petition and supplement thereto.
This class action was instituted May 30, 1986, by Peter Kalkus, an owner of Virginia office buildings, on behalf of owners of office buildings having United States Government tenants, against an array of asbestos manufacturers. On April 18, 1990, Prince George Center, Inc. intervened as class representative after Kalkus’s claim was ruled barred by a Virginia statute of repose. On April 16, 1992, the Philadelphia Court of Common Pleas certified the class as follows:
... private owners of buildings (within the District of Columbia and the fifty United States) that were leased or subleased in whole or in part to the Federal Government or any agency, department or unit thereof, on or after May 30,1986, in which*143 buildings, asbestos containing material was or is present.
Memorandum and Order, Kremer, J., dated April 16, 1992; R.R., Vol. I, at 268a. Notice of this order was never required. On May 7, 1993, the court ordered this action to proceed on an opt-out basis, as provided in Pa. R.Civ.P. 1711(a).
By early 1995, twenty-four of the twenty-eight non-bankrupt defendants in this action had executed settlement agreements with plaintiffs’ counsel, contingent upon court approval. Settlement funds totaling $3,782,400 and a cash rebate program had been advanced. To facilitate court approval of these settlements, the court decertified the plaintiff class in February 1995, and certified a settlement class. The court conditionally certified a separate trial class, pursuant to Pa.R.Civ.P. 1710(d), to continue the litigation against the four non-settling defendants. The new classes were defined as:
... a Settlement Class consisting of all private owners of any building or buildings in the United States that were leased or subleased in whole or in part to the federal government or any agency, department or unit thereof at any time between May 30, 1984 and December 22, 1994, inclusive, in which building(s) asbestos or asbestos-containing materials were present.
And:
... a Plaintiff Class for purposes of trial consisting of all private owners of buildings in the United States who, at any time between May 30, 1984 and December 22, 1994, inclusive, (1) leased or subleased their building(s) in whole or in part to the United States or any agency thereof; and, (2) at any time during such period their building(s) contained asbestos or asbestos products; and, (3) the asbestos or asbestos products in their building(s) were manufactured, sold or installed by U.S. Gypsum and/or U.S. Mineral Products Company and/or W.R. Grace & Company and/or As-bestospray Corp., or their building(s) is (are) in a state whose law permits such an owner to establish joint and several liability for conspiracy or concert of action, against not only the maker or seller of asbestos or asbestos products in his/her/its building(s) but also, others who acted in concert or conspiracy with him/her or it to misrepresent or withhold from the public, knowledge of the hazards of asbestos.
Amended Order, Bonavitacola, J., dated February 17, ,1995, at ¶¶ 2, 4, attached as Exhibit G to Affidavit of Prudential’s Counsel in Support of Petition for Declaratory Relief.
In October 1987, Prudential, as an owner of commercial buildings, sued the trial class defendants in the United States District Court for the District of New Jersey. Prudential’s claim was for damages incurred and to be incurred as a result of asbestos in its buildings. By stipulation of the parties, on March 26, 1995, this suit was limited to eighteen Prudential buildings.
In February 1995, the Pennsylvania trial court ordered that notice of the settlements and their terms be sent to the settlement class and scheduled a hearing for objections and approval of the settlements for May 19, 1995. Class members could opt out of the settlement class by filing a written election with the court by April 18,1995. A summary notice of the settlement was published twice in the Wall Street Journal and eight major metropolitan newspapers. A more detailed notice was sent by first class mail to 36,383 potential class members appearing on a list compiled by the General Services Administration and the United States Postal Service which contained the names and addresses of federal agency landlords. Prudential was identified as the owner of seven properties on this list and notices were mailed to each. None of these properties were involved in Prudential’s New Jersey litigation.
