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ABLIN v. BELL TELEPHONE COMPANY PENNSYLVANIA (09/25/81)

filed: September 25, 1981.

ABLIN, INC. T/A THRIFTY RENT-A-CAR, A CORPORATION, APPELLANT,
v.
BELL TELEPHONE COMPANY OF PENNSYLVANIA, A CORPORATION, AND THE REUBEN H. DONNELLEY CORPORATION, A CORPORATION



No. 1156 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 899 October Term, 1978.

COUNSEL

John C. Keir, Philadelphia, for appellant.

Harriet F. Withstandley, Philadelphia, for Bell, appellee.

Thomas E. Zemaitis, Philadelphia, for Reuben, appellee.

Spaeth, Brosky and Hoffman, JJ.

Author: Brosky

[ 291 Pa. Super. Page 42]

Ablin, Inc., t/a Thrifty Rent-A-Car (hereinafter "Ablin") filed a Complaint in Equity against both defendant-appellees, containing Class Action Allegations in accordance with Pa.R.C.P. 1704. Both appellees filed preliminary objections in the nature of a demurrer, which objections were denied. Thereafter the appellees filed answers, and the court below held an evidentiary hearing and heard argument on certification of the class. Certification was denied by order dated April 23, 1980.*fn1 This appeal followed.

The central issue for our determination is whether the class action proposed by Ablin satisfies the prerequisites set forth in Pa.R.C.P. 1702. The court below found that two of

[ 291 Pa. Super. Page 43]

    the five prerequisites, commonality*fn2 and typicality,*fn3 were not met. We reverse and remand.

[ 291 Pa. Super. Page ]

Ablin contends that the proposed class meets the requirements of "commonality" and "typicality." In its complaint, Ablin alleged that it was and is, Bell Telephone's usual business practice to accept subscriptions for classified advertising in its Yellow Pages, from subscribers who are allowed to pay for such advertising in equal monthly installments over a period of 12 months. When Ablin attempted to pay for its advertising in this manner, it was advised that it could not do so, because it was deemed a bad credit risk by Bell. Ablin was told it would have to pay in advance. Thereafter, Ablin paid the full amount of its advertising cost in advance, for the 12 month period. Ablin asserts that neither Bell nor Donnelley extended to it any commensurate rate discount or other benefit to compensate Ablin for requiring it to pay the full amount in advance. By failing or refusing to extend to Ablin such discount or other benefit, Ablin alleged, both appellees discriminated against it. After praying for equitable relief, Ablin stated its Class Action Allegations. The essence of its claim for class certification is contained in paragraph 23:

[ 291 Pa. Super. Page ]

23. Plaintiff is representative of and sues on behalf of the class of all individuals, partnerships and corporations which have been, as plaintiff has been, discriminated against contrary to law and/or statute, in that they have been required by defendants to pay for classified advertising in defendants' Yellow Pages in advance, contrary to defendants' usual business practice, and without being extended any commensurate discount or other benefit to compensate them for being required to make payments in advance.

In the succeeding allegations, Ablin sets out the requisite averments of fact in support of the prerequisites of Pa.R.C.P.

[ 291 Pa. Super. Page 441702]

and the criteria specified in Rules 1708 and 1709, in accordance with Pa.R.C.P. 1704.

The court below made the following findings of fact:

[ 291 Pa. Super. Page ]

After review of the Amended Complaint, the transcript of the testimony and oral argument on class certification, and the evidence elicited through written interrogatories, this Court concludes that two possible classes emerge. The record indicates, and Defendants do not deny, that at the most, the proposed class could number 36,800, the number of customers who were required to pay in advance during the year in question. However, this figure includes a group of 35,694 "national subscribers". National subscribers are businesses that advertise in directories both inside and outside of Pennsylvania. National subscribers do not contract with the Defendants for advertising. They contract through the National Yellow Pages Service Association which is an advertising agency. This agency, in turn, places advertisements with a representative of the Defendant, Reuben H. Donnelley Corporation, which is a member of the National Yellow Pages Service Association. Defendant, Reuben H. Donnelley Corporation, in turn places ads in local yellow page directories. National subscribers are always required to make advance payment for their advertising.

Edgar H. Simmons, Directory supervisor of sales and service for Bell Telephone Company, testified that there are no conditions under which a national advertiser does not pay in advance. He also testified that no concessions are given to national advertisers for prepayment and that the charges for ...


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