J-A17042-14


                                   2015 PA Super 19

CONNIE W. KERN, ON BEHALF OF                      IN THE SUPERIOR COURT OF
HIMSELF AND ALL OTHERS SIMILARLY                        PENNSYLVANIA
SITUATED

                            Appellant

                       v.

LEHIGH VALLEY HOSPITAL, INC., A
PENNSYLVANIA CORPORATION LEHIGH
VALLEY   HOSPITAL-MUHLENBERG,    A
PENNSYLVANIA   CORPORATION,   AND
LEHIGH VALLEY HEALTH NETWORK, INC.
A    PENNSYLVANIA     CORPORATION,
TOGETHER    DOING    BUSINESS   AS
LEHIGH VALLEY HEALTH NETWORK, AND
DOES 1 THROUGH 25, INCLUSIVE

                            Appellee

                                                  No. 2843 EDA 2013
APPEAL OF: CONNIE W. KERN



                 Appeal from the Order entered August 14, 2013
                 In the Court of Common Pleas of Lehigh County
                   Civil Division at No: Case No. 2012-C-3438


BEFORE: GANTMAN, P.J., PANELLA, and STABILE, JJ.

OPINION BY STABILE, J.:                               FILED JANUARY 28, 2015

       Appellant/plaintiff Connie W. Kern appeals from the August 13, 2013,1

order of the Court of Common Pleas of Lehigh County (trial court), which

____________________________________________


1
  The docket indicates that the order was filed on August 14, 2013.
Accordingly, we have corrected the caption in this case.
J-A17042-14



denied    his    motion     for   class    certification   for   his   claims   against

Appellee/defendant Lehigh Valley Hospital, Inc.2 Upon review, we affirm.

       This facts and procedural history of this case are undisputed.               As

relayed by the trial court:
       The case . . . arises from the hospital visit of [Appellant] on
       June 9, 2011. On that date, [Appellant] was transported by
       ambulance to the emergency room at the Cedar Crest campus of
       [Lehigh Valley Hospital] [(]LVH[)] for injuries sustained at an
       amusement park. Prior to treatment, [Appellant] signed the
       [a]uthorization for [t]reatment document admitted into
       evidence. The heart of the issue raised by [Appellant] is based
       on the [p]ayment [g]uarantee paragraph of the [a]uthorization
       for [t]reatment document, where [Appellant] and other
       uninsured patients are not informed of the price they will pay
       versus what a privately insured or government insured patient
       would pay for the same services.          [Appellant] alleges that
       [Appellees] conceal that uninsured patients will be billed
       according to a “Chargemaster” list, which cannot be obtained by
       patients.
              On June 16, 2011, [Appellant] received a medical bill from
       LVH for $14,626.53. Although [Appellant] settled his claim
       against the amusement park for his injuries for $1,000, he never
       attempted to pay LVH any of the amount billed for services,
       despite several notices. On March 28, 2012, [Appellees] sent
       [Appellant] a [r]educed [c]ost of [c]are [a]pplication, which
       [Appellant] never completed, and [Appellant] never attempted to
       pay any amount of his medical bill.            On April 13, 2012,
       [Appellant] was served with a complaint for payment of debt
       owed for medical services which had been provided to him on
       June 9, 2011. On August 16, 2012, the original [c]omplaint was
       filed in the action at bar and on September 4, 2012 [Appellees]
       withdrew [their] action for the collection of [Appellant’s] debt.
              This case was briefly removed to Federal Court but was
       then returned to State Court by stipulation of the parties. On
       November 26, 2012, [Appellant] filed an [a]mended [c]omplaint
       alleging three counts; breach of contract, breach of the covenant
       of good faith and fair dealing, and violation of the Pennsylvania
       Unfair Trade Practices and Consumer Protection Law 73 P.S.

____________________________________________


2
  We note that an order refusing to certify a class is an appealable collateral
order. Hanson v. Federal Signal Corp., 679 A.2d 785, 788 (Pa. Super.
1996).



