Sherrer v. Lamb

• Decision Date: 23 September 1983
• Parties: Benjamin Paul SHERRER, Individually And On Behalf Of a Class And Of Subclasses of Which He is a Member v. William H. LAMB. Appeal of Benjamin Paul SHERRER.
• Court: Pennsylvania Superior Court

Page 163

466 A.2d 163 319 Pa.Super. 290 Benjamin Paul SHERRER, Individually And On Behalf Of a Class
And Of Subclasses of Which He is a Member
v.
William H. LAMB.
Appeal of Benjamin Paul SHERRER. Superior Court of Pennsylvania. Argued April 12, 1983.
Filed Sept. 23, 1983.

Page 164

[319 Pa.Super. 292] Joseph P. Green, Jr., Asst. Public Defender, West Chester, for appellant.

Lee Russlander, Asst. Dist. Atty., West Chester, for Commonwealth, appellee.

Before HESTER, MONTEMURO and POPOVICH, JJ.

MONTEMURO, Judge:

This is an appeal from an order dismissing appellant's class action complaint in equity, on the basis of preliminary objections as to jurisdiction.

Appellant Sherrer was arrested and incarcerated on January 26, 1978, on the basis of an outstanding bench warrant which had been issued on October 31, 1974. The warrant had been issued in connection with an alleged burglary that had occurred in July of 1969.

On or about February 16, 1978, appellant, through his attorney, the Public Defender of Chester County, filed a petition for writ of habeas corpus alleging that he was illegally confined on the charges contained in indictment No. 76 September Term, 1973. A hearing on the petition for writ of habeas corpus was scheduled for March 8, 1978. On March 7, 1978, appellant filed a class action complaint in equity, which is the subject of this action. The habeas corpus hearing was held before the Honorable Thomas Pitt of the Court of Common Pleas, Chester County. By order dated March 8, 1978, Judge Pitt dismissed the charges against appellant and ordered that all outstanding warrants be quashed.

On or about April 10, 1978, appellee District Attorney filed preliminary objections to the complaint in equity, contending that the action was moot, and under separate heading challenging the class action allegations. On May 3, 1978, appellant filed an answer to these preliminary objections. After briefs were submitted, on June 3, 1980, the Honorable Leonard Sugerman of the Court of Common Pleas, Chester County, issued an order sustaining the preliminary[319 Pa.Super. 293] objections and dismissing the complaint. This appeal followed.

The process by which the court below reached its conclusion was as follows. As was stated earlier, appellee filed preliminary objections as to the class action allegations, and as to jurisdiction--specifically alleging that appellant's action was moot. The lower court, while stating that it was

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"not directly treating the issue of class action status", proceeded to do so anyway and concluded that the appellant had failed to move for class action certification under Pa.R.C.P. 1707. Accordingly, the lower court treated the matter as an action by the appellant in his individual capacity. It then went on to sustain appellee's preliminary objections as to jurisdiction, specifically concluding that appellant's action was moot.

Appellant makes two arguments on appeal.

He first argues that the court below erred in ruling that he had failed to move for class action certification, and in consequently treating the matter as an action in his individual capacity only. We agree.

The lower court based its ruling on the following. Pa.R.C.P. 1707(a) provides that, "within thirty (30) days after the pleadings are closed or within thirty (30) days after the last required pleading was due, the plaintiff shall move that the action be certified as a class action ...." The accompanying Explanatory Note states that, "A representative party who does not move promptly may be charged with failure to represent the class adequately and runs the risk of removal under Rule 1713(a)(5)."

As appellant had not yet moved for certification, the court below concluded that it should treat the action as an action in appellant's individual capacity only. Such reasoning is flawed. Appellant was under no obligation to move for certification at this stage of the proceedings. Surely, it...