*1 and Sheilah Frederic WEINBERG Behalf of Themselves
Guarino on Situated, Similarly Appel-
All Others
lants,
v. COMPANY, INC.
SUN (R Company, Inc.
Sun M),1 Appellee.
& Himself
Marc R. on Behalf of Gordon Similarly
and All Others
Situated, Appellant, Company, Inc., Company, Sun (R
Inc., M), Appellee. & Pennsylvania.
Superior Court of March 1999.
Argued Sept.
Filed Nov.
Reargument Denied
typographical
(R
Sun noted and corrected
Marketing Company &
Refining
1. Sun
Answer,
caption has not
M)
error in its
but
proper
intend-
appears
defendant
to be
Co.,
has taken
This court
been corrected.
H53 *3 O’Neill, ap- for Philadelphia, Debora A. pellants. Philadelphia, appel- for Baughman,
John lee. MeEWEN, Judge, President
Before POPOVICH, CIRILLO, President J., and Emeritus. Judge CIRILLO, Judge Emeritus: President denial of 1 Before us is the trial court’s under certification a motion a class Pennsylvania Rule of Civil Procedure predicated upon The action underlying Trade Practices and Pennsylvania’s Unfair (UTPCPL), 73 Law Consumer Protection gasoline §§ Appellants highest P.S. 201-1-201-9.3.2 octane available proposed higher gasoline general public. a class of consumers Whether octane purchased who 93.5 or Sunoco Ultra® 94 provides advantages Sun claims is such (“Ultra®”) gasoline octane between the Sun entirely different matter. has con- time, years During and 1992. ceded, involving previous in a case similar appellee, Pennsylvania the corporate cor ads, high octane does not its poration Company once known as Oil provide preven- aside from knock benefits (hereinafter “Sunoco”), “Sun” or broadcast tion in knock at lower octane. ears that approximately seventeen states3 $14 It in this presented has also evidence case million dollars’ worth of and ra television airing competitors that its ads with dio advertisements Ultra®. FTC essentially message during the same has directly found that these ads claimed proposed period. *4 by implication and pro Ultra® would ¶ dispute 3 This has an extensive histo- acceleration, engine power, vide more and Sun, ry. company It is not the first time performance advantages in automobile en area, Philadelphia has based broad- gines prevention. Appel than mere knock cast such ads. Sun has for decades made lants claim the ad campaign deceived con a point offering highest gaso- octane sumers into thinking they gain would general public, line available sale to the using benefit gaso from 93.5 or 94 octane long attempted through and it adver- has line opposed gasoline, as to a octane lower tising to that there are convince consumers truth, while in all percentage but a small widespread advantages purchasing to advantage consumers derive no at highest gasoline possible. octane all. also claim They the ads increased both price ¶ consumer demand for and the 4 This is also the first time at- They compensatory puni Ultra. seek and tempts been restrain have made to Sun damages, equitable tive as well as re from making claims identical those at lief of corrective consumer disclosures. hand. Federal The Trade Commission Judge Stephen E. Levin of the Philadel (FTC) attempted stop Sunoco from has phia County Court of Common Pleas de pro- octane making high its claims nied opin class certification and issued an power vides since 1974. more least twice ion required as Rule of Civil Procedure Co., In In the See re Sun supra; note 1 part, 1710. affirm in in part, We reverse al., et Company, Matter Oil 84 and remand. (1974). in- attempt F.T.C. Its 1992 247
¶2 very volved the same ads as those before subject repre- advertisements Additionally, appellants one of has sented, us. part, gasoline “No other can attempted take action Sun for against give your car better acceleration because ads, octane,” claiming standing these under no same gasoline other has 94 and invit- ed the Lanham Act4 our federal courts and “[c]ome consumers to Sunoco and fill Act, power on that up producing a landmark case Ultra® 94—for maximum performance.” added.) and then class certifi- (Emphasis gaining, losing, also Jersey.5 party disputes Neither that Ultra® cation in the state of New We is the case, disposition brought legal 2. also other but Claims were under is irrelevant to theories, we note it. but these are us. not before 1125(a). § 4. 15 U.S.C. 3. Sun manufactured and its Ultra® marketed plus 23 states District of Co- Co., (D.N.J.1993), F.Supp. 819 405 Guarino v. Sun lumbia, expert its but testified that the ads did v. nom. Ziebart Int’l sub Serbin af f'd Cir.1993); not air in D.C. nor in 6 of the other states. (3d Corp., Camden 11 F.3d Appellants that the occurred opinion state broadcasts County (unpublished L 00192-94 No. 21, 1995, testimony per in 13 states D.C. Other Honorable dated March Barry Weinberg Superior Court of the reviewed indicates number states Jersey, County). aired This Camden where the ads was 15. confusion State of New (foot- 461-62, Id. at at 817-18 prior proceedings these instructive find omitted).7 Therefore, them. ignore and will not and citations *5 Schechter: Trade Practices Unfair pub- general for sale to the th line available (West 1992) Consumer 5 Ed. Protection lic, variety with a a leaded Research Oc- at 727-30. The is also based UTPCPL “Sunoco The tane of 102.8 called 260.” supra. 4 upon the Lanham Act. See Note superior feats purportedly showed ads In is what still landmark an strength including automobile engine UTPCPL, case on the Commonwealth (two train cars boxcars a pulling three Inc., Pa. Properties, Monumental 459 caboose) pulling and an automobile an (1974), supreme our up ramp construct- empty U-haul trader a stated: a in the Los Ange- ed over bank of seats Law has regu- The Consumer Protection represented di- Coliseum. Sun’s ads les larly interpreted by been the Common- that rectly by implication “Sunoco being on the Fed-
wealth Court as based power provided more than engine 260” Act and the eral Trade Commission gasoline using and that lower octane Su- Indeed, in Trademark all Lanham Act. special “blending” pump would al- noco’s aspects language relevant of section enjoy engine power to consumers such low Protection Law and Consumer they if a small benefits even blended FTC Act is identical. section 5 of the a greater of “260” amount of amount with similarity The Lanham Act’s Con- found gasoline. octane FTC lower strong. Protection Law is likewise sumer higher ads octane both that the associated agree the Commonwealth We thus with “ power perfor- greater engine to the deci- that Sve look Court awas fal- and that this association guidance Acts for and mance sions under those ” sehood. interpretation.’ specifically practices defined and etseq. §41 6. 15 U.S.C. necessary prohibited, it would be once Properties court took 7. The note Monumental Congress begin again. over If were to Act’sbreadth: FTC definition, adopt it would method Report The House Conference that accom- undertake an endless task. original passage of FTC Act panied the 463, 329 A.2d at Properties at Monumental states: 818, quoting H.R.Conf.Rep.No.1142, 63d impossible to frame definitions It is Cong., 2d Sess. 19 practices. all unfair which embrace There is no limit to human inventiveness 8. See discussion infra. field. Even if all known unfair among adult against showing The 1974 FTC decision Sun use of “research a advertising agen- and its York-based men octane is considered be measure New cy quality, highest which a later was that Sunoco has the led to consent decree market, gasoline Judge written octane on the that some Administrative Law (ALJ) Harry adopted highest R. Hinkes associate octane and was users Sunoco’s power many on behalf of FTC. It with more and that users issued about following findings ignorant included the of fact were confused or the con- admissions, cept finding based on octane.” Id. at FF 69. No stipulations and/or indicated, however, directly which caused relevant and what these essential understanding present dispute: widespread misperceptions and erroneous prior men among adult associations Octane, which is differ- measurable ads, subject which had aired between 1969 ways, ent measure motor fuel is and 1972. quality, regardless anti-knock