                                           -2-
J-A17042-14


       § 201-1, et seq. (“UTPCPL”).[3] Following preliminary objections
       by the [Appellees], this [trial court] issued an opinion on
       February 12, 2013 dismissing the breach of contract count
       because [Appellant’s] pleadings were based on the Uniform
       Commercial Code and this case involves a services contract. In
       that opinion, th[e] [trial court] also dismissed the breach of the
       covenant of good faith and fair dealing count because LVH was
       acting as a creditor at the time of the relevant allegations and,
       as a creditor, was entitled to collection of the owed debt.
       Finally, in that opinion, [the trial court] overruled the objection
       to the count for violation of the UTPCPL, holding that a private
       citizen has standing under the statute merely because of the
       harm of a pending lawsuit. Following that opinion, th[e] [court]
       established a schedule for the parties to submit briefs on the
       issue of certification of the class and for a hearing on the issue of
       certification. The parties elected to present [a joint stipulation of
       facts] and certain exhibits by stipulation in lieu of presenting
       testimony at the hearing. The hearing was held on July 12,
       2013 and both parties presented extensive argument.

Trial Court Opinion, 8/14/13, at 1-3 (internal record citation omitted).

Following the hearing, the trial court issued an order and opinion, denying

Appellant’s motion for class certification.       In so doing, the trial court

concluded that Appellant failed to meet two of the five prerequisites to

sustain a viable class action under Pa.R.C.P. No. 1702.4              Id. at 15.

____________________________________________


3
  Appellant also alleged in his amended complaint that “[LVH’s] conduct . . .
violates . . . [Section 2270.4(b)(5) of the] Fair Credit Extension Uniformity
Act (FCEUA), 73 P.S. § 2270.1 et seq., which prohibits the use of false,
deceptive or misleading representation or means with the collection of any
debt.” Amended Complaint, 11/26/12, at ¶ 59.
4
  Pennsylvania Rules of Civil Procedure 1701-1717 govern class action
lawsuits. Rule 1702 specifies the prerequisites to class certification:
              One or more members of a class may sue or be sued as
       representative parties on behalf of all members in a class action
       only if
       (1) the class is so numerous that joinder of all members is
       impracticable;
       (2) there are questions of law or fact common to the class;
(Footnote Continued Next Page)


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J-A17042-14



Specifically, the trial court held that, under Rule 1702(2), (5), Appellant

failed to establish his claims presented “questions of law or fact common to

the class” and the class action method of adjudication was “fair and

efficient.”5 Id. at 16.

      With respect to common questions of law or fact under Rule 1702(2),

the trial court examined a litany of appellate cases dealing with the element

of “reliance” concerning UTPCPL claims. Relying chiefly upon Weinberg v.

                       _______________________
(Footnote Continued)

      (3) the claims or defenses of the representative parties are
      typical of the claims or defenses of the class;
      (4) the representative parties will fairly and adequately assert
      and protect the interests of the class under the criteria set forth
      in Rule 1709; and
      (5) a class action provides a fair and efficient method for
      adjudication of the controversy under the criteria set forth in
      Rule 1708.
Pa.R.C.P. No. 1702. The plain language of the rule indicates that failure to
meet any one of the five prerequisites can be fatal to certification.
      At a class certification hearing, the burden of proof lies with the
      proponent; however, since the hearing is akin to a preliminary
      hearing, it is not a heavy burden. The proponent need only
      present evidence sufficient to make out a prima facie case from
      which the court can conclude that the five class certification
      requirements are met.         This will suffice unless the class
      opponent comes forward with contrary evidence; if there is an
      actual conflict on an essential fact, the proponent bears the risk
      of non-persuasion.
Clark v. Pfizer Inc., 990 A.2d 17, 24 (Pa. Super. 2010) (internal citation
and quotation marks omitted) (emphasis added), appeal denied, 13 A.3d
473 (Pa. 2010).
5
  The class action method of adjudication is fair and efficient if the “common
questions of law or fact predominate over any question affecting only
individual members.”    Liss & Marion, P.C. v. Recordex Acquisition
Corp., 983 A.2d 652, 663 (Pa. 2009) (citing Pa.R.C.P. No. 1708(a)(1))
(emphasis in original).



                                            -4-
J-A17042-14



Sun Co., 777 A.2d 442 (Pa. 2001) and Toy v. Metro. Life Ins. Co., 928

A.2d 186 (Pa. 2007), the court concluded that Appellant’s UTPCPL claim

“includes the element of individual reliance and therefore, does not meet the

commonality of fact or law prerequisites for a class action.” Id. at 7.

