No. 1003 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at GD 79-17172.
Henry G. Beamer, III, Pittsburgh, for appellants.
James T. Carney, Pittsburgh, for appellee.
Cercone, President Judge, and Brosky and Hoffman, JJ.
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Appellants contend that the lower court erred in: (1) applying the three-year statute of limitations of the Wage Payment and Collection Law*fn1 to their claim; and (2) denying their motion for class action certification. We agree and, accordingly, reverse and remand for proceedings consistent with this opinion.
Appellants filed a class action in assumpsit on June 26, 1979, seeking to collect payments for certain Sunday, holiday, and overtime work performed for appellee, United States Steel Corporation. Appellants are retired foremen and management personnel below the level of general supervisor, who allege they were eligible for but not paid the compensation. They seek to represent a class of similarly-situated employees at appellee's Edgar Thomson, Irvin, Vandergrift, and Homestead Works. After a class certification
[ 305 Pa. Super. Page 113]
hearing on July 23, 1980, the lower court granted appellee's motion for partial summary judgment, holding that appellants' claims were partially barred by a three-year statute of limitations, and denied appellants' motion for class certification. This appeal followed.*fn2
Appellants contend the lower court erred in applying the three-year statute of limitations of the Wage Payment and Collection Law (Wage Law) to their claim. We agree. The lower court applied this statute of limitations on the ground that the Wage Law is the exclusive remedy for the collection of "wages" as defined in that act. 43 P.S. §§ 260.2a, 260.9a. Our Court specifically rejected such an interpretation in the companion case of Todora v. Jones & Laughlin Steel Corp., 304 Pa. Superior Ct. 213, 450 A.2d 647 (1982). Consequently, appellants' action may properly proceed in assumpsit, subject to the appropriate statute of limitations. Accordingly, we reverse the lower court's application of the statute of limitations.
Appellants contend also that the lower court abused its discretion in denying their motion for class certification. We agree. The Pennsylvania Rules of Civil Procedure specify five requirements for class certification -- numerosity, commonality, typicality, adequacy of representation, and fairness and efficiency. Pa.R.Civ.P. 1702. They specify also certain criteria the court must consider in determining the last two of these requirements. Pa.R.Civ.P. 1708, 1709. A lower court's order concerning class certification is a mixed finding of law and fact and will not be disturbed on appeal unless the court failed to consider the requirements of the rules or abused its discretion in applying them. Janicik v. Prudential Insurance Co. of America, 305 Pa. Superior Ct. 109, 451 A.2d 445 (1982). In a class certification hearing the
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burden of proof is upon the party seeking such certification. Id. Accord, Klemow v. Time, Inc., 466 Pa. 189, 352 A.2d 12 (1975), cert. denied, 429 U.S. 828, 97 S.Ct. 86, 50 L.Ed.2d 91 (1976); Scott v. Adal, Corp., 276 Pa. Superior Ct. 459, 419 A.2d 548 (1980). The lower court held that the requirements of numerosity, commonality, and typicality were satisfied, but it denied certification on the grounds that appellants failed to prove the adequacy ...