method of measurement. The anti- ¶ During proceeding, the 1974 knock is quality many one of measurable octane using higher gaso- conceded properties gasoline. aof engine is needed line than to control knock
An rating octane number or octane provides superior performance no engine gasoline is measure of the anti-knock at FF advantage. or other Id. quality ability of a or its ¶ The decep- FTC found the Sun ads during resist knock combustion an tive, power stating “[t]he element of engine and an octane number or octane rating attribute of the octane rating of a gasoline can be measured in except prevented.” insofar as knock ways. different added). (emphasis Id. at Comment It con- Knock, as it is sometimes called “Respondents have engaged cluded detonation, *6 ping or uncontrolled competition in in unfair methods of com- rapid excessively reaction a or portion and unfair merce have committed and de- all of the air-fuel mixture in the combus- in ceptive practices acts and commerce in engine. chamber violation of Section 5 of the Federal Trade Knock can also result in a loss of Commission Act.” Id. at Conclusions of engine power. Law. The function sole of octane is to ¶ In fashioning remedy, a the FTC possible control knock. Knock and the showing that considered studies consum- power resultant prevented loss can be ers’ misinformed beliefs about the correla- by gasoline using any that has sufficient power tion between octane and had contin- octane quality. anti-knock of a Use ued after the ads had discontinued in been gasoline quality an with anti-knock 1972. This indicated to the FTC that Su- exceeding requirements par- aof prior deception had noco’s continued to non[-]advantageous engine ticular overspend cause consumers to unnecessar- preventing as far as knock is con- However, ily recog- on the FTC gasoline. cerned. percentage nized that consumers (refer- (FF) 54,
Id. at of fact findings rapidly with such beliefs had in declined pleadings quotation ences to and marks to unique changes 1974 due and radical in omitted) added). (emphasis by redesigned, market gasoline caused ¶8 environmentally engines requiring The FTC’s decision also found as cleaner (lower octane) fuels, fact that advertising agency Sun’s made the use of unleaded9 component gaso- companies' exploitation 9. Lead is not a normal case to oil line, despite anti-pollution the existence of advertis- mood of time with their another ing gasolines. campaign implying campaigns that era that oil for "lead-free” Lead mid-1970's, was, companies expending gaso- prior effort to added to extra "get expert specifically had the effect lead out." Sun’s referred in lines because it added). Order, day, (emphasis E No emphasis crisis” of the Id. “oil marketing efficiency, in on cars’ stat- fuel built into the order should Sun penalty was ing: it, violate and corrective adver- choose to
Finally, tising unnecessary. one cannot overlook was deemed change affecting the conditions later, Twenty years the FTC took marketing gasoline since Jan. 1972. against repeating action Sunoco limit- supply gasoline The has become agreed not to make. claims it had earlier price very ed and its has risen notice- press a In late FTC issued state- engines at retail. ably Automobile Inc., Company, announcing ment that Sun practically all models changed been subsidiary, Refining and its Sun Mar- now use lower octane fuel. (R M) keting Company, agreed had & had charges again FTC that Sun settle now highest gasolines, claimed its octane event, any change In in mar- 94, provided superi- called 93.5 and Ultra® keting gasoline, conditions the sale performance ads.10 engine power or likely power high oc- it.is support had no basis to Sunoco reasonable ratings in the tane will be advertised then-proposed con- these assertions. Nevertheless, near future. should the gasoline enjoining sent order was described as Sun change situation sometime future, many will, hope re- in the future making from such claims spondents prohibited from should unless it had reasonable scientific basis resurrecting deceptive their claims of to substantiate them.11 power Therefore, gasoline. for their order was 18 The 1992 settlement necessary. cease and order is desist at In re adopted by reported the FTC and added.) order, (Emphasis Id. The FTC’s Co., strongly supra, together with Sun decree, agreed as a consent worded dissent FTC Commissioner advertising its mandated Sun and Owen, K. would have chosen Deborah who from, agency among cease and desist other greater penalty given the earlier FTC any manner, “Misrepresenting, things, action Sun. The FTC settle- against performance characteristics of Su- any gasoline.” order, counterpart, did noco ment like its 1974 other *7 engine gasoline regular oc- raising controlling thus most cars is octane and mended for cases, fact, using knock. a tane .... in most [i]n gasoline your higher owner’s octane than publication enti- 10. This followed article absolutely manual recommends offers no ben- your tled Car?” in Con- "Which Gasoline efit”); Money Pump, Saving at the FTC Briefs: 1990, which, January Reports, sumer accord- (at September http:// www.ftc.gov/ 1997 ing testimony, originally prompted the to octanbrf.htm); bcp/conline/pubs/briefs/ FTC present action. Consumers, May ("Many ex- Facts 1996 high a perts believe cars don't need most that, cooper- press 11. The release indicated properly and effi- gasoline perform octane to with the American Automobile Associa- ation ciently”); Autogram, September/October AAA (AAA), had a the FTC issued brochure ("Vehicles not that run well—do knock purchase advising to the lowest consumers regular ping grade gasoline will not or —on gasoline their use with- octane that cars could higher grade using a of fuel. benefit from purchase any higher knocking, out vehicles, premium will in- For fuel those gasoline octane than that was wasteful Release, ”); power.... AAANews Oc- crease Consumers, unnecessary. Bureau of Facts for (“premium gas nearing sales are tober 1995 Protection, FTC, July Both Consumer percent gas ... than of total sold but less periodi- and the AAAhave continued FTC actually premium’s percent of cars need cally re-issuing similar brochures. Gasoline, Contrary popular opin- higher ion, to octane.... High See Low-Down on Octane provide pow- (at premium gas more http:H does not September www.ftc.gov/bcp/ octane.htm) ("the improve performance”). 'pep,' er or doesn’t conline/pubs/autos/ recom- any penalty not contain He standing). grant- should choose consumer therefore it. to violate judgment, ed motion for summary Sun’s stating: adjudicato- 14 The FTC is not the only ry body which has had it one before accept plaintiffs argument To would be present litigants present and the ads. One regu- the Lanham Act from a convert appellants action, present lation commercial and unfair interests Guarino, previously pursued Sheilah essen- competition pro- to a catchall consumer Sunoco, tially against this same claim al- could apparently tection statute that be Act, under beit the Lanham in our federal any mislead- challenge allegedly used to Co., system. Guarino v. Sun note 5 ing advertising. expan- such an While supra.12 coverage sion of Act’s be desir- able, court, Congress, that is for not this ¶ 15 Guarino’s federal claim raised the to decide. following issue: 48(a) § Act, [W]hether the Lanham Id. 1125(a) (1988), § 15 U.S.C. grants stand- Judge af Irenas’ decision was purchaser to a ing retail of consumer decisively panel by firmed of the Third goods, this instance from the Circuit. Corp., Serbin v. Ziebart Int’l pump, engages from a seller who supra. note That court consolidated misrepresentation or advertising false Appellant with pur Guarino’s case that of respect the quality or character- bought who chasers of automobiles had goods. istics such car protection seeing allegedly rust after Id. at 406. sought certify Guarino there false advertisements then had essentially the same class as she does brought similar Lanham Act consumer herein. Id. In what turned out to abe history claim. The court reviewed landmark case standing on consumer un Act, acknowledging Lanham that con Act, der the Lanham the Honorable Jo standing long topic sumer been a had seph E. Irenas of the District Federal Indeed, debate. Id. 1171-76. as was for the Jersey Court District of New noted pointed out Guarino her brief purpose the Lanham Act’s of regulating court, Judiciary a 1988 House Committee commerce and protecting commercial in report “reported favorably had bill terests making actionable certain acts 43(a) amended Section to au competition. of unfair He then found that person, by] ‘any including thorize [suit consumers had no standing either as com consumer, who is or believes he petitors non-competitors or under section likely damaged by any use 43(a) of despite that Act its broad and ” description representation.’ such false ambiguous language granting standing to (quoting H.R.Rep. Id. at 1178 No. 100- “any person,” which had led to debate on Sess., 32). Cong.2d 100th Howev *8 years. question the Id. 409-10. er, a House-Senate Conference Commit Compare Raymond Arnesen v. Lee Orga provision. tee had the Id.13 deleted