      With regard to the “fair and efficient method for adjudication”

requirement under Rule 1702(5), the trial court concluded that “individual

reliance would be the predominant factor over the common issues.” Id. at

11. The court compared the instant matter to Debbs v. Chrysler Corp.,

810 A.2d 137 (Pa. Super. 2002), appeal denied, 810 A.2d 137 (Pa. 2003).

In so doing, it reasoned:
      In Debbs, the Superior Court found that allegations that a car
      manufacturer did not disclose certain safety information, as
      applied to the UTPCPL, was a question predominated by
      individual reliance on that information. Debbs, 810 A.2d at 158.
      Different consumers would have different opinions about the
      materiality of the disclosure based on their personal aversion to
      risk. Id. Some consumers may seek to replace an unsafe
      airbag, some may get a new car, and some may weigh the risks
      and take no action, all of which are reasonable and depend on
      the individual. Id. This analysis is well-suited for the case at
      bar where [Appellant] is alleging the hospital concealed
      information about its billing practices in the emergency room. It
      is reasonable to conclude that some individuals with lesser
      injuries would seek another hospital, some individuals are
      desperate for treatment and would not consider the information,
      while even other individuals would not care. As in Debbs,
      individual reliance would be a predominate factor over common
      issues.

Id.   Accordingly, the trial court concluded that “common questions do not

predominate over any question affecting only individual members.” Id.

      Finally, to buttress its determination that class action would not be a

fair and efficient method of adjudication, the trial court concluded that

Appellant failed to meet its burden of proof under Rule 1708(a)(6), which

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J-A17042-14



provides “whether in view of the complexities of the issues or the expenses

of litigation the separate claims of individual class members are insufficient

in the amount to support separate actions.” Pa.R.C.P. No. 1708(a)(6). The

court found that Appellant “did not even attempt to prove” its burden in this

regard.    Trial Court Opinion, 8/14/13, at 14.      In particular, the trial court

found:
       [Appellant acknowledges he owes [Appellees] something for his
       services but claims the amount should be less than the
       Chargemaster amount. This [c]ourt has not been provided with
       the amounts which other prospective members were billed. It
       would seem reasonable to assume that the cost of medical
       treatment is fairly substantial and that most of the class
       members could have medical bills in the thousands if not
       hundreds of dollars. . . . In addition to members most likely
       having substantial bills, 73 P.S. § 201-9.2 permits the [c]ourt to
       award treble damages in private causes of action under the
       UTPCPL.

Id. at 13-14. The trial court concluded, “[b]ased on the potential damages

and lack of evidence provided by [Appellant], this [c]ourt finds that

individual members would have a sufficient incentive to bring separate

causes of action if a class is not certified.” Id.

       Ultimately, the trial court concluded that class certification would not

be appropriate because each class member would be required to prove

justifiable reliance. Id. at 16. Appellant appealed to this Court.6



____________________________________________


6
 The trial court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement
of errors. In lieu of filing a Pa.R.A.P. 1925(a) opinion, the trial court filed a
Rule 1925(a) statement, adopting its August 14, 2013, opinion.



                                           -6-
J-A17042-14



       On appeal,7 Appellant raises two issues for our review:
             1. Whether the trial court erred as a matter of law and
       abused its discretion when it concluded that a showing of class-
       wide, justifiable reliance was required for [Appellant’s] UTP[CPL]
       claim on behalf of a putative class of uninsured emergency room
       patients, thus precluding class certification, even though all class
       members (a) signed contracts with identical payment-obligation
       provisions and (b) were, like [Appellant], billed amounts based
       on excessive, discriminating rates[?]
             2. Whether the trial court’s determination that [Appellant]
       failed to show unfeasibility of individual actions because such
       actions are potentially lucrative rests on a clearly erroneous fact
       and thus constitutes an abuse of discretion[?]

