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.
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
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
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 ...