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JOHN RAUCH v. UNITED INSTRUMENTS (11/30/87)

filed: November 30, 1987.

JOHN RAUCH, GERALD MIKLOSH, ABBEY ALAN KRAMER, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED
v.
UNITED INSTRUMENTS, INC. AND TOKYO AIRCRAFT INSTRUMENT CO., APPELLANTS



Appeal from the Order Entered May 20, 1986 in the Court of Common Pleas of Philadelphia County Civil Division, at No. 3854 January 1975.

COUNSEL

James D. Crawford, Philadelphia, for appellants.

Arthur A. Wolk, Philadelphia, for appellees.

Montemuro, Popovich and Cercone, JJ.

Author: Cercone

[ 368 Pa. Super. Page 295]

This is an appeal from an order certifying a class action governed by Pennsylvania law. The order being interlocutory, permission to appeal was granted to appellants by this court on September 15, 1986. Presented to us are two questions for review: (1) whether the motion for certification was untimely filed, and (2) whether the trial court erred in certifying a class when it failed to undertake an independent

[ 368 Pa. Super. Page 296]

    analysis of the criteria necessary to certify a class action. Our resolution of these issues follows a review of the material facts.

On January 24, 1975, appellees commenced an action against appellants alleging that altimeters manufactured by appellant, Tokyo Aircraft Instrument Company, and distributed by appellant, United Instruments, Inc., were defective. By a directive issued by the Federal Aviation Administration (FAA), appellants were required to replace or repair the altimeters to conform to FAA regulations. The cost for removal, repair and reinstallation of each altimeter was approximately $75.00. Appellees' complaint alleged causes of action in strict tort liability, negligence, breach of the implied warranties of merchantability and fitness for a particular purpose, and fraud.

Appellees had at the same time filed a similar action in the United States District Court for the Eastern District of Pennsylvania. This action was eventually dismissed on December 30, 1976 by the United States Court of Appeals for the Third Circuit on the ground that the Federal Aviation Act did not confer a private right of action for damages on the part of appellees and that the matter was one ordinarily of state concern and therefore governed by state law. See Rauch v. United Instruments, Inc., 548 F.2d 452 (3rd Cir.1976) rev'g 405 F.Supp. 435 (E.D.Pa.1975).

Subsequently, appellees filed an amended complaint in our state lower court on March 17, 1977 which contained class action allegations and a request for punitive damages in addition to their other claims for relief. Appellants' answer and new matter were filed on July 13, 1978 and the pleadings were closed on August 14, 1978. With the exception of two depositions taken in October, 1978, appellees took no discovery until July, 1982. During this period, appellants' key witness -- the vice president of United Instruments who was directly involved in the incidents giving rise to this action -- died in June, 1979.

On August 19, 1982, appellants filed a petition for non pros citing appellees' failure to ...


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