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RICHARD KLUSMAN ON BEHALF HIMSELF AND ALL OTHERS SIMILARLY SITUATED AND WILLIAM VAN HORN v. BUCKS COUNTY COURT COMMON PLEAS AND H. PAUL KESTER (09/07/89)

decided: September 7, 1989.

RICHARD KLUSMAN ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED AND WILLIAM VAN HORN, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILAR SITUATED, PETITIONERS,
v.
BUCKS COUNTY COURT OF COMMON PLEAS AND H. PAUL KESTER, COURT ADMINISTRATOR, RESPONDENTS



COMPLAINT (CLASS ACTION) (WITH NOTICE TO PLEAD).

COUNSEL

Neil A. Morris, I. David Pincus, Christopher D. Mannix, Sidkoff, Pincus & Green, P.C., Philadelphia, for petitioners.

Howland W. Abramson, Charles W. Johns, Administrative Office of Pa. Courts, Philadelphia, Peter A. Glascott, Asst. County Sol., Michael Klimpl, Doylestown, for respondents.

Narick, Senior Judge.

Author: Narick

[ 128 Pa. Commw. Page 618]

On October 31, 1984, Richard Klusman (Klusman) and William Van Horn (Van Horn)*fn1 (collectively, Petitioners) filed a class action complaint*fn2 against the Bucks County Court of Common Pleas (Bucks County Court) and H. Paul Kester (Kester), Court Administrator of Bucks County Court (collectively, Respondents), pursuant to this Court's original jurisdiction.*fn3 The Petitioners seek to represent a class composed of all parties who filed civil actions before a district justice in Bucks County from January 1, 1981

[ 128 Pa. Commw. Page 619]

    through December 31, 1988. For the reasons set forth below, we deny the Petitioners' motion to certify the class.

PROCEDURAL BACKGROUND

The action, which seeks declaratory and injunctive relief, alleges that Respondents imposed charges, in the nature of postage costs, for mailings through the Bucks County Minor Judiciary, in civil cases, which were allegedly in excess of the charges permitted by law.*fn4 This alleged overcharge, effective January 1, 1981, was based upon the mandate of Memorandum Order 80-52 that all district courts in Bucks County, Minor Judiciary, require a party filing a civil claim to pay a $6.00 postage charge for service to each party sued, $3.00 for a counterclaim, except for those proceeding in forma pauperis.*fn5 Klusman asserts his standing as a class representative based upon a November 2, 1983 counterclaim he filed with a district justice in Bucks County, where he paid the now-contested postage fee of $3.00.

Before an amended complaint was filed, the parties stipulated to join as Petitioners, Soloman Bronstein (Bronstein) and Marian Sherman (Sherman), t/a Doral Garden Associates and as a Respondent, the County of Bucks. On May 31, 1985, the pleadings closed.

On August 12, 1985, Petitioners moved for an extension of time in which to move for class certification, outside the time set forth in Pa.R.C.P. No. 1707(a).*fn6 The Court granted

[ 128 Pa. Commw. Page 620]

Petitioners' motion and ordered Petitioners to move for class certification within 45 days after completion of discovery.

Petitioners moved for summary judgment, which this Court denied,*fn7 and on October 13, 1987, we issued a rule upon Petitioners to show cause why the action should not be dismissed for want of prosecution. Such rule was discharged and on May 31, 1988, Petitioners filed the following status report:

1. On May 13, 1988, [Petitioners] received Answers to Petitioners' Interrogatories (Second Set) from [Respondent] County of Bucks.*fn8

2. [Petitioners] may be filing a Suggestion of Death for [Petitioner] Solomon Bronstein who recently passed away. [Petitioners'] counsel is contacting Mr. Bronstein's Estate.*fn9

3. [Petitioners] intend to file a Motion for Summary Judgment in the near future. (Emphasis added.)

On August 23, 1988 and October 31, 1988, Petitioners filed status reports identical to the May 31, 1988 report. On three occasions, Petitioners failed to comply with court ordered deadlines for filing and risked dismissal of their action.

Eventually, on March 28, 1989, Petitioners Klusman, Van Horn, the Estate, and Sherman filed their motion for class certification, which matter is presently before us. Each submitted an affidavit in support of the Motion for Class

[ 128 Pa. Commw. Page 621]

Certification.*fn10 At the June 7, 1989 certification hearing, the parties presented testimony and introduced various documents into evidence. Upon the entire record in this case and based on the credible evidence, the Court makes the following:

FINDINGS OF FACT

1. The contingent fee agreement, admitted over Petitioners' counsel's objection at the June 7, 1989 certification hearing, signed by Bronstein, before his death, and Sherman, stated that if no recovery were obtained, they would not be responsible "for payment of any fees, costs, or expenses to Neil A. Morris or Sidkoff, Pincus & Green, P.C." (Emphasis in original.)

2. The contingent fee agreement, Klusman admitted signing, stated that if no recovery were obtained, he would not be responsible "for payment of any fees, costs, or expenses to Neil A. Morris or Sidkoff, Pincus & Green, P.C."

3. The Estate's affidavit, states that "Petitioner's counsel, Sidkoff, Pincus & Green, P.C., has agreed to advance all costs necessary to prosecute this case to its final conclusion. The Estate understands that as a named Petitioner in this action, it remains ultimately liable for the costs."

4. The other named-Petitioners' affidavits each contain a similar paragraph stating that they remain ultimately liable for costs.

5. The contingent fee agreements signed by Petitioners are contradictory and inconsistent to statements made in their sworn affidavits.

6. The Estate's recovery may exceed a thousand dollars but, the Estate has no knowledge as to the potential cost to the Estate.

[ 128 Pa. Commw. Page 6227]

. The Estate does not demonstrate that it would adequately represent the absent class members.

8. Sherman's testimony lacks credibility and she would not adequately represent the ...


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