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JAMES AFFLECK v. ST. BARNABAS (11/28/89)

decided: November 28, 1989.

JAMES AFFLECK, CLARA B. ARCHIBALD, AGNES AUSTIN, RUTH W. BLACKBURN, HOLBROOK G. BOTSET, MELDREW BOYLE, ELSIE BREEN, SARA S. BROWN, ELIZABETH S. BRUSH, ERWIN CAMPBELL, IVA CAMPBELL, THOMAS CAMPBELL, LOIS M. CHAMBERLAIN, JOHN CLELAND, E. CLIFFORD EBERT, EDNA N. EBERT, BETTY R. ELLIOTT, ROBERT ERWIN, JOHN GRABE, GRACE GRABE, BEATRICE GRATER, ELIZABETH B. GREGG, RUTH N. HARDY, JOSEPHINE T. HAUGHT, NAOMI V. HENRY, ALBERT HENRY, FERN L. HIGH, GRACE HOLMES, RUTH HOWARTH, DOROTHY JACKSON, WAYNE R. JAMISON, PAULINE JAMISON, JOHN LATIMER, HELEN LUTTON, OLIVE MCCLELLAND, MARTHA MCGREW, WILLIAM MOORHEAD, DOROTHY MOORHEAD, EVELYN O. NICHOLAS, AGNES R. PEACOCK, CARL A. RESHENBERG, CHRISTINE RHODES, CHARLES F. ROBINSON, ERNEST RUDER, MARTHA RUDER, JOHN G. SAMUELS, E.P. SCHAELCHLIN, NELLY F. SCHAELCHLIN, ADELE C. SCHOENBERGER, CATHERINE SHERMAN, ELIZABETH M. SILVIS, GLADYS SPENCER, ELIZABETH A. WEIXEL, GRACE WEIXEL, NORA C. WELTE, LESLIE C. WHITNEY AND MABEL WILLIAMSON, APPELLANTS,
v.
ST. BARNABAS, INC.



Appeal No. 1 W.D. Appeal Dkt. 1989, from Order of Superior Court entered February 29, 1988, at No. 1663 Pittsburgh 1986, Affirming Order of Court of Common Pleas of Allegheny County, Civil Division, entered October 1, 1986, at No. GD 85-12544. Prior report: 541 A.2d 1147.

COUNSEL

Kenneth P. Simon, Phillip S. Simon, Simon & Simon, Pittsburgh, for appellants.

Thomas E. Birsic, James A. Buddie, Kirkpatrick & Lockhart, Pittsburgh, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Papadakos, J., files a dissenting opinion. Larsen, J., dissents.

Author: Per Curiam

[ 523 Pa. Page 289]

Appeal dismissed as having been improvidently granted.

PAPADAKOS, Justice, dissenting.

The appeal in this case arises from a suit for breach of contract brought by Appellants, who are residents of a retirement community, against Appellee, the owner of the retirement community. In their Complaint, Appellants alleged that Appellee had breached its contract with them in that it unreasonably and unnecessarily increased the monthly

[ 523 Pa. Page 290]

    service charges (Count I); attempted to charge the residents for 1984 real estate taxes (Count II); and did not furnish the degree of emergency medical care as contracted for or as advertised (Count III).

Due to the fact that the potential claimants numbered between 250-500, Appellants decided to seek relief as a class rather than as individuals. After the close of the pleadings, a class certification hearing was conducted by the trial judge under Pa.R.C.P. 1707. The result of the hearing was: (1) the denial of class certification on all Counts; (2) the dismissal of Counts I and II of Appellants' complaint; (3) the certification of Count III as an individual action; (4) the certification of Appellee's Counterclaim as an individual action against the named representative Appellant; and (5) the transfer of Appellants' remaining cause of action under Count III to arbitration. The Superior Court affirmed.

Appellants raise two assignments of error. First, they contend that the trial court committed reversible error in dismissing Counts I and II of their Complaint on the merits. For authority, they place reliance upon Pa.R.C.P. 1707(c) and the explanatory notes thereto. In pertinent part this rule states:

(c) The hearing shall be limited to the Class Action Allegations. In determining whether to certify the action as a class action the court shall consider all relevant ...


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