Appellant’s Brief at 3-4. In his first argument, Appellant essentially invites

us to conclude that the trial court applied the wrong legal standard with

respect to justifiable reliance under the UTPCPL and, as a result, erred in its

determination under Rule 1702(2) and (5) to deny class certification.         We

thus begin our analysis with the central issue on appeal, i.e., whether

individual, justifiable reliance is required for private actions under Section

____________________________________________


7
   Our standard for review of a trial court decision concerning class
certification is well-established. “[C]lass certification is a mixed question of
law and fact.” Weismer v. Beech-Nut Nutrition Corp., 615 A.2d 428,
430 (Pa. Super. 1992) (citation omitted). A trial court’s order granting or
denying certification “will not be disturbed on appeal unless the court
neglected to consider the requirements of the rules governing class
certification [(i.e., Rules 1702 and 1708)], or unless the court abused its
discretion in applying [them].” Eisen v. Independence Blue Cross, 839
A.2d 369, 371 (Pa. Super. 2003) (quoting Baldassari v. Suburban Cable
TV Co., Inc., 808 A.2d 184, 189 (Pa. Super. 2002) (citations omitted)),
appeal denied, 857 A.2d 679 (Pa. 2004). “[I]t is the strong and oft-
repeated policy of this Commonwealth that in applying the rules for class
certification, decisions should be made liberally and in favor of maintaining a
class action.” Liss & Marion, P.C. v. Recordex Acquisition Corp., 937
A.2d 503, 508 (Pa. Super. 2007), aff’d, 983 A.2d 652 (Pa. 2009).



                                           -7-
J-A17042-14



201-9.2 of the UTPCPL.           We need not look far for the answer to this

question, as our Supreme Court has decided and reaffirmed that justifiable

reliance is an element of all private claims under the UTPCPL.

        In Weinberg, plaintiffs brought a class action against Sun Oil

Company (Sunoco) under the UTPCPL. The plaintiffs “alleged that Sunoco’s

advertisements induced consumers to purchase Ultra® when their vehicles

did not need the high level of octane the gasoline contained.” Weinberg,

777 A.2d at 443-44. The Supreme Court distinguished private actions under

Section 201-9.2 of the UTPCPL from actions brought by the Attorney General

in the name of the Commonwealth under Section 201-4 of the UTPCPL.8 In

so distinguishing, the court rejected this Court’s conclusion that the UTPCPL

did not require plaintiffs to prove the traditional elements of common law

fraud in all of their UTPCPL claims.9 Weinberg, 777 A.2d at 446-47. The


____________________________________________


8
    Section 201-4 provides:
        Whenever the Attorney General or a District Attorney has reason
        to believe that any person is using or is about to use any
        method, act or practice declared by section 3 of this act to be
        unlawful, and that proceedings would be in the public interest,
        he may bring an action in the name of the Commonwealth
        against such person to restrain by temporary or permanent
        injunction the use of such method, act or practice.
73 P.S. § 201-4.
9
  This Court had determined that although some of the claims plaintiffs
brought under Section 201-2(4) (substantive section) of the UTPCPL were
fraud-based and required proof of traditional elements of common law fraud,
the false advertisement claims under Section 201-2(4) were different and
did not require a showing of reliance. Weinberg, 777 A.2d 444-45.



                                           -8-
J-A17042-14



Supreme Court determined that this Court’s application of the UTPCPL was

erroneous because it was premised on the considerations that guide the

Attorney General when he/she is pursuing an enforcement action under

Section 201-4. Id. at 445-46 (“There is no authority which would permit a

private plaintiff to pursue an advertiser because an advertisement might

deceive members of the audience and might influence a purchasing decision

when the plaintiff himself was neither deceived nor influenced.”). The court,

noting that the UTPCPL’s underlying foundation is fraud prevention, held that

nothing in the legislative history of the UTPCPL ever intended statutory

language directed at consumer fraud to do away with the traditional

elements of reliance and causation in a private action under the UTPCPL.

Id. at 446.   The court, therefore, concluded that in private actions under

Section 201-9.2, the plaintiffs had to “allege reliance, that they purchased

Ultra® because they heard and believed Sunoco’s false advertising that

Ultra® would enhance engine performance.” Id.

     A short time later, in Yocca v. Pittsburgh Steelers Sports, Inc.,

854 A.2d 425 (Pa. 2004), the court was called upon to decide, in part,

whether plaintiffs, season ticket holders, failed to state a cause of action

under the UTPCPL for false representations alleged to have been made in

connection with the sale of stadium builder licenses.       In holding that

plaintiffs did not state a UTPCPL claim, the Supreme Court, citing

Weinberg, concluded that a plaintiff in a private action under the UTPCPL

“must show he justifiably relied on the defendant’s wrongful conduct or

                                    -9-
J-A17042-14



representation and that he suffered harm because of that reliance.” Yocca,

854 A.2d at 438. Because the plaintiffs had explicitly disclaimed reliance on

any representations under the terms of their sales contract, the court held

the plaintiffs could not state a claim based upon reliance under the UTPCPL.

Id. at 439.