nization, (C.D.Cal. Inc., F.Supp. 116 ¶ 1971) (granting standing), confirming Congress consumer with 17 In had York, Colligan v. standing, Activities Club New not the authorized consumer of (2d Cir.1971) Ltd., 442 F.2d all (denying Third Circuit but invited Guarino to Guarino, Jersey, support part of New the deletion resident claims While I as bill, present purchased necessary in the action that she Ul- compromise on this it is un- Pennsylvania. in tra® long in the run. I to fortunate continue already stand- believe that consumers have law, ing reported under current and that Cong.Rec. to sue As at 135 H1207-02 st st (101 Session), Congress, provision only deleted clarified Kastenmei was Mr. er stated: that law. ones, ac- do authorize consumer class pursue in the New her suit courts of Jer- .... tions sey Pennsylvania instead: and/or omitted). (citations Id. 1178-79 policy that underlies question The of following year, appellant Guari- not false adver- appeals these whether state, of to the courts her home no turned is, thing. It and tising a bad consum- Jersey, certify same seeking New question of ers victimized it. The are opinion In an dated March national class. institution, of or set insti- policy is what 21,1995, Weinberg of Barry the Honorable tutions, identify- charged should be New Superior State of Court ameliorating its ing advertising, false class Jersey, County, certified the Camden and, long in the malign consequences, Fraud Jersey Consumer under the New run, its dominion. shrinking State Act, seq. et See Camden 56:8-1 N.J.S.A. authority in this courts have substantial 00192-94, 5 supra. note County No. L judge-made misrepre- field virtue of Jer- However, he limited the class New law, legisla- sentation some state purchased Ultra® sey who had consumers have, through legislation tures such Thereafter, in Guarino that state. Deceptive the Uniform Trade Practices Pennsylvania, bas- in appellants other filed Act, authority. undertaken to widen that made in upon purchases ing their action Congress public a measure of conferred a national class. proposing this state and on authority enforcement the Federal filing original In after the and, through Trade section Commission complaint prior in action but present 43(a) Act, Lanham has vested com- amended filing appellants’ jurisdiction to enter- the Federal Courts decertify the a motion to plaint, Sun filed categories private tain law certain grounds that Jersey in New on the on of false adver- predicated suits claims a national over a pursuing was Guarino tising. claim, Jersey that the New state to pursue option members should have “where their their claims both in terms of claims would be broader suggested that the Federal Some geography.” and of causes of action Trade Commission has been suffi state class argued Jersey the New ciently watchdog effective of consumer Pennsylvania national part was a interests, protections af economy, class, thus, in the interest forded consumers in state courts Pennsylva- litigated be the case should inadequate. Such seemed 10, 1996, Jersey New May nia. On Judiciary view the House Committee the class. court decertified sec proposed amending when it their continued Appellants then 43(a) expressly include consum solely in this Commonwealth’s claim among those to sue. ers entitled Philadelphia County In Court courts. th (100 Cong.2d H.R.Rep. 100-1028 Pleas, alleged that appellants Common 1988) Sess., However, 13-14. that view in- ads, had due to the sales Ultra® prevail Congress at that time. did not had been price of Ultra® creased and the been otherwise have higher than it would states, including FN26: .... number [A] They proposed period. during *9 adopted Decep some that have Uniform substantial been a averred the ads had Act, do tive Practices not authorize Trade Ultra®, buy deciding to factor in their actions, an ... consumer class since insignificant damages may be too individual's they they have done had which would not suit, provi bringing a to warrant federal engines their give known that it did not particularly sions class actions be for also caused power. ads had greater The deception cases. suitable for use in consumer than gasoline states, pay them to more for Ultra® including large some But ... some
H61 1710, they paid. They setting would otherwise have Rule of Civil Procedure forth certify fact, law, in sought to our courts a class of: his findings of conclusions 1710, his the basis for decision. Pa.R.C.P. All persons the United States who Appellants timely filed a notice Pa.C.S. purchased Sunoco Ultra® 93.5 and 94 of appeal. personal, family for or house- purposes hold February from ¶23 appeal, appellants present On 6,May through 1992. Excluded from the following issues for resolution: Company, Class defendants Sun (R M) Company, Inc. and Sun Inc. & 1. a claim violation Whether and defendants’ officers and directors. Trade Prac- Pennsylvania’s Unfair Consumer Law tices and Protection proposed class for certification was proof requires plaintiffs of a actual upon not to those relied limited who upon an allegedly reliance false or ads.14 if deceptive statement the false even ¶ 20 At the hearing, class certification it deceptive statement caused the appellants’ position was that under plaintiff monetary damage by rais- UTPCPL, 201-1-201-9.3, §§ 73 P.S. reli- ing product plain- the cost deceptive ance on Sunoco’s allegedly ads purchased? tiff need not be shown each member of the class may before the be class certified. 2. a Pennsylvania may Whether Appellants that, essentially claimed certify a class consisting members purposes this Commonwealth’s causa- (a) of several states when the defen- tion requirements certification, for class a Pennsylvania corporation, dant is damages all Ultra® during consumers (b) principal place the defendant’s shown, period the class have been it once (c) is in Pennsylvania, business has been that the demonstrated Sun’s ads deceptive defendant’s conduct was Ultra®, caused price inflation of and that conceived and disseminated from some consumers’ purchasing decisions (d) Pennsylvania, causally connected to false state- significant has most contacts ments in the ads. aspects litigation? with all ¶ 21 appellants Sunoco countered ¶ 24 Preliminarily, we a denial note that had not satisfied the causation require- is no longer certification considered a for class ments certification because under Appel final order under Rule of amended UTPCPL, individual detrimental reb- late not Procedure for it does dismiss This, anee on the ads must be shown. however, parties; all appro claims or all claimed, would render class certification priate cases, appealable it is considered inappropriate. It also that a argued na- Appellate under Rule of Procedure 312 or may tional not be certified a Penn- Note, Pa.R.A.P. 341. court has Our sylvania court. determined that class action certification
