McMonagle v. Allstate Ins. Co.

• Decision Date: 03 April 1974
• Citation: 227 Pa.Super. 205,324 A.2d 414
• Parties: Margaret McMONAGLE, Appellant, v. ALLSTATE INSURANCE COMPANY, a corporation.
• Court: Pennsylvania Superior Court

Page 414

324 A.2d 414

227 Pa.Super. 205

Margaret McMONAGLE, Appellant, v. ALLSTATE INSURANCE COMPANY, a corporation.

Superior Court of Pennsylvania.

April 3, 1974.

Application for Allocatur Granted May 17, 1974.

Joseph M. Zoffer, Pittsburgh, with him Martino, Ferris & Zoffer, Pittsburgh, for appellant.

Robert S. Grigsby, Pittsburgh, with him Thomas A. Matis and Thomson, Rhodes & Grigsby, Pittsburgh, for appellee.

Before WRIGHT, President Judge, and WATKINS, JACOBS, HOFFMAN, CERCONE and SPAETH, JJ.

PER CURIAM.

Order affirmed.

JACOBS, J., files an opinion in support of the per curiam order in which WATKINS, President Judge, joins.

CERCONE, J., files an opinion in support of the per curiam order.

HOFFMAN, J., files a dissenting opinion.

SPAETH, J., files a dissenting opinion.

SPAULDING, J., absent.

JACOBS, Judge (in support of the Order per curiam):

I would affirm the dismissal by the lower court of appellant's class action on the basis that it did not abuse its discretion in dismissing the class action.

It is clear the Pa.R.C.P. 2230(a), 12 P.S. Appendix, which authorizes the commencement of class actions, was based upon Rule 23(a) of the Federal Rules of Civil Procedure. The note to Pa.R.C.P. 2230(a) discloses that '(t)his subdivision adopts the practice under . . . F.R.C.P. No. 23(a) . . ..' In 1966, Fed.R.Civ.P. 23 was substantially changed. In my opinion there would be no purpose in following the outdated practice of a rule that has been revised. Therefore, we should give persuasive effect to the federal law under the present Fed.R.Civ.P. 23.

A person who brings a class action under Fed.R.Civ.P. 23 must satisfy several requirements. For a class action to be maintained it must be demonstrated that '(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.' Fed.R.Civ.P. 23(a). After these prerequisites are met, the proponent of the class action must show one of the following:

'(1) the prosecution of separate actions by or against individual members of the class would create a risk of

(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.'

Fed.R.Civ.P. 23(b). In my opinion, the only subdivision of Fed.R.Civ.P. 23(b) which could possibly apply to the present case would be subdivision (3). Subdivision (1)(A) is not applicable because there is no threat of inconsistent verdicts if several suits are brought. One court has even held that subdivision (1)(A) does not apply to cases concerning monetary damages since the principle of Stare decisis would insure uniform results. Rodriquez v. Family Publications Service, 57 F.R.D. 189 (D.C.Cal.1972). Subdivision (1)(B), as well, is not applicable for there is no evidence that separate suits by some members of the class would impair or impede the ability of other members to protect their interests. See Wright & Miller, Federal Practice and Procedure: Civil § 1774 (1972). The typical case under (1)(B) is where class members have claims against a fund that may later prove to be insufficient to satisfy all of them. Id. In the present case, I can foresee no prejudice by allowing each policyholder in the class to maintain his own lawsuit. Subdivision (2) is clearly not applicable because injunctive or declaratory relief was not requested by appellant in her complaint, nor appropriate under the circumstances of this case.

Unlike subsections (1) and (2), subsection (3), by its own language, gives the trial court wide discretion in determining the fate of the class action. To maintain a class action, under subsection (3), it is necessary that 'the court (find) that the questions of law or fact common to the members of the class Predominate over any questions affecting only individual members, and that a class action is Superior to other available methods for . . . adjudication of the controversy.' Fed.R.Civ.P. 23(b)(3). (Emphasis added.) In addition, various factors, such as the desirability of concentrating the action in the particular forum, the interest of the individual class members which may conflict with the bringing of the class action, and the difficulties of managing a class action, are listed in subsection (3) for the court to consider in reaching its decision.

In the present case, the lower court reviewed these factors and it concluded that '(t)here would be a great expenditure of time, effort and expense to have all the claims disposed of in Allegheny County, not only for the claimants and attorneys but for this court. The claims can be handled more efficiently and with less expense in the respective judicial district.' In essence, the court below was of the view that such claims could be better pursued individually than by a class action. If Fed.R.Civ.P. 23(b)(3) means what it says, these findings of the lower court, which are supported by the record, are determinative of the present case. In my opinion, the facts of this case do not indicate that the lower court abused its discretion and its order should be affirmed

WATKINS, President Judge, joins in this opinion.

CERCONE, Judge (in support of the Order per curiam):

In 1941, when Pennsylvania adopted its present rule permitting the use of the class action device in courts of law, the Supreme Court manifested a clear intention to adopt the practice, as it was developing under F.R.Civ.P. 23(a). ¹ While Pennsylvania did not use the definitive language found in the subsections of 23(a), distinguishing the three types of class actions--so called, 'true, hybrid and spurious' ²--recognition that there were both procedural and substantive differences between the various kinds of class actions that might be maintained was inevitable. The most articulate, though often criticized, description of those differences, first suggested by Professor Moore, developed in federal practice under rule 23(a). Thus, the courts and commentators in Pennsylvania adopted these classifications and terminology, a course not unusual in light of the fact that there has been 'almost complete acceptance of Moore's labels and of the binding effect which he attributes to each classification.' ³

At least three of the most authoritative works on Pennsylvania civil procedure indicate that the types of class actions established under old F.R.Civ.P. 23(a) are equally a part of Pennsylvania law. ⁴ In addition, while the appellate courts in Pennsylvania have not had the occasion to treat the distinctions between the various types of class actions, the lower courts have frequently recognized Moore's labels and the concomitant procedural and substantive differences they entail. ⁵

It has been said that while 'the term 'class suit' is used to describe at least three distinct types of representative suits . . . much apparent inconsistency results from the failure to recognize the differences between them.' ⁶ I feel that the lengthy discussion of whether this is a proper case for the maintenance of a class action, which appears not only in the majority opinion, but also in the briefs of both parties and the opinion of the court below, is required only if one fails to recognize the distinctions between the so-called 'true, hybrid and spurious' class actions, and their bearing upon this appeal in light of its current posture.

The instant case clearly falls under the 23(a)(3)-type class action. '(T)he character of the right sought to be enforced (namely, payment under the Medical Payments provision of the policy after an arbitration award under the Uninsured Motorists provision) for . . . the class is . . . several . . .,' ⁷ and the object of the action is Not any specific property of Allstate, such as assets in receivership or a particular parcel of real estate. ⁸ The right will derive from the existence of separate insurance contracts containing Medical Payment and Uninsured Motorists provisions, and the recoveries of the 'class members' will neither be mutually dependent (as is typically the case in a 23(a)(1) or 'true' class action), or mutually exclusive (as is sometimes the case under a 23(a)(2) or 'hybrid' class action). ⁹ As the majority opinion indicates, this 'spurious' type of class action requires asking whether there exists some 'common question of law or fact' which supplies a sufficient community of interest that the advantages of joinder, for the parties and the court,...