        In Toy, the Supreme Court held that its decision in Weinberg did

indeed settle that justifiable reliance is an element of claims brought under

the UTPCPL. At their class certification hearing, the plaintiffs in Toy argued

individual class member need not show reliance on the defendant’s allegedly

deceptive ads to state a claim under the UTPCPL.      Toy, 928 A.2d at 202.

Citing again to its decision in Weinberg, the court held a plaintiff alleging

violations of the UTPCPL must prove justifiable reliance.

        Finally, in Schwartz v. Rockey, 932 A.2d 885 (Pa. 2007), in the

context of addressing whether a court’s discretion to treble damages under

the UTPCPL should be constrained by common law requirements associated

with punitive damages, the Supreme Court again noted that the justifiable

reliance criteria under the UTPCPL derives from the causation requirement

on the face of Section 201-9.2 that a plaintiff suffer an ascertainable loss as

a result of a defendant’s prohibited action.    Schwartz, 932 A.2d at 897,

n.16.

        Despite this plethora of precedent, Appellant contends Weinberg, and

all cases derivative of Weinberg, are not binding on cases involving post-

1996 deceptive conduct, an obvious reference to the year in which our

                                    - 10 -
J-A17042-14



Legislature amended the UTPCPL to include deceptive conduct as a violation

of the UTPCPL.      Instead, Appellant cites our decision in Grimes v. Enter.

Leasing Co. of Philadelphia, LLC, 66 A.3d 330 (Pa. Super. 2013), rev’d

on other grounds, __ A.3d __, 2014 WL 7088933 (Pa. 2014),10 and

dismisses our decision in DeArmitt v. New York Life Ins. Co., 73 A.3d

578 (Pa. Super. 2013), to argue a plaintiff need not allege justifiable reliance

in a private cause of action under the UTPCPL. We disagree.

       In   Grimes, we were confronted with the issue of whether the trial

court erred in finding a plaintiff could not prevail on her UTPCPL claim

because she did not allege a misrepresentation with respect to the deceptive

conduct alleged in her complaint.              Citing Bennett v. A.T. Masterpiece

Homes At Broadsprings, LLC, 40 A.3d 145 (Pa. Super. 2012),11 we held

the plaintiff need not allege a misrepresentation because any deceptive


____________________________________________


10
   Following argument in this case, our Supreme Court issued a per curiam
decision in Grimes on December 15, 2014, concluding that the appellee
failed to allege in her pleadings that she suffered an ascertainable loss
sufficient to support a verdict in her favor. Grimes, __ A.3d __, 2014 WL
7088933, at *3-4. Given its conclusion, the court declined to address
“whether a private plaintiff who alleges deceptive conduct under the
UTPCPL’s ‘catchall’ provision need not plead or prove justifiable reliance.”
Id. at *3 n.3.
11
   Bennett did not address the issue whether justifiable reliance was a
required element in a private action under the UTPCPL. Rather, Bennett
only decided the trial court correctly charged the jury on the relevant
standard for the UTPCPL catchall provision when it stated “misleading
conduct” could constitute a violation under the UTPCPL, and then properly
doubled the damage award.



                                          - 11 -
J-A17042-14



conduct alleged under the catchall provision of the UTPCPL would be

sufficient to state a private cause of action. This Court’s passing reference in

a footnote that plaintiff need not allege justifiable reliance was stated in the

context of explaining that plaintiff need not prove the elements of common

law fraud in an action that alleges deceptive conduct.           Within days of our

decision in Grimes, we decided DeArmitt, citing our Supreme Court’s

decision in Toy, where we reaffirmed a UTPCPL plaintiff still must prove

justifiable reliance and causation in a private action, because our legislature

never intended to do away with traditional common law elements of reliance

and causation in an UTPCPL action. Our decisions in Grimes and DeArmitt,

therefore, are not inconsistent with the decisions of our Supreme Court in

Weinberg and its progeny.

        We disagree with Appellant that Weinberg and its progeny are

inapplicable to the matter sub judice.             Importantly, those cases did not

address private causes of action under the UTPCPL post-1996 when

“deceptive conduct” was added as a violation to the catchall provision of the

UTPCPL.     Prior to 1996, the catchall provision at Section 201-2(4)(xvii) of

the UTPCPL12 only referenced “fraudulent conduct.”                 At the core of

Appellant’s argument is his belief the element of justifiable reliance only is a

product of fraudulent conduct. Appellant fails to recognize that the element


____________________________________________


12
     This provision was subsequently recodified at 73 P.S. § 201-2(4)(xxi).



                                          - 12 -
J-A17042-14



of justifiable reliance under the UTPCPL is the product of both (a) the

Legislature’s intent not to do away with traditional elements of reliance and

causation under the UTPCPL, and (b) the express provision under 201-9.2

that requires a private action plaintiff to prove an “ascertainable loss . . . as

a result of the use or employment by any person of a method, act or

practice declared unlawful” under Section 201-3 the UTPCPL. 73 P.S. § 201-

9.2(a) (emphasis added).         See also Weinberg, Schwartz, supra.

