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decided: January 29, 1976.



Richard A. Ash, Stephen P. McGuire, Herbert B. Newberg, Eric J. Fischer, Philadelphia, for appellant.

Philip H. Strubing, Philadelphia, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case.

Author: Roberts

[ 466 Pa. Page 192]


Appellant Lawrence Klemow was a subscriber to LIFE Magazine, formerly published by appellee Time, Inc. In December 1972 appellee announced that after the December 29, 1972 issue LIFE would no longer be published. On December 11, 1972, appellant instituted this class action in equity seeking an injunction to compel appellee to continue publishing LIFE. The preliminary

[ 466 Pa. Page 193]

    injunction was denied.*fn1 As finally amended, appellant's complaint sought damages alleging that Time's offers to those with unexpired subscriptions to LIFE of other magazines, books or refunds were inadequate.

Appellee filed preliminary objections*fn2 to the amended complaint contending, inter alia, that (1) appellant had an adequate remedy at law; and (2) the action was not properly a class action because "each member of the alleged class is severally entitled to recover money damages and . . . the amount to be recovered and the basis for determining that amount will vary among members of the alleged class."

During the fifteen months which elapsed before the trial court ruled on the preliminary objections the parties were directed to answer questions propounded sua sponte by the trial court, concerning the class, costs, and damages sought to be proved.*fn3 On June 28, 1974, the court filed a "decision" and order dismissing appellant's action as a class action, and dismissing the individual action without prejudice "since [appellant] has an adequate remedy at law." The opinion of the trial court, en banc, dismissing the action stated: (1) plaintiff cannot

[ 466 Pa. Page 194]

    recover punitive damages;*fn4 (2) "plaintiff cannot show that damages for himself and the class will be more than nominal;" and (3) "to handle this case as a class action here would not be judicially or economically feasible." We vacate the decree and remand for further proceedings.*fn5

The order of the trial court sustained the preliminary objection that appellant had an adequate remedy at law. Rule 1509 of the Pennsylvania Rules of Civil Procedure provides:

"(c) The objection of the existence of a full, complete and adequate non-statutory remedy at law shall be raised by preliminary objection. If the objection is sustained, the court shall certify the action to the law side of the court."

[ 466 Pa. Page 195]

In Shaffer v. Dooley, 452 Pa. 414, 308 A.2d 597 (1973), the Court held, in a unanimous opinion by Mr. Chief Justice Jones, that Rule 1509(c) requires that the chancellor certify an action to the law side of the court when a preliminary objection that there is an adequate non-statutory remedy at law is sustained. See Trimble Services, Inc. v. Franchise Realty Interstate Corp., 445 Pa. 333, 285 A.2d 113 (1971); Setlock v. Sutila, 444 Pa. 552, 282 A.2d 380 (1971); Holiday Lounge, Inc., v. Shaler Page 195} Enterprises Corp., 441 Pa. 201, 272 A.2d 175 (1971); Siegel v. Engstrom, 427 Pa. 381, 235 A.2d 365 (1967). Thus, even though we agree that this is not a proper case for equitable relief, it was error for trial court to dismiss the action instead of transferring the action to the law side of the court for disposition.

This appeal is not so easily resolved, however. Appellee concedes that the discontinuance of publication constituted a breach of the subscription contracts. By deciding on the undeveloped record that appellant could establish no more than a claim for nominal damages, the trial court went beyond what it could properly determine on preliminary objections.*fn6 Appellant alleges that the alternatives offered to subscribers, including pro-rata refunds, were inadequate. Though appellee might establish that its offer is adequate, the amount of damages in a breach of contract action can usually be determined only after discovery, and, if necessary, a trial.*fn7 Deciding at this juncture that appellant would be entitled to no more than nominal damages deprived appellant of the opportunity to prove his claim by the established procedures.*fn8 The case should proceed as an action at law for recovery of damages for breach of contract.

[ 466 Pa. Page 196]

Prior to the resolution of the damage issue, appellant must be allowed an opportunity to sustain his burden that the case is properly maintainable as a class action. Appellant should be afforded a reasonable opportunity to amend his complaint, and establish, if he can, that the case meets the minimum requirements for maintaining a class action: (1) he is a member of the class;*fn9 (2) the class consists of persons "so numerous as to make it impracticable to join all as parties;"*fn10 (3) "he will adequately represent the interests of all class members;"*fn11 (4) his interests are consonant with all members of the class;*fn12 (5) there is a common issue shared by all class members which can be justly resolved in a single action;*fn13 and (6) the relief sought is beneficial to all class members.*fn14 A party purporting to represent a class who cannot, after a reasonable opportunity, define and limit the class so that the matter will move to trial will be found not to have sustained the burden necessary to proceed as a class.

[ 466 Pa. Page 197]

Here it is conceivable that appellant could plead and establish that he can properly represent a class composed of all Pennsylvania residents*fn15 with similar unexpired LIFE subscriptions who have not settled their claims and have similar damage claims to be resolved.*fn16 Even if appellant cannot establish that the action is a proper class action, his individual damage action may still go forward.*fn17

Trial 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. We cannot agree, however, that the trial court may simply pronounce, as it did here that "to handle the case as a class action here would not be judicially or economically feasible."

[ 466 Pa. Page 198]

A cause of action has been stated with a damage claim to be resolved by our established litigation process. Appellant must be afforded an opportunity to proceed at law in an action for damages and to establish, if he can, that he may do so on behalf of a class.

Decree vacated. Case remanded for certification to the law side of the court and proceedings consistent with this opinion. Each party pay own costs.

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