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JACK GORDON SAMUELS v. HARVEY SMOCK (11/18/80)

decided: November 18, 1980.

JACK GORDON SAMUELS, AS A MEMBER OF A CLASS KNOWN AS UPPER DARBY TOWNSHIP POLICE, APPELLANT
v.
HARVEY SMOCK, JACK FELZER, J. EDMUND CONROY, LOUIS BALDINO AND PETER FLAMINI, APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County in the case of Jack Gordon Samuels, as a member of a class known as Upper Darby Township Police v. Harvey Smock, Jack Felzer, J. Edmund Conroy, Louis Baldino and Peter Flamini, No. 2815 of 1977.

COUNSEL

John G. McDougall, for appellant.

Alvin S. Ackerman, with him Robert J. Leitzell, for appellees.

Judges Blatt, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 54 Pa. Commw. Page 598]

The appellant, Jack Gordon Samuels, seeks review of an order of the Court of Common Pleas of Delaware County which denied class certification for his suit against the appellees, the trustees of the Upper Darby Police pension fund (trustees).

The appellant instituted litigation in March of 1977 alleging that the trustees had made unauthorized pension payments to certain retired policemen*fn1 and that the individual trustees, therefore, should make reimbursements, presumably to the fund, for the overpayments and also should be removed from office. The court below refused to certify this suit as a class action on the grounds that the appellant is not an adequate

[ 54 Pa. Commw. Page 599]

    representative of the proposed class of all active and retired Upper Darby policemen who share an interest in the administration of the pension fund and that a class action is not "the most appropriate, fairest or efficient" method to achieve the relief sought.

The prerequisites for a class action are established in Rule 1702 of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 1702.*fn2 The criteria for certification are provided for in Pa. R.C.P. No. 1708, which delineates the considerations as to whether or not a class action is a fair and efficient method of adjudication, and in Pa. R.C.P. No. 1709, which indicates the elements relevant to determine whether or not a litigant is a fair and adequate representative of the class.

We must agree with the court below that this case does not warrant certification as a class action. Initially, we note that the requirement of Pa. R.C.P. No. 1702(2), supra n. 2, that there be a common question of law and fact does not exist within the class which the appellant proposes, in that this suit would be adverse to the interests of those retired members of the Upper Darby police force who are presently receiving the higher pension payments and that it may also be

[ 54 Pa. Commw. Page 600]

    in the interest of those active members who hope to receive these ...


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