DiLucido v. Terminix Intern., Inc.

• Decision Date: 22 May 1996
• Citation: 676 A.2d 1237,450 Pa.Super. 393
• Parties: Patricia DiLUCIDO, Mitchell Rosen and Dena Rosen, on behalf of themselves and others similarly situated, Appellants, v. TERMINIX INTERNATIONAL, INC., and the Terminix International Company L.P., Appellees.
• Court: Pennsylvania Superior Court

Page 1237

676 A.2d 1237

450 Pa.Super. 393

Patricia DiLUCIDO, Mitchell Rosen and Dena Rosen, on behalf of themselves and others similarly situated, Appellants, v. TERMINIX INTERNATIONAL, INC., and the Terminix International Company L.P., Appellees.

Superior Court of Pennsylvania.

Argued March 28, 1996.

Filed May 22, 1996.

[450 Pa.Super. 396] Jay S. Cohen, Lower Gwynedd, for appellants.

Mitchell S. Pinsly, Philadelphia, for appellee.

Before CAVANAUGH, TAMILIA, JJ., and MONTEMURO, J. ^*

OPINION

MONTEMURO, Justice.

This is an appeal from the order of the Court of Common Pleas of Philadelphia County, denying Appellants request for class certification. For the following reasons, we affirm.

Preliminarily, we must address the issue of whether this appeal is properly before our Court. It is well settled that an appeal may be taken only from final orders, unless otherwise permitted by statute. Pennsylvania Ass'n of Rural and Small Schools v. Casey, 531 Pa. 439, 442, 613 A.2d 1198, 1199 (1992). Previously, certain orders that did not dispose of an entire case, but contained an aspect of finality, had been held to be final orders under Rule 341 of the Pennsylvania Rules of Appellate Procedure. Id. Among these orders was the denial of class certification.

However, on May 6, 1992, the Pennsylvania Supreme Court amended Rule 341 and adopted Rule 313 of the Pennsylvania Rules of Appellate Procedure. Initially, the changes were to govern only those actions which commenced after July 6, 1992. But, on January 10, 1994, the Supreme Court ordered that the new changes apply to all orders entered on or after March 1, 1994 regardless of when the action commenced. As the order from which this appeal was taken was entered on September 28, 1995, this case is clearly within the purview of the new and amended rules.

In contrast to the old rule, the amended Rule 341 only permits appeals from orders which dismiss all claims or all parties. However, the Note following the amended rule provides a partial list of orders which are no longer considered final orders, but which may be appealable under Rule 312 or 313 in appropriate cases. Among those listed is "an order denying class certification in a class action case." Pa.R.App.P. 341 Note. As the parties, in this case, did not seek permission to file this appeal under Rule 312, we must determine whether it is properly before us pursuant to Rule 313, governing appeals from collateral orders. This rule provides:

(a) General Rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower court.

(b) Definition. A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

Pa.R.App.P. 313. Accordingly, in order to qualify as a collateral order, the instant order must satisfy all three factors in the above definition.

First, the order denying class certification clearly is separable from and collateral to the cause of action for liability under the Unfair Trade Practices and Consumer Protection Law (UTPCPL). Next, we note that class actions were established to provide a means by which the claims of many individuals could be resolved at one time, thereby eliminating the possibility of repetitious litigation and providing small claimants with a method to seek compensation for claims that would otherwise be too small to litigate. Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 231, 348 A.2d 734, 737 (1975). Undoubtedly, the opportunity to litigate a meritorious claim is a right that warrants review. Finally, if not immediately appealable, this right would be lost. Any persons who chose to proceed individually would eventually obtain their remedy and would have no reason to appeal the denial of certification, while those with small claims would be turned away without recourse. Accordingly, we find that the elements of Rule 313 have been established, and this case is properly before this Court. Therefore, we will proceed with the issue of whether class certification was properly denied.

Pennsylvania Rule of Civil Procedure 1708(a) sets forth the prerequisites for class certification. It provides that one or more members of a class may sue on behalf of all members in a class, if the court determines that: (1) the size of the class is manageable; (2) common questions of law or fact predominate; (3) the claims of the representative parties are typical of the claims of the class; (4) the representative parties will fairly and adequately assert and protect the interests of the class; (5) the class action provides a fair and efficient method for adjudication of the claims. See Kelly v. County of Allegheny, 519 Pa. 213, 218, 546 A.2d 608, 610 (1988).

