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PATRICK LEE CAVANAUGH v. ALLEGHENY LUDLUM STEEL CORPORATION (06/29/87)

filed: June 29, 1987.

PATRICK LEE CAVANAUGH, INDIVIDUALLY AND AS CLASS ACTION REPRESENTATIVE, APPELLANT,
v.
ALLEGHENY LUDLUM STEEL CORPORATION, APPELLEE, V. BETZ LABORATORIES, APPELLEE



Appeal from the Order Entered May 23, 1986, in the Court of Common Pleas Allegheny County, Civil Division, at No. GD85-22205.

COUNSEL

Seymour Kurland, Philadelphia, for appellant.

Robert B. Sommer, Pittsburgh, for appellees.

Cavanaugh, Popovich, and Montgomery, JJ.

Author: Montgomery

[ 364 Pa. Super. Page 438]

This is an appeal from an order denying class certification. The Plaintiff-Appellant contends that the lower court abused its discretion in denying a request for a continuance of the class certification hearing date. Further, the Plaintiff

[ 364 Pa. Super. Page 439]

    contends that the action should have been certified as a class action because sufficient evidence was presented to satisfy the class action requirements of the Pennsylvania Rules of Civil Procedure. After careful review, we conclude that the lower court erred in denying the request for a continuance of the certification hearing under the circumstances of the instant case, and will remand for further consideration by the lower court of whether or not a certification of the case as a class action is appropriate in light of prevailing law.

Briefly stated, the record indicates that in late December, 1985, public authorities advised consumers, including Plaintiff-Appellant Patrick Lee Cavanaugh, not to consume water supplied to their homes through the Tarentum and Brackenridge Water Plants. The warning was allegedly based upon a contamination of the water supply by a chemical known as "Slimicide". It was alleged in the Complaint that the Defendant-Appellee, Allegheny Ludlum Steel Corporation (hereinafter referred to as "Allegheny"), had discharged the Slimicide from its plant in Brackenridge, Allegheny County, Pennsylvania, into the Allegheny River near the public water intake pipes which led to the two water plants.

The Appellant's action was instituted as a class action on December 30, 1985, only a few days after the contamination warning. After Allegheny answered the Complaint, it joined Appellee Betz Laboratories, Inc. (hereinafter referred to as "Betz") as an Additional Defendant. It did so on the basis that Betz, as the manufacturer and seller of the Slimicide product, had breached expressed and implied warranties. Betz did not respond to the Complaint Against Additional Defendant as a result of an open-ended agreement for an extension of time between itself and Allegheny.

Following the filing of this action, the parties engaged in depositions and other discovery. Inter alia, the Plaintiff-Appellant served interrogatories and document requests upon both Allegheny and Betz, seeking information concerning the nature and properties of the chemicals allegedly

[ 364 Pa. Super. Page 440]

    discharged, as well as the timing and the manner of the discharges. On May 7, 1986, prior to the completion of all discovery, the lower court, sua sponte, issued an order scheduling a hearing for May 23, 1986, concerning the question ...


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