On April 28, 1995, Steven A. Lauer, a member of Prudential’s house counsel staff, executed the form to opt out of the settlement class on behalf of Prudential. On May 10, 1995, Robert Gilson, counsel to Prudential, drafted a letter to the Philadelphia Pro-thonotary for Lauer’s signature indicating that Prudential did not want to be a member of any future class in the Prince George Center, Inc. action unless Lauer received notice and filed an affirmative election to participate. This letter was never sent.
If you are already a party to another lawsuit against Grace, U.S. Gypsum, U.S. Mineral and/or Asbestospray not involving personal injury, you must nonetheless file an Exclusion Request; otherwise, you will be bound by the Settlement Agreement and the Final Judgment Order, and your lawsuit will be enjoined.
Notice of Proposed Settlements, Bonavi-tacola, J., dated April 24, 1996, at ¶24, attached as Exhibit L to Affidavit of Prudential’s Counsel in Support of Petition for Declaratory Relief. Seven notices were sent to the same Prudential buildings as the earlier notice, and the Post Office returned two of these as undeliverable.
Prudential did not return an exclusion request, nor did it appear at the July 24 hearing. 289 members of the trial class opted out of the settlement, an important number since Grace and Gypsum had reserved the right to rescind the agreement if 500 exclusion requests were received. The court approved the settlements at the hearing and judgment was entered in favor of the four defendants on August 13,1996. The settlement required $7,740,000 to be paid into the fund established by the twenty-four defendants who had settled previously. The judgment served as a release of the four defendants from any claims that were or could be asserted by the remaining class members and limited those plaintiffs’ recoveries to the settlement fund.
Immediately after the appeal period for this judgment expired, the four trial class defendants informed Prudential’s New Jersey counsel of the August 13 judgment, claiming that it applied to eight of the buildings involved in the New Jersey litigation. On September 30,1996, Prudential petitioned the trial court for a declaration that it was not a class member. This petition was denied on November 27,1996. Prudential petitioned for reconsideration on December 10, 1996. The trial court declined to reconsider this order on December 17, 1996, and this appeal followed.
Prudential raises multiple issues in this appeal. Initially, it argues that the trial court erred in including Prudential as a class member without affording it notice consistent with due process. Prudential also argues that the trial court erred in determining that it was a member of the trial class because it had provided timely and effective notice to the defendants of its intent to opt out of the trial class. Prudential further argues that the trial court abused its discretion in denying equitable relief from the judgment on the facts presented.
Prudential also makes broad attacks on the certification of the trial class and the approval of the settlements reached between the class representative and the trial class defendants. Prudential challenges the adequacy of the settlements and class counsel’s representation of its interests. It also claims the certification of the trial class was improper under the Pennsylvania Rules of Civil Procedure. Finally, Prudential argues that the conduct of the trial class defendants in obtaining the settlements was fraudulent, and that they have taken positions in related litigation which estopped them from opposing Prudential’s petition.
The trial class defendants responded with a motion to quash this appeal except the single issue challenging the trial court’s discretion in refusing to allow Prudential to belatedly exclude itself from the trial class. This Court will only consider those issues properly raised in Prudential’s petition filed September 30, 1996, and disposed of by the trial court’s order of November 27, 1996, to wit: whether the notice afforded Prudential was constitutionally adequate; whether pending litigation altered Prudential’s status as a class member; and whether the trial court abused its discretion in refusing to
Prudential argues that its vigorous devotion of time and resources to the prosecution of the New Jersey litigation during and beyond the time in which it was required to affirmatively seek exclusion from the trial class constituted a de facto withdrawal from that class. Prudential further argues that because counsel for the trial class defendants was the same in both the Pennsylvania and New Jersey actions, the defendants were estopped from asserting that Prudential did not withdraw from the class.
Essentially, Prudential petitioned the trial court to declare that its continued litigation in New Jersey was effective to exclude it from the settlements. Prudential styles this issue one of first impression in Pennsylvania. The nature of the procedure utilized by the trial court for determining class membership undermines this view of the facts.
