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decided: December 21, 1979.


Nos. 8, 9, 10, 11, 12 March Term, 1979, Appeal from Order of the Superior Court at Nos. 111, 122, 123, 124, 125 April Term, 1977, Dismissing Plaintiff's Appeal, Vacating the Judgments entered for Class Plaintiffs at No. 3642 July Term, 1972, Court of Common Pleas of Allegheny County and Remanding.


Michael P. Malakoff, Louise Reiber Malakoff, Berger, Kapetan, Malakoff & Meyers, Pittsburgh, for appellants.

George M. Weis, Weis & Weis, Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case.

Author: Roberts

[ 487 Pa. Page 276]


This appeal presents two issues regarding class actions. First, we are asked to decide whether a trial court order partially decertifying a class is, for the decertified party, a final judgment. We hold that the order was final with respect to the decertified appellant. Because he brought no appeal within 30 days of the trial court's order, appellant's challenge to the partial decertification is not properly before this Court. The second issue is whether the Superior Court properly vacated judgments in favor of four class members solely on the ground that appellant, the named class representative, had been decertified. We hold that the Superior Court erred in vacating the judgments. Accordingly, we reverse that portion of the order which reversed the trial court judgments in favor of four class members and we direct reinstatement of the judgments in favor of those parties.

While riding a mini bike, the son of appellant, Carl Alessandro, was struck by a car driven by an uninsured motorist. After an arbitration proceeding, appellant was awarded $5,000 under the provisions of his uninsured motorist coverage. Appellee, State Farm, presented appellant a check for $5,000 in satisfaction of the award and sought a release and discharge from all other claims arising from the accident. Appellant did not accept payment, claiming that his insurance

[ 487 Pa. Page 277]

    policy provided for the insurer's payment of medical bills in addition to any arbitration award. State Farm refused to pay this additional claim.

Appellant then filed a complaint on behalf of himself and a class of persons similarly situated, challenging the practice of setting off medical payments from an arbitration award.*fn1 The trial court overruled State Farm's preliminary objections challenging the basis of the class.*fn2 Following State Farm's answer, appellant requested the names of other potential class members.*fn3 The trial court sustained State Farm's objections to this request and ordered the entire class decertified. Appellant filed a petition for reconsideration of the order. After argument, the trial court vacated the order and reinstated the class action.*fn4

[ 487 Pa. Page 278]

Upon State Farm's subsequent motion for partial decertification, the trial court limited the class to persons who had obtained arbitration awards of $10,000 or more. Appellant thus was precluded from recovering in this action. The trial court, however, permitted appellant to continue as the named representative of the class.

Nine class members remained after partial decertification.*fn5 These individuals were notified of the action by mail as required by former Pa.R.C.P. 2230.*fn6 After stipulation of the facts, both parties moved for summary judgment. The trial court granted summary judgment in favor of four class members. Summary judgment was granted in favor of State Farm with respect to the other five, from which no appeal was taken.

On appeal to the Superior Court, appellant contended that the trial court's partial decertification of the class was erroneous. State Farm cross-appealed from each of the judgments in favor of the four successful class members. The Superior Court held that the decertification order was final and that appellant's failure to appeal within 30 days resulted in a waiver of the claim.*fn7 On the four appeals brought by State Farm, the Superior Court vacated the judgments, holding that appellant was unable to represent the class adequately after decertification. Alessandro v. State Farm Mutual Automobile Ins. Co., 259 Pa. Super. 571,

[ 487 Pa. Page 279393]

A.2d 973 (1978) (Price, J., dissenting, with three judges not participating). We granted allocatur.


When appellant was decertified, the trial court's order was final and ripe for appeal. The order put appellant "out of court," and terminated the litigation for him. See Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975). Appellant's failure to timely appeal the decertification resulted in waiver of his right to appeal. We therefore affirm that portion of the order of the Superior Court which held that appellant's appeal from the partial decertification order was untimely.

This question is analogous to cases involving the joinder of parties. Rules of joinder, like those involving class actions, promote judicial economy by litigating common questions involving multiple parties in a single action.*fn8 If one of the joined parties is dismissed from the action, the litigation is at an end for that litigant. Failure to appeal timely from the dismissal results in a waiver of that claim.*fn9

[ 487 Pa. Page 280]

Appellant, in challenging the Superior Court's holding that he waived appeal on the issue of partial decertification, suggests that we draw upon the federal decisions restricting the appealability of class certification decisions. See e. g., Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978). This Court in Bell, however, when presented the opportunity to adopt a similar position, refused to so hold. Rather, we permit a final adjudication on the question of class membership prior to trial on the merits. Appellant also suggests that Bell applies only when the trial court completely dismisses the entire class. We disagree. The consideration in Bell with respect to finality is equally applicable here.*fn10 It is the effect of the order which must be considered when determining finality. Cf. Pa. Social Services Local 668 v. P.L.R.B., 481 Pa. 81, 392 A.2d 256 (1978) (administrative dismissal final because it effectively foreclosed Union from relief under Act 195); Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977) (order sustaining preliminary objections, dismissing complaint held final); Commonwealth v. Wheeling-Pittsburgh Steel Co., 473 Pa. 432, 375 A.2d 320 (1977) (order precluding presentations of affirmative defense held final); T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977) (dismissal of plaintiff's case final even though defendant's counter-claim yet to be tried);

[ 487 Pa. Page 281]

    that which a "proper" representative would have brought, or that the amount of judgment would have been different if the class were "properly" represented.

Were we to approve the Superior Court's vacation of judgments on the ground of improper representation, we would be granting relief on a record devoid of prejudice to appellee. Our practice is otherwise. This Court has long declined to reverse judgments on grounds which in no respect impair the merits of the litigation. See e. g., Minkin v. Minkin, 336 Pa. 49, 7 A.2d 461 (1939) (appellate court will view caption as amended where no new cause of action will be introduced). See generally, 9 Standard Pennsylvania Practice Ch. 40 § 190 (rev. ed. 1962). Indeed, "[a] party will not be heard to complain of error which is favorable to himself or which is injurious only to the adverse party." Id., Ch. 40 § 45 at p. 357. Accordingly, it must be concluded that there is no basis here upon which to disturb the plaintiffs' judgments.*fn11

[ 487 Pa. Page 283]

Accordingly, we reverse that portion of the Superior Court order which reversed the trial court and we direct the reinstatement of the trial court judgments in favor of the four class members.

Order of the Superior Court affirmed in No. 8 March Term, 1979. Order of the Superior Court reversed and the trial court judgments reinstated in Nos. 9, 10, 11 and 12 March Term, 1979.

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