No. 59 E.D. App. Dkt. 1982, Appeal from the Order dated August 13, 1982, from the Commonwealth Court of Pennsylvania, No. 2508 C.D. 1980
Richard M. Abrams and Mitchell Kramer, Philadelphia, and Richard F. Stern, Jenkintown, for appellants.
Paul S. Roeder, Deputy Atty. Gen., for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., filed a dissenting opinion in which Hutchinson and Zappala, JJ., join.
Following the death of John McConnell in 1979, appellants William and Richard McConnell, co-executors of the Estate of John McConnell, filed with the Department of Revenue Board of Appeals a class action petition for a refund, pursuant to the Senior Citizens Rebate and Assistance Act, Act of March 11, 1971, P.L. 104, as amended, 72 P.S. §§ 4751-1 et seq. The Board of Appeals determined that it had no jurisdiction to resolve appellants' class action request, and denied appellants' request for a rebate. On appeal, the Board of Finance and Revenue sustained the action of the Board of Appeals.
Appellants then appealed to the Commonwealth Court by way of a Class Petition for Review which sought two types of relief: certification of this matter as a class action; and appellate review of the action of the Board of Finance and Revenue, including review of that board's failure to certify this matter as a class action.*fn1 Appellants then filed a motion to have the Commonwealth Court certify their suit as a class action. The Commonwealth Court denied the motion, stating
It is true that the Rules of Civil Procedure are applicable to pleadings in this Court which have been instituted in our original jurisdiction, Pa.R.A.P. 1517, but Petitioners are here in the appellate process. It is only where a class has been determined by the trial court or an agency
authorized to determine a class that the case may proceed as a class action on appeal. This is for the obvious reason that appellate courts have no mechanism by which a class can be determined with the exception of this Court when it is exercising its original jurisdiction.
Memorandum Opinion at 2-3 (emphasis in original). This direct appeal followed.*fn2
The sole question raised by appellants is whether the Commonwealth Court, in an action seeking review of a decision of the Board of Finance and Revenue, may entertain a request to certify an action as a class action.*fn3 We have concluded that the Commonwealth Court should ...