In Pennsylvania all class members are plaintiffs in the action upon the filing of the complaint. Alessandro v. State Farm Mut. Auto. Ins. Co.,
Prudential was aware of the existence of this action and the proper method for extricating itself from it. Indeed, it utilized the form provided with the notice of the first proposed settlement to decline participation in that settlement. Prudential admits that it received professional advice on this aspect of the litigation and had a letter drafted which would have avoided the possibility of it unwittingly being bound to any future judgment in this case. Prudential cannot now claim that its continued litigation of another decade-old suit against the same defendants, not limited to the claims subject to this action, was intended as a sufficient notification of its desire to exclude itself.
The prevailing federal view is that pending litigation is no substitute for compliance with judicially ordered exclusion procedures. See In re Prudential Securities Litigation,
Accordingly, this Court must merely decide whether the trial court acted within the limits of its discretion when it declined Prudential’s petition in equity to afford it relief from its own failure to avoid a judgment entered against it.
Generally, petitions for relief from judgments are addressed to the sound discretion of the trial court. See, e.g., Sklar v. Harleysville Ins. Co.,
The standards guiding a trial court’s discretion in opening default judgments provide a useful yardstick for assessing the trial court’s order. This Court has emphasized that a balancing of the prejudice to the respective parties is the essence of such an equitable decision. See Provident Credit Corp. v. Young,
We decline to take issue with the trial court’s determination that Prudential offered no reasonable excuse for its failure to timely act. Prudential had notice of the substance of this action in April 1995. It obtained the advice of counsel and was presumably aware of the ramifications of a failure to opt out of the action. It is undisputed that further notice, specifically concerning the instant settlement, was delivered to five separate Prudential properties in May 1995. Prudential has offered no explanation as to how these notices faded to reach any responsible person in its organization as the first notice apparently did, nor does Prudential adequately explain its failure to monitor this litigation after filing its exclusion request relating to the first settlement. Instead, Prudential relies on the failure of its opponents to affirmatively advise it that the clock was running. This Court has refused to recognize a litigant’s obligation to cure an opponent’s unilateral mistake. See id. at 75-76,
Plaintiffs who have previously instituted an independent action are not automatically excluded as potential members of a subsequently filed class action that is upheld by the court, so counsel who file individual actions should consider entering an appearance in the class action in order to secure essential court papers, particularly the Rule 23(c)(2) notice, which contains the option for exclusion.
HERBERT NEWBERG & ÁLBA CONTE, NEWBERG on Class Actions, § 16.13, at 16-73 (3d ed.1992). The trial court’s conclusion that, “[t]o the extent [Prudential] operated in the dark, it pulled the curtain down on itself’, was not an abuse of discretion. Opinion, Bonavitacola, J., dated March 26,1997, at 26.
The federal courts have been confronted with similar belated requests for exelusion
Even upon a finding of excusable neglect, it remains within the district court’s sole discretion whether or not to grant the extension. Factors to be considered in making this decision include: the interests of the movants, the interest of the defendants, and the impact of granting the requested extensions on the Settlement itself.
Id. (citation omitted).
The United States Court for the Southern District of New York has considered two substantially similar cases under the excusable neglect standard. In In re Prudential Securities, Inc., supra, a party seeking a late exclusion argued that Prudential’s failure to inform them of the existence of a class action during the course of parallel litigation es-topped Prudential from seeking a termination of the individual suit upon settlement of the class action. Id. at 369. They further argued that Prudential would not be prejudiced by their late exclusion because Prudential was aware of their intention to continue their individual actions. Id. The court found these arguments to be meritless, observing that pending litigation uniformly does not excuse a class member from filing an exclusion request. Id. at 370. The court then explained the meaning of prejudice in this context, noting that Prudential “bargained for the precise finality that these movants now seek to undermine.” Id.