¶22 denial, After an similar hearing, extensive circumstances under Stephen us, appealable Honorable E. Levin the Court those case before Philadelphia Pleas Common as a order. v. Termi County collateral DiLucido Int’l, agreed points. Pa.Super. with Sunoco on nix both He DiLucido, denied class the stan certification simulta- In we found neously opinion as been met required by issued dards of 31315 had Pa.R.A.P. Weinberg provides: Frederic withdrew as 15. Pa.R.A.P. 313 representative, though plaintiff, not as (a) dur- appeal Rule. General An taken ing the course of the class certification hear- right as of from a order of an collateral ings. appellant is the He one who did agency court. administrative or lower assertions, (b) recall the ads' certification Definition. A collateral order is an or- findings separable court noted its der from and of fact. collateral *10 1162 1) that the five class certifica- denying class certifi- can conclude
because the order will requirements are met.” Id. This collateral to tion separable cation was from and opponent comes suffice unless the class action for primary cause of UTPCPL- evidence; contrary if is 2) there forward with liability; actions were predicated class fact, essential an actual conflict on an provide in small claim- established order to non-persua- proponent the risk of “bears compensation a method of for ants with an “affirma- Requiring Id. at 456. sion.” litigate, small to claims otherwise too requirements have showing” tive that the important denied right this is too be however, is, certification been met class 3) review; any claimants since small stage pro- “the inappropriate, because away turned without recourse would be is ceedings at which the class certification large remedy if obtained a even claimants initially and the trial to be determined ir- individually, the small claims would be supervisory powers over court’s extensive reparably lost unless certification be for a strict class actions obviate the need Id. at same rationale granted. 1239. The Id. 454-55. proof.” burden of at properly is holds true here. The case stan- before the court. We turn our ¶ 27 Trial courts are vested dards. making broad such decisions. discretion 197, Time, 189, Inc., Pa. ¶ 25 It is and oft-re v. 466 strong Klemow that, 12, (1976); v. Meats A.2d 16 Prime peated policy of this Commonwealth 352 769, 460, Yochim, certification, Pa.Super. 422 619 applying the rules class (1993). lower “Accordingly, 773 liberally made and in decisions should be class certification denying court’s order maintaining favor of a class action. Weis appeal, will not disturbed on unless be mer v. Beech-Nut Nutrition by Weismer require neglected court consider 403, Corporation, Pa.Super. 419 615 A.2d or abused its discretion ments rules 428, (1992); D 'Amelio v. Blue Cross 431 DiLucido, at supra applying them.” 441, Pa.Super. Lehigh Valley, 347 500 A.2d 1141). D’Amelio, (citing supra 1137, (1985); v. Prudential Janicik 120, 451, Co., Pa.Super. Ins. 451 A.2d re certification 28 The five class (1982); Bell Consumer Beneficial quirements found at are 192, Co., Pa.Super. Discount 360 A.2d Rule of Procedure 1702: Civil suits This is because such may of a One or more members that, in all the assertion of claims enable representative parties sue or be sued likelihood, litigat would not otherwise be ac- on behalf of all members in alter, Bell, “The supra. ed. court if only if later modify, or revoke the certification (1) join- is so numerous that litigation developments reveal impracticable; all is der of members is prerequisite some to certification (2) questions law or fact there are Janicik, supra citing satisfied.” class; common 1710, 1711. Pa.R.C.P. (3) rep- claims or defenses typical parties resentative At a class certification hear class; claims defenses pro with the ing, proof the burden lies but, (4) hear will ponent, being preliminary parties representative Janicik, pro- heavy adequately burden. assert and ing, fairly it is not class under proponent only need tect the interests of the supra at 455. The 1709;16 in Rule to make out a the criteria set forth present evidence sufficient case “from which the prima facie right 42 Pa.C.S. of action in- Pa.R.A.P.
main cause
volved
where
important
denied review
too
to be
question presented is such that if
and the
1709 reads:
16. Rule
judgment
postponed
final
review
until
case,
irreparably
will
lost.
the claim
*11
(5) a
action provides
class
fair and
Consumer Protection Law was
[T]he
method
adjudication
efficient
of
designed
equalize
position
to
the market
the controversy under the criteria set
strength of
and
the consumer vis-a-vis
forth in Rule 1708.17
perception
the
A
seller.
unfairness
Pa.R.C.P„
1702,
Rule
42 Pa.C.S. Unlike its
Legislature
regulate
led the
to
more
counterpart
23(b),
federal
at Fed.R.Civ.P.
closely market
transactions.
The mis-
Pennsylvania’s rule does not
require
to be
the
chief
remedied was
use of
the
“superior”
class action method be
to
deceptive
practices by
unfair or
acts and
Janicik, supra
alternative modes of suit.
sellers.
461; Explanatory Comment,
Rule 1708.
UTPCPL,
In interpreting
the
purpose.
pur
must adhere to its
“The
presume
Legisla-
cannot
the
(cid:127)We
pose of
protect
the UTPCPL is to
the
ture when
control unfair
attempting to
public
deceptive
from fraud and unfair or
deceptive practices
and
in the conduct of
practices, and
business
the statute is the
or
trade
commerce intended to be strict-
principal
doing
means for
so in the Com
ly
bound
common-law formalisms.
monwealth.” Pirozzi v. Penske Olds-Cad
illac-GMC, Inc.,
the
Rather
more natural
inference
is
Pa.Super.
Legislature
supreme
Our
the
intended the Con-
Properties, supra:
Monumental
stated in
sumer Protection
to be
given
Law
determining
(ii)
In
representative
adjudications
respect
whether the
to
with
individ-
parties
fairly
adequately
will
and
assert and
ual members of the
which would
class
class,
protect the interests of the
the court
dispositive
practical
matter be
of the
among
shall consider
other matters
parties
interests of other members not
to
(1)
attorney
represen-
whether the
for the
adjudications
substantially impair
the
or
parties
represent
tative
will adequately
impede
protect
ability
or
their
to
their
class,
the interests of the
interests;
(2)
representative parties
whether
the
(4)
any litigation
the extent and
nature
have a conflict of interest in
mainte-
the
already
against
by or
commenced
mem-
action,
nance of the class
(3)
and
involving any
bers
the class
representative parties
whether
issues;
same
acquire
adequate
or can
financial
(5)
particular
whether
ap-
forum is
resources to assure that the
interests
propriate
litigation
the claims
the class will not be harmed.
class;
the entire
1709, 42
Pa.R.C.P.
Pa.C.S.
(6)
complexities
whether in view of the
expenses
litigation
issues
or the
provides:
17. Rule 1708
separate claims of individual class mem-
deciding
In
whether a
is a
class action
fair
support
bers
insufficient in amount to
and
adjudicating
efficient method of
actions;
separate
controversy,
among
the court shall consider
(7)
likely
whether it
that the
amount
other matters the criteria set
forth
subdi-
which
recovered
individual
(a), (b)
(c).
visions
class members will
small in
be so
relation
(a)Where monetary recovery alone is
expense
administering
effort
sought, the court shall consider
justify
action as not to
(1)
class action.
questions
whether common
of law or
(b)
equitable
declaratory
Where
or
relief
predominate
fact
any question
over
af-
sought,
alone is
the court shall consider
members;
fecting only individual
(1)
(1)
(2)
the criteria set forth in subsections
size
class and the difficul-
(a),
(5)
through
of subdivision
likely to be
ties
encountered
the man-
(2)
action;
party opposing
whether the
agement
action as a class
(3)
grounds
acted or refused
act on
prosecution
has
separate
whether
class,
generally applicable
against
thereby
by or
actions
individual members
making
equitable
declaratory
final
re-
of the
(i)
would create
or
a risk of
respect
appropriate
varying adjudications
lief
with
the class.
inconsistent
(c)
respect
monetary
with
Where both
other relief
individual members of the
party op-
sought, the
class which would confront
court shall consider all the cri-
(a)
(b).
posing
incompatible
stan-
teria
both subdivisions
conduct;
dards of
Pa.R.C.P.
