James F. Israel, Gerald W. Weaver, Bagley, Weaver & Sydor, R. Kenneth Willman, Pittsburgh, for appellants.
J. Tomlinson Fort, Reed, Smith, Shaw & McClay, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.
[ 241 Pa. Super. Page 197]
This case is before us on remand from the Supreme Court to decide whether appellants have met the minimum requirements for maintaining a class action.
Appellants brought a class action pursuant to Pa.R.Civ.P. 2230, alleging that appellee had failed to record the satisfaction of mortgages as required by statute, and that it was therefore liable to pay the statutory penalty.*fn1 Appellee, contending that the action was not a proper class action, filed preliminary objections under Pa.R.Civ.P. 1017(b)(5). The lower court sustained the objections, dismissing the class aspects of the action, but allowing the named plaintiffs to proceed in their individual capacities. An appeal from that order was taken to this court, which by per curiam order granted appellee's motion to quash the appeal and then denied appellants petition
[ 241 Pa. Super. Page 198]
for reconsideration.*fn2 The Supreme Court granted appellants' petition for allowance of appeal. Reversing, the Supreme Court held that a pre-trial order dismissing a class action is an appealable final order. The order quashing the appeal was therefore vacated and the case remanded to this court for a determination on the merits. Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975).
The propriety of a class action in Pennsylvania is controlled by Pa.R.Civ.P. 2230, which provides:
(a) If persons constituting a class are so numerous as to make it impracticable to join all as parties, any one or more of them who will adequately represent the interest of all may sue or be sued on behalf of all, but the judgment entered in such action shall not impose personal liability upon anyone not a party thereto.
(b) An action brought on behalf of a class shall not be dismissed, discontinued or compromised nor shall a voluntary non-suit be entered therein without the approval of the court in which the action is pending.
Application of this rule involves two subsidiary decisions: whether the action was properly initiated, and whether the procedure used to challenge the class was proper. These decisions made, the court may determine the propriety of the action as a class action.*fn3
I -- INITIATING THE CLASS ACTION
Our Supreme Court has recently set forth the minimum requirements for maintaining a class action:
(1) [the class representative] is a member of the class;
[ 241 Pa. Super. Page 199]
(2) the class consists of persons "so numerous as to make it impracticable to join all as parties;" (3) "he will adequately represent the interests of all class members;" (4) his interests are consonant with all members of the class; (5) there is a common issue shared by all class members which can be justly resolved in a single action; and (6) the relief sought is beneficial to all class members.
Klemow v. Time, Inc., 466 Pa. 189, , 352 A.2d 12, 15, 16 (1976) (Footnotes omitted).
Before the action moves beyond the pleading stage, the complaint must contain averments establishing that these requirements have been met. Klemow v. Time, Inc., supra.
In many cases this will not initially be possible, for the information regarding the class will be, as it was in this case, in the hands of the opposing party and therefore available to the class representative only by discovery following the commencement of the action.*fn4 To require that the minimum requirements set forth in Klemow must all be contained in the initial complaint would be to defeat many class actions at the outset. Therefore an abridged complaint may be filed to initiate a class action. The class representative will then be afforded a reasonable opportunity to amend the complaint to aver the class requirements. "[If] after [such] a reasonable opportunity, [he cannot] define and limit the ...