Similarly, in Langford v. Devitt,
Prudential argues that the trial court violated its due process rights by attempting to bind Prudential to the court’s judgment without providing adequate notice to enable it to exclude itself from the settlement. The United States Supreme Court has explained
[T]o bind an absent plaintiff concerning a claim for money damages or similar relief at law, [a forum state] must provide minimal procedural due process protection. The plaintiff must receive notice plus an opportunity to be heard and participate in the litigation, whether in person or through counsel. The notice must be the best practicable, reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice should describe the action and the plaintiffs’ rights in it. Additionally, we hold that due process requires at a minimum that an absent plaintiff be provided with an opportunity to remove himself from the class by executing and returning an “opt out” or “request for exclusion” form to the court.
Phillips Petroleum Co. v. Shutts, supra, at 811-12,
Prudential contends the notice it received was not the best that could have been accomplished. It identifies three places where notice could have been sent which were better suited to insuring that persons responsible for making decisions concerning Prudential’s numerous properties were actually apprised of the need for action. First, Prudential argues that class counsel should have referred to the exclusion notices received in response to the first round of settlements when compiling the second mailing list, whereby notice would have been sent to Stephen Lauer, Prudential’s in-house counsel at its Newark headquarters. Second, Prudential argues that notice to any particular property of Prudential, which owns real estate throughout the nation, is inadequate. It maintains that significant decisions respecting property should reasonably be expected to be made at corporate headquarters, the address of which is readily obtainable, and that one intending to provide the best notice would certainly have mailed it there. Third, Prudential claims that counsel for the trial class defendants also represented these parties in the New Jersey litigation, and that they assumed a contractual duty, pursuant to the settlement agreements, to ensure that notice for Prudential was sent to its counsel in the New Jersey action.
We first observe that Prudential received actual notice of this class action. Further, under Pennsylvania law, Prudential’s assertion that it has no record of receiving the five settlement notices at separate locations is insufficient to overcome the presumption that these notices were, in fact, delivered. See Kulick v. Com., Dept. of Transportation,
Initially, we note that Prudential completely misstates the burdens imposed on class counsel and the trial court in effecting notice of a class action settlement. Prudential cites to Geier v. Tax Claim Bureau of Schuylkill County,
Prudential argues that notice should have been sent to the addresses listed on the few hundred exclusion forms received by the court in the first round of settlements. These exclusion notices were received in response to the notice sent to everyone the federal government identified as a landlord of a federal agency in the years in question, presumably the best way of identifying this class. We think it eminently practical for the court and class counsel to have assumed that the previous notice was effective to reach at least those parties that had actually responded. If any person or entity requesting exclusion disagreed, they properly could be expected to enter an appearance or otherwise alert the court as to their preferred address. In giving notice of the second settlement, the court and class counsel justifiably focused their efforts on reaching those persons and entities whose addresses were not included in the first round. Tó this end, publication notice was expanded to include five trade publications and an internet site. We find that the widespread publication of notice utilized by class counsel was a constitutionally sufficient means of reaching parties who were not adequately identified through the government’s list. Mullane, supra.
Prudential’s contention that notice should have been mailed to its Newark headquarters because it was easily identifiable warrants little discussion. It is the antithesis of practicability to require that class counsel attempt to identify the actual location of the 36,000 individual and corporate lessors identified from the properties on the federal government list.
Prudential’s third contention, that counsel for the trial class defendants deprived it of due process by failing to satisfy an alleged contractual duty to alert class counsel to the identity of Prudential’s New Jersey counsel, is meritless. The “plaintiff, not defendant, in a plaintiff-class action is responsible for providing notice to the members of the defined class.” Langford v. Devitt, supra, at 45 n. 1, citing J. Moore & J. Kennedy, 3B Moore’s Federal Practice ¶ 23.55, at 23-423 to 23-424 (2d ed.1987). Pa.R.Civ.P. 1712(c) explicitly charges the plaintiff with the sole obligation of preparing class notice unless otherwise directed by the court. Defendants’ alleged contractual duty does not alter the minimal notice requirements under the Due Process Clause. Therefore, we conclude that Prudential received constitutionally adequate notice in this case.
Order AFFIRMED.