42 Pa.C.S.
*12
parallel
the
a manner
to
reading
consistent
bers of
class
pragmatic
reading
—a
jurisdiction over
day
reality.
long-arm
non-resident
modern
economic
following
Note
Pa.
Explanatory
aliens.”
467-70,
at
329
at 820-22.
Id.
A.2d
(1977).
1701
Phillips
See
Petrole-
R.C.P.
¶30
governing
the
Having established
797,
2965,
Shutts,
472
105 S.Ct.
um
U.S.
standards,
presented,
turn
the
to
issues
(state
(1985)
may
H65 reliance, people the number of such defeating states where the first re- thus certification, allowed, ad, quirement for claims are who had seen the perceived implied it, its message, believed ¶ 37 The certification court found that power justified found the gas increased because individualized was nec- showing higher price, and relied solely had on that essary, common and fact questions law Ultra®, message purchase make a present, defeating were also not the sec- 2,987, a approximately group was he which requirement Rule ond *13 refused characterize as “customers.” ¶ requirement, typicahty, 38 The third those, He that stated the number of because, the court found unfulfibed as it customers, “customers,” repeat or would in opinion, ap- has stated its certification be between one and 597. He it testified pebants’ typical claims were “not of those impossible would be to determine who belonging people to a as defrauded people these were because stud- consumer misrepre- a result of its rebanee on alleged ies had not performed been time. the Weinberg sentations or omissions.” could subject not recall or seeing hearing the ¶35 The certification court concluded advertisements, but Guarino and Gordon appellants that could not meet the first The specifically remembered them. court three.requirements 1702, of Rule numeros- appellants typi- stated that these two ity, commonality, typicality, because cal a composed of those who did “the element rebanee has been omitted purchased see or hear the ads and “who from the class definition.” The court part they Ultra®—at least in be- —because predicated this on conclusion its statement perfor- it enhance lieved would their cars’ appellants’ that all of UTPCPL claims However, mance.” the court refused to fraud, noting sounded Rule its class, certify such a finding that rebanee opinion that individual showing “[a]n necessary. was on part potential plain- reliance of each ¶ 39 The court did not in an engage tiff ... required in fraud-based suits.” (4) (5) analysis of subsections Rule 1702, Weis superfluous finding per that as ¶ 36 numerosity, As to the court mer, supra, bght of its conclusions as to stated that “identifying injured parties the first three requirements of that Rule. impossible would be without an individual readily 40 It that apparent is thus that inquiry im make certification entirety of Judge findings Levin’s concern- proper.” reason, found, For this ing Rule 1702 on his that hinge conclusion sufficiently class could not be identified. appebants upon must demonstrate reliance narrowly drawn, When a class is there but fulfill the advertisements order to so many potential stib that members Therefore, chal- appellants’ UTPCPL. joinder impracticable, the class satisfies impheates lenge this conclusion alone numerosity Weismer requirement. entirety findings of his and conclusions Weismer, supra at 430. However, where as to class certification. poorly the class definition is so estabbshed court is unable to ascertain who To ascertain whether show are, potential class members then ing required, of reliance is indeed we turn numerosity requirement is not met. language of the UTPCPL. The Id. The found the latter situation was complaint, amended filed on October necessity 1996,20 before it due to showing abeges following of a Sun committed the posed actually of those who believed this mis- UTPCPL was amended December on 18,- (which representation he estimated at days. in 60 Since the effective 000), second, not, and the of those date, who did complaint was amended filed before (which general skepticism due to he estimated prior applies version the UTPCPL 36,000). division, As to this latter Note see this case. 22 infra. (classed employee position and the deceptive employer “unfair or actions insured, at- practices”) under 73 this Law acts or P.S. section insurer 201-2(4): more tempts place equal on terms These remedial seller and consumer.
(v) Representing goods or services predicated legisla- all on statutes are sponsorship, approval, character- recognition unequal bargain- tive istics, uses, or ingredients, benefits in mar- power opposing forces ing they do not have or quantities Instantly, Legislature ketplace. sponsorship, ap- has person strove, ad- by making certain modest affiliation, proval, status, connec- justments, the fairness of mar- to ensure have; tion that he does not No sweeping changes ket transactions. relationships were occa- legal law, sioned the Consumer Protection *14 deception the prevention of since (vii) Representing goods or ser- has al- exploitation advantage of unfair standard, particular of a vices are object legisla- an ways been of remedial of quality grade, goods or or that are tion. model, if particular style they or are another; Law Consumer Protection Since the designed to thwart part inwas relevant (ix) Advertising goods or services sense, it is in to be statutory fraud the advertised; intent not to as sell them object its liberally to effect construed practices. deceptive preventing unfair or (foot- 457-60, at 815-17 Id. at 329 A.2d omitted).21 notes and citations (xvii) Engaging any in other fraudulent ¶ deceptive” all “unfair or Not conduct which creates likelihood the are practices under statute business misunderstanding. or of confusion 201-2(4). § P.S. the nature of fraud. 73 201-2(4). § These P.S. actions generis nature The is of sui UTPCPL the by made unlawful section 201-3 of practices array “encompasses § same Act. 73 P.S. 201-3. off, analogized passing might which be infringement, trademark interpret bearing misappropriation, the We UTPCPL fraud, advertising, disparagement, false guidelines in mind based on the statute’s contract, and of warran breach of breach purpose by supreme as forth our court set O’Hara, Pa.Super. ty.” supra: Gabriel Properties, in Monumental (1987) (citing individual 534 A.2d Legislature sought by the Consum- (footnotes 201-2(4)) § omit subsections of public er Law to benefit the Protection ted). among at other large eradicating, in the amended deceptive” 44 Of the claims stated things, “unfair or business us, are in nature legislation complaint two practices. Just earlier before (vii) or (marketing altered equalize position was of fraud: designed to quoted policy expressed in lan- points out us time Monu- statements 21. Sun decided, private Properties pri- mental was actions legislature’s guage, later addition UTPCPL, but UTPCPL, were not authorized under only standing to the if vate consumer Attorney General be- actions on ap- anything, quoted enhances statements’ Therefore, claims, the public. half of the standing plicability. consumer The advent of just quoted purpose we statement of greatly fortified the stat- did not weaken but "dangerously misleading.” disagree. We large. purpose protecting public ute's diminishing applicability Far from
H67 (miscellaneous (xvii) Id. at 1240-41. While goods) inferior mon law fraud. However, practices). fraudulent two are common law granting that the elements of (v) (de- advertising: the nature of false proven must fraud under those indeed ceptive services, marketing goods, grounded sections of UTPCPL businesses) (ix) (bait Id. advertising). fraud, stead- we nonetheless maintained conviction, expressed fastly our earlier ¶ The certification court failed to note Gabriel, supra, sec- several UTPCPL the difference between these two catego- simply tions are not fraud-based do appellants ries. Its conclusion that must not, therefore, require showing of reli- premise show reliance was on the based specified: ance. explicitly We then more appellants’ all of claims UTPCPL sound in fraud. For upon relied If explored parallel actions for DiLucido, swpra at 1241. The certifica- deceptive conduct in sec- delineated continued, tion opin- 201-2(4), Rule 1710 its we would discover various ion: separate standards for distinct and would, therefore, deceptive
An
It
showing
practices.
individual
of reliance on the
is,
part
potential
apply
of each
plaintiff
logical
there-
seem
those same stan-
fore,
required in
correspond-
fraud-based suits.
dards for actions under the
201-2(4)
UTPCPL,
such a showing
ing
“Because
would normal-
sections
ly vary
person
person,
from
persons
subject
[fraud
so that
not be
not generally appropriate
are]
claims
differing standards
identical conduct.