In making its decision to deny class certification, the lower court held that common questions of law or fact did not predominate the case and that a class action would not be a fair and efficient method of adjudicating the claims. The court stated that Appellants would be required to prove the elements of common law fraud and would have to show that they relied to their detriment on misrepresentations by Appellee. As such, every member of the proposed class would have to show that he or she saw the misrepresentations, relied on the same, and actually suffered an ascertainable loss. Furthermore, those actually injured would have to show the source of the injury and the type of injury.

The lower court also held that the claims of the named parties were not typical of those asserted for the class. First, it noted that a claim under the UTPCPL requires actions or representations that are in fact misleading and that Appellant Mitchell Rosen testified that he had not been misled by Appellee's representations. Next, the court found that none of the Appellants alleged ascertainable losses, as required under the UTPCPL. Finally, the court noted that Appellant DiLucido was not a typical plaintiff, as she used the property for rental income and would most likely not be protected under the UTPCPL.

On appeal, Appellants raise the following questions for our review: (1) whether reliance is a necessary element of proof under 73 P.S. § 201-2(4)(ii), (v), (vii), (xvi) & (xvii); (2) whether common questions of law or fact predominate; (3) whether the claims or defenses of the representative parties are typical of the claims or defenses of the class; (4) whether Appellants were required to present proof of actual physical injury in order to establish ascertainable losses; and (5) whether Appellants are entitled to relief for the delay in the lower court rendering a decision on class certification.

First, we must note that "[t]rial courts are vested with broad discretion in determining definition of the class as based on commonality of issues and the propriety of maintaining the action on behalf of the class." Klemow v. Time, Inc., 466 Pa. 189, 197, 352 A.2d 12, 16 (1976), cert. denied, 429 U.S. 828, 97 S.Ct. 86, 50 L.Ed.2d 91 (1976). Accordingly, the lower court's order denying class certification will not be disturbed on appeal, unless the court neglected to consider the requirements of the rules or abused its discretion in applying them. D'Amelio v. Blue Cross of Lehigh Valley, 347 Pa.Super. 441, 448, 500 A.2d 1137, 1141 (1985), allocatur denied, 514 Pa. 630, 522 A.2d 559 (1986).

To counter the trial court's determination that the elements of common law fraud must be proven, Appellants contend that the Consumer Protection Law creates a "statutory fraud" for which they need not prove the elements of common law fraud, especially that of reliance. To support this contention, Appellants refer to Commonwealth by Creamer v. Monumental Properties, 459 Pa. 450, 329 A.2d 812 (1974), in which the Court stated that "[t]he Consumer Protection Law was in relevant part designed to thwart fraud in the statutory sense ..." Id. at 460, 329 A.2d at 817 (emphasis added). However, this Court specifically addressed this argument in Prime Meats, Inc. v. Yochim, 422 Pa.Super. 460, 619 A.2d 769 (1993), allocatur denied, 538 Pa. 627, 646 A.2d 1180 (1994), and held that to recover undersection 201-2(4)(xvii) of the UTPCPL, the elements of common law fraud must be proven. Id. at 469, 619 A.2d at 773. The Court explained that the above language was a reference to the legislative attempts to thwart fraud, not to redefine it. Id. at 469-70, 619 A.2d at 774.

However, in Gabriel v. O'Hara, 368 Pa.Super. 383, 534 A.2d 488 (1987), when determining the appropriate statute of limitations to apply to a claim under section 201-2(4)(viii), this Court noted that the UTPCPL "encompasses an array of practices which might be analogized to passing off, misappropriation, trademark infringement, disparagement, false advertising, fraud, breach of contract, and breach of warranty." Such actionable conduct sounds in assumpsit as well as trespass and parallels actions in contract as well as those arising in tort. Id. at 396, 534 A.2d at 495. Therefore, this Court stated that it was unable to characterize all the various claims under the UTPCPL as fraud or deceit. Id.

While the Court in Gabriel did not address the specific sections at issue in this case, its reasoning is nonetheless persuasive. If we explored the parallel actions for the deceptive conduct delineated in section 201-2(4), we would discover various standards for the distinct and separate deceptive practices. It would, therefore, seem logical to apply those same standards for actions under the corresponding subsections of 201-2(4) of the UTPCPL, so that persons would not be subject to differing standards for identical conduct. Applying this rationale, we note that under section 201-2(4)(ii) ¹, a plaintiff is required to establish that a defendant's representations were...