*15
in
plaintiff-class
resolution
a
action.”
DiLucido
concept,
1240. Applying
at
this
Klemow,
(n.17),
H69 representations Rather, leged by Appellee attempts us. to convince their precise caused loss. required kind of causation a depends upon UTPCPL case the elements DiLucido at Applying stan- this upon cause the correlative of action dard, appellant we concluded that neither particular unlawful practice which presented had sufficient evidence to estab- 201-2(4) section is based. lish that their losses were result misrepresentations appellee. This fail- posed, In51 order to answer the issue ure, turn, meant their that claims inquire we must therefore whether pro- typical not be members connection, requisite causal and indeed posed class and not thus would meet each of the other ele- required whether 1702(3). Id. requirement of There- Rule ments, has under standard been shown fore, we affirmed the denial of certifi- (v) (ix) and advertising false articulated cation. Hushr-Tone and adopted by court in our not, therefore, 49 DiLucido should Fay, DiLucido and the com- whether holding required read as that reliance is (vii) applicable mon law fraud standards Instead, for all UTPCPL claims. (xvii) met, have likewise been to such held although showing therein (a prima degree showing) as to facie required reliance to establish pass the requirements class certification (ii), (v), (xvi), violations sections Rule 1702. nonetheless, plaintiff a UTPCPL must still ¶ 52 an Reliance indeed ele establish violation of the statute misrepresen ment common law fraud or Id. or her caused his loss. Noon, tation. Bortz v. Pa. ¶ 50 DiLucido thus articulates the rule 1999 Pa. LEXIS plaintiff “a has the burden of estab- agree with court that We the certification lishing a causal connection to or reliance this element necessitates individualized on misrepresentations.” Fay, alleged agree appellants’ inquiry. We also DiLucido, supra supra) 714 (quoting claims under the two fraud-based unlawful added). (emphasis is a generic This state- (vii) (xvii), practices, cannot meet the only ment single does not establish requirements first three of Rule UTPCPL, standard causation under the the same reasons that court has articulat for, in general language addition reason, set forth For ed as above. 201-9.2, multiple section there stan- affirm its denial as to certification dards for causation under that statute.24 *17 those claims. Nor accept interpretation can we that the ¶ However, plaintiffs “this Court meant prove had to 53 as to the false ad ” both reliance and a connection, claims, (v) (ix), vertising-based causal we find and colleague 24. As the dissent learned of our the careful distinctions this court had drawn notes, astutely panel recently a of this court between of section the various subsections stated reliance however, that must shown under all cases; 201-2(4) were the in those UTPCPL, provisions of the in a case decided quoted apply statement from Basile to literal- being while the case at hand was considered. Moreover, ly, the that would be result. Services, Basile v. H & R Block Eastern Tax dissent, making quoted by the statement the Inc., (Pa.Super.1999). A.2d 729 584 Meats, upon Basile court Prime Inc. the relied However, of, unique specific the situation Yochim, Pa.Super. 422 for, provision and false elements of advertis- (1993), the solely a case which fraud- Basile, ing they not at issue in while are 201-2(4) § based "catch-all” subsection of The herein. over-broad statement of the Ba- issue, (xvii) a which was case in —and is, therefore, quoted by sile court the dissent again carefully language limited its to court differing obiter which dictum. standards precisely it was law indicate that the common apply provisions the P.S. individual of 73 (xvii), incorporated and elements of fraud via 201-2(4) section were not examined in Basile. UTPCPL, showing required the a not It is clear that the court did Basile not intend reliance. Id. Gabriel, DiLucido, Fay to overturn and and and inconsistent with law that advertising propriate a false claim the elements of against fairly liberally been made out. made in favor Sunoco have decisions should be Fay. actions; first clarity, challenged, For we shall address when allowing advertising and then con- however, per- elements false proponent bears burden of re- sider whether the class certification suasion). quirements fulfilled. have been ¶ Second, the advertisements’ tenden- First, the FTC has found false segment a cy deceive substantial provides greater ads’ octane claim that been specifically has also found audience indeed, power; that was admitted Su- advertising That was by the FTC. purposes noco in 1974. For of class itself purchas- likely to make difference certification, engage we need not subject expert was the tes- ing decision higher analysis extensive of the effect economist, who ex- timony by appellants’ contempo- average octane on the per difference plained that the fifteen-cent rary engine, automobile or even of which mid-grade and the gallon between Ultra® today few the road engines automobile on gasoline was such that consumers require 94 as 91 or opposed to even if for Ultra® only spend money the extra octane, for certification. purposes obtaining a com- they they were believed performed analysis already Such has been Moreover, appellants mensurate benefit. itself, pro- for us the FTC both that, trial, showing have a fair made re- ceedings against and in its Sunoco through prove studies they will be able peated emphatic warnings to consum- advertising cam- to which the degree ers such claims believe as Sunoco tendency to deceive paign at issue had a here made. It to have such is rare audience, caus- segment substantial if
profusion adjudications, of prior even buy supporting ing consumers to new only advisory, very question on the before Again, as Ultra®. prices increased Further, Jersey a court. the New element, appellants find to this found the claim sufficient for class certifi- burden, despite Sun’s rebuttal borne their cation, although we its certifica- recognize testimony. Janicik. requirements different somewhat acknowledge than own. that Sun cau- requisite degree our We Finally, presented testimony two engineer- representation is sation the false ing experts at hear- certification in con- likely have made a difference truth ing prove in order to Appellants’ decisions. purchasing sumers’ ads; however, appellants’ in its en- claims testimony that he presented economist sufficiently quite fuel gine expert trial, and this at prove able to would be experts, even credibly rebutted Sun’s it did testified plaintiffs themselves apart multiple from the FTC decisions Although to them. make such a difference warnings. Even at- consumer alert Sun’s presented re- marketing professor Sun’s argument stated at the close of his torney entirely testimony, it was based buttal falsity that the truth or ads is rebanee upon legal conclusion *18 the the Under agree. fact-finder. We shown, conclusion we a would need be certification, applicable for class standards reason, has this find incorrect. For have proponents, appellants, the here class econo- effectively appellant’s not rebutted prima making borne their burden Janicik. mist. This is sufficient. repre- showing that there was a false facie ¶ then, back, to the Turning fact, the first element of sentation 1702, that Rule we find requirements of claim under DiLucido advertising false false Janicik, under the standards of the UTPCPL supra and Hush-Tone. See at reviewed, just advertising claims we have plaintiffs to (requiring 454-55 class action the our review of establishing and on the basis of “affirmatively facts show” record, join- that so numerous inap- for certification is the is requirement each
H71 impracticable. der of all ly, requirements members is We we find the of Rule 1709 questions also find that there are of law or have been met. class, fact common to the and that ¶ fifth requirement 60 Rule 1702’s is that appellants claims of and Guarino Gordon action a fair and efficient provide typical claims defenses of adjudicating controversy method of un- parties. require- Rule first 1702’s three 1708, der the standards of which Rule ments have thus been fulfilled. be considered here subsection must under fourth requirements 58 The and fifth (c), appellants seek monetary both and Rule 1702 have not been addressed equitable by appel- relief. As was noted However, the certification court. the fact counsel, primary dispute. lants’ this is the
that the court did specifically not address record, the basis of On our review opinion them in entirely its has not hin- only can that appellants we conclude have issues, dered our review of these for sever- persuasion borne the burden com- al of the relevant ad- fully factors questions mon of law or fact predominate dressed at the hearing. certification We individual questions, satisfying over Rule turn to Rule 1709 to find whether Gordon 1708(a)(1). will, representative Guarino as parties, fairly adequately assert protect ¶ However, as to remaining re- per interests the class as Rule 1708, quirements of Rule the certification 1702(4). any did findings, not enter and there paucity is a of record Although treatment. attorney’s adequa 59 As to the empowered courts are ‘[ujntil cy, “[generally, contrary classes, certify national they have often demonstrated, courts will assume so, done and a consideration of the factors members bar are skilled in their enumerated Rule 1708 is critical to de- ” profession.’ Janicik, supra quot at termining appro- such whether ing Anderson, Dolgow 43 F.R.D. priate find case hand. We our- (E.D.N.Y.1968). high note We selves unable address these factors. professionalism standards of counsel Therefore, we remand this case for a hear- both present dispute. sides in the As to remaining ing requirements on of Rule requirement second of Rule 1708(c) and as proceedings further neces- representative parties have no conflict sary. The certification court directed interest, although find that Guarino determine the issue of class certification present did at time one a conflict in the consistently opinion, this issuing with co-existence her New Jersey action supplemental opinion per Rule Civil one, longer that conflict is no only Procedure 1710 which need address present Jersey because the New was remaining factors set forth Rule decertified due existence of the case 1708(c). Further, before us. “have again, courts generally presumed no in conflict of ¶ 62 Order affirmed as to claims under terest exists unless otherwise demonstrat (vii) (xvii) subsections of UTPCPL ed.” Id. No other conflict has 201-2(4), § as to 73 P.S. reversed Order been alleged. As to third require (ix) (v) claims under subsections ment, representative parties that the pro- statute. remanded for same Case or can adequate obtain financial resources ceedings opinion. consistent with this Jur- protect *19 sufficient to the the interests of relinquished. isdiction class, we are satisfied both the exten history sive of this as case well as McEWEN, Judge President files a representations
counsel’s will 1163 counsel According- Dissenting Opinion. advance the costs of litigation.
1172 1137,
McEWEN,
441,
Pa.Super.
500 A.2d
1141
Judge, dissenting:
347
President
denied,
630,
(1985), appeal
514 Pa.
522
opinion
majority
1
While the
(1986).
A.2d 559
intricate
analysis
reflects a careful
presented by
3 Rule 1702
Rules
legal
corporate
issues
impudence25
appellees,
provides:
I am obliged
of Civil Procedure
dissent for I would affirm the order
PREREQUISITES
TO
RULE
denial of class certification.
A CLASS ACTION
¶ 2
E. Levin
Judge Stephen
The learned
of a class
One or more members
questions
law
concluded “that common
representative parties
sue or be sued as
predominate
or fact
the case and
did
in
all members
a class ac-
on behalf of
that a
would not
a fair and
class action
only
tion
if
efficient
the claims
adjudicating
method
(1)
joinder
numerous that
the class is so
in
v.
[at
action].”
issue
DiLucido
impracticable;
of all members is
Inc., 450
Terminix International
Pa.Su-
(2)
or fact
questions of law
there are
1237,
(1996),
per. 393,
ap-
676 A.2d
1239
class;
common
denied,
655,
peal
546 Pa.
Motorists Mutual Insurance court, broad discre- trial exercises 602, 330, 604, Pa.Super. 537 A.2d it, determining whether granted (1987). appeal, will not On disturb fact, would, in be a fair and a class action cer- denying the trial court’s order of the con- of resolution efficient method tification unless the court failed to con- in relevant troversy. provides, The Rule of the rules of requirements sider part: discretion procedure civil or abused its CER- FOR them. RULE 1708. CRITERIA applying DETERMINATION TIFICATION. Corp., v. Beech-Nut Nutrition Weismer FAIR AND ACTION AS OF CLASS 428, Pa.Super. ADJUDI- OF EFFICIENT METHOD Sig Accord: Hanson Federal CATION Pa.Super. 679 A.2d Corp., nal (1996); a class action is determining whether v. Terminix Inter In DiLucido Inc., 1240; adjudicat- method of a fair efficient supra, national 676 A.2d at controversy, shall con- Lehigh Valley, ing D 'Amelio v. Blue Cross recounts, manner, performance of Suno- majority characteristics aptly As the the Federal Nonetheless, Sun in gasoline....” Trade Commission 1974 concluded that co advertising campaign been "unfair had campaign which resembled that undertook a result, deceptive”. As a Sun entered into prior "deceptive” campaign. latter Sim This required cease a consent decree that Sun to action. effort underlies instant "misrepresenting, any and desist from
H73 justify among istering sider other matters the criteria the action not to (c). (a),(b) set forth subdivisions class action.
( n ) monetary recovery is Where alone 1708(a) supplied). (emphasis Pa.R.Civ.P. sought, the court shall consider (cid:127) fact, of findings The trial court’s (1) questions whether common of law evidentiary sup- enjoy which substantial predominate any question or fact over port may not be the record thus affecting only members; individual Court, by include: disturbed (2) of diffi- the size the class and the Corpo- 1. Defendants are likely culties to be encountered in the manufacture, in the sale engaged rations management of the action as a class gaso- of advertising Sunoco Ultra action; lines to consumers. (3) prosecution separate whether the of only two 2. Defendants manufacture by or against actions individual mem- grades” gasoline: “Economy” “base bers of class would create a risk of octane; a minimum of 86 with “Ul-
(i) adjudica- inconsistent with varying or tra” a minimum either 93.5 or 94 respect with to mem- tions individual octane. bers of the which would confront grades” 3. These “base are distributed party in- opposing class with to Sunoco franchises and blended conduct; compatible standards pump each to create intermediate
(ii) adjudications respect indi- grades gasoline, typically rated at vidual members class which 89 and 92 minimum octane. practical
would as a disposi- matter be 4. “Octane” an index number that is tive of interests other members to engine measures fuel’s resistance not parties adjudications to the or An require knock. automobile’s octane substantially impair impede or their ment the recommended fuel octane protect interests; ability their knock.[ car requires engine avoid 26] (4) the extent any litiga- and nature of already
tion against commenced or During period, 5. the class defendants any members involving supplied gasoline approximately issues; the same twenty- Sunoco stations in retail (5) particular ap- states, whether the approximately forum is three including propriate for the litigation Pennsylvania. of the claims 647 stations class; of the entire period year during 6. Each the class ( n ) whether the complexities view of Sunoco retail stations sold between 750 expenses gallons issues million and million litigation total the separate gasoline, claims of individual class 93.5 and 94 amount Ultra approximately equal members insufficient amount to to 15% of total Su- actions; support separate noco sales.
(7)whether
likely
During
period,
that the amount
Ultra 93.5
the class
which
gasolines
priced
be recovered
typically
individual
higher per
class members will be so small in rela-
fifteen
than
gallon
least
cents
expense
non-premium
grades
gasoline.
and effort of
admin-
Collegiate
pro-
represents
New
Dictionary
Webster's
uid motor
fuel and that
following
vides the
percentage by
definitions:
in a
volume of isooctane
consisting
fuel
of a mixture of
reference
any
liquid
octane 1:
of several isomeric
heptane and match-
isooctane and normal
paraffin hydrocarbons
2: octane
C8H18
knocking properties
being
fuel
ing in
number
-
rating; com-
octane number: a
tested
called also octane
number that is used
properties
liq-
pare
measure
anti-knock
cetane number.
*21
heard
ad
18. Plaintiff Gordon saw
During
period,
the class
defendants
8.
gasoline
for Sunoco Ultra
promoted
gasolines
their
vertisements
Ultra
period.
during the class
advertising
both radio
television
campaigns in
markets where
Ultra
purchased
the media
Plaintiff Gordon
19.
during
period, relying
their franchises
located.
gasoline
the class
in
advertise-
assertions
defendants’
on
9. Some of the defendants’ advertise-
it
his cars to
ments that would enable
during
ments for
the class
Sunoco Ultra
superior
accelera-
engine power,
achieve
suggested
Ultra-grade gaso-
period
that
performance.
tion and
provide
superior
lines would
cars with
complaint as-
20. Plaintiffs’ amended
engine performance
of their
as
result
1)
claims:
that defendants
serts five
high octane content.
representa-
deceptive
false and
made
Weinberg
10. Plaintiff
is a citizen
violating Pennsylva-
plaintiffs,
tions to
Pennsylvania
purchased
who
Sunoco Ul-
Practices and Con-
nia’s Unfair Trade
gasoline
personal
tra
in
for
Pennsylvania
(“CPL”), 73 P.S.
Protection Law
sumer
family
to
or
use from 1990 1992.
2)
201-1,
seq.;
et
defendants
§§
that
pur-
fraudulently
to
plaintiffs
induced
plaintiff
11.
Weinberg
While
saw
in
Ultra-grade gasoline
violation
chase
heard advertisements for
Ultra
Sunoco
3)
principles;
Law Fraud
of Common
he
gasolines
period,
the class
during
misrepre-
negligently
that defendants
any
does-not now
the content of
recall
gaso-
Ultra
the characteristics of
sented
specific advertisement.
4)
line;
ac-
improper
that defendants’
rely
12. Plaintiff
on
Weinberg did
express
of an
tions constituted
breach
specific
ad-
any
made
those
assertion
created
claims about
warranty
by their
purchase
to
deciding
vertisements when
5)
defendants
gasoline; and
Ultra
period.
class
gasoline during
Ultra
unjustly
prac-
have been
enriched
Plaintiff
decision to
Weinberg’s
13.
tices
forth above.
set
purchase
gasoline
Ultra
wás based main-
filed as a
Plaintiffs’ suit has been
21.
belief
ly
general perception
on his
following
action on behalf of
that it was the
available.
gasoline
best
class:
proposed
who
persons
All
States
United
14. Plaintiff
is a citizen of New
Guarino
gas-
and 94
purchased Sunoco
93.5
Ultra
Jersey
purchased
gas-
who
Sunoco Ultra
personal, family or household
oline for
Pennsylvania
or
personal
oline
22, 1990
February
from
purposes
family use from 1990to 1992.
from
May
Excluded
through
1992.
Plaintiff
heard ad-
15.
Guarino saw and
Company,
class are defendants Sun
gasoline
vertisements for Sunoco Ultra
M)
(R
Inc.
&
Company,
Inc. and Sun
during
period.
the class
and directors.
and defendants’ officers
purchased
Plaintiff
Ultra
Guarino
suggests
My6
review
record
during
period, relying
the class
ap-
proposed by
certification
on assertions in defendants’ advertise-
an abuse
constituted
pellants
her car
ments
would enable
trial
of discretion
the learned
superior
power, accelera-
engine
achieve
case,
Hanson, the
just
judge.
In this
performance.
tion and
proposed
fact common
all of the
sole
purchase
of Sunoco
17. Plaintiff
a citizen of
class members
Gordon is
remaining questions
gasoline.
Ul-
“The
Pennsylvania
purchased
who
Sunoco
Ultra
person’s
law are
each
gasoline Pennsylvania
personal
unique
of fact and
tra
circumstances,
wit,
pur-
family
[whether
or
use from 1990to 1992.
agree
majority
permit
a national class
I
with the conclusion of the
dure
certification of
Rules of Civil Proce-
action.
personal
preclude
certifi-
family
plaintiffs
chase was for
use as
will not
use,
“However,
opposed
business
whether the class
cation. Id.
where there exist
*22
offending
read or
ad-
member
heard
intervening
possibly
su-
various
spe-
result of
vertisements
as a
those
liability
of
perseding
damage,
causes
misrepresentations by
pur-
cific
appellee28,
on a
cannot be determined
class-wide
Ultra,
chased Sunoco
whether
the class
basis.”
member owned a
ben-
car which could not
Corp.,
Weismer v. Beech-Nut Nutrition
octane29,
efit from increased
of
amount
(emphasis
origi-
F.R.C.P. existed, which were
ual differences issues applica-
compounded by differences laws); Carpenter v. BMW ble state America, Inc., WL 415390
North
(1999 Lexis Dist. U.S.
9272)(E.D.Pa.l999)(denial of class certifi- North against
cation BMW of of claims
America, upon fraud Inc. consumer based *23 fraud,
statutes, negligent law common contract
misrepresentation breach meet predomi- of class to inability
due to requirement where consumer
nance varied, and of each state
protection laws reli- knowledge and
individual issues of ele- commonality
ance overwhelmed
ment). I affirm Thus pro- certification of the
order which denied
posed class. Jeffrey
Annette VIOLA
Viola, Appellants, BOCHER,
Dr. M.D. Chester Jack Associates,
County Orthopedic
Inc., Appellees. Pennsylvania.
Superior Court
Argued Sept. 25, 1999.
Filed Oct.
notes
present
involving
federal cases
dis-
Act6
5 The Federal Trade Commission
Additionally,
pute
although
are relevant.
provided
for the Uniform De
the model
class in the case at hand has since
(UDTPA),
ceptive Trade Practices Act
court,8
Jersey
been decertified
the New
promulgated by
model statute
the Council
proceeding
certainly
also most
in-
in conjunction with
of State Governments
litigants
structive as
involved the same
Hush-Tone, 4
FTC.
v.
Commonwealth
dispute,
(1971).
albeit somewhat different
This Common
Pa. Commw.
UTPCPL,
201-1-
laws.
wealth’s
sections
P.S.
201-9.3,
present
under which the
action is
viewed,
history
of this ac-
6 Thus
brought,
upon
is based
the UDTPA and
begins with a consent decree issued
also
FTC Act.
upon
thus
Compa-
See
by the
Sun Oil
FTC
Assos., Reliable,
Lazin,
Retailers’
Inc.
had
ny, supra. Sun
between
232,