Accordingly, the element of justifiable reliance always was a part of private

actions under the statutory language of the UTPCPL. Amendments in 1996

that added deceptive conduct to the catchall provision simply included other

conduct that did not require proof of all elements of common-law fraud.

See Bennett, supra.

      Consistent with the foregoing cases, we conclude that the trial court

here was correct in its determination that justifiable reliance is an element of

private actions under Section 201-9.2 of the UTPCPL.        As such, Appellant

had to demonstrate that he and all prospective class members justifiably

relied on Appellee’s alleged violations of the UTPCPL and, as a result of those

alleged violations, suffered an ascertainable loss.     Thus, given its correct

application of the law, the trial court did not abuse its discretion in

determining that Appellant did not meet the second and fifth prerequisite of

Rule 1702.    The trial court determined that the requirement for justifiable

reliance as set forth in Section 201-9.2 of the UTPCPL defeats Rule 1702(2)’s

requirement of commonality of facts and law between prospective class

                                     - 13 -
J-A17042-14



members. Trial Court Opinion, 11/14/13, at 5-6. In addition, the trial court

determined that, under Rule 1702(5), class action would not be a fair and

efficient method of adjudication because individual reliance would be the

predominant factor over the common issues. Id. at 11.

       To the extent Appellant argues that the trial court erred in failing to

consider and evaluate his claim under Section 2270.4(b)(5)13 of the FCEUA

for purposes of class certification and reliance, see supra footnote 3, we

disagree.     The enforcement provision at Section 2270.5 of the FCEUA

provides “[i]f a debt collector or creditor engages in an unfair or deceptive

debt collection act or practice under this act, it shall constitute a violation of

the [UTPCPL].”      73 P.S. § 2270.5 (emphasis added).        The inclusion of a

violation of the FCEUA as also being a violation of the UTPCPL, evinces a

clear intent by our Legislature that FCEUA claims be treated in the same

manner as other private action claims under the UTPCPL. Because violations

of the UTPCPL can be filed as private actions, the inclusion of FECUA claims

as additional violations of the UTPCPL permits them to be brought as private

actions as well. See also 1 Pa. C.S.A. § 1932 (statutes in pari materia shall

be construed together, if possible, as one statute). As a private action under

Section 201.9.2 of the UTPCPL, FECUA claims therefore must plead that a


____________________________________________


13
  Appellant incorrectly provides the citation to this statute in his amended
complaint as Section 2270.4(5).       We have corrected the citation for
purposes of this discussion.



                                          - 14 -
J-A17042-14



plaintiff suffered an ascertainable loss as a result of a defendant’s prohibited

action. As stated earlier, this requires that justifiable reliance be pled. See

Schwartz, supra. Accordingly, at worst, it was harmless error for the trial

court not to have considered Appellant’s claim that justifiable reliance was

not required to be pled under his FECUA claim.

        Appellant next contends that, in determining whether class action is a

fair and efficient method of adjudication,14 the trial court abused its

discretion with respect to Rule 1708(a)(6). Specifically, Appellant challenges

the trial court’s conclusion that prospective class members most likely would

have substantial bills and, as a result, if successful in their potential actions

against Appellees, may benefit from the treble damages provision of the

UTPCPL (Section 201-9.2(a)). We, however, reject his argument as lacking

merit.    With respect to the question of whether the separate claims of

individual class members are insufficient in the amount to support separate

actions, Appellant’s own brief lends credence to the trial court’s conclusion.

We observe that, in his brief, Appellant points out that he submitted

evidence to the trial court demonstrating that the average hospital bill was


____________________________________________


14
     As noted above, Rule 1708(a)(6) provides:
        [i]n determining whether a class action is a fair and efficient
        method of adjudication . . . the court shall consider . . . whether
        in view of the complexities of the issues or the expenses of
        litigation the separate claims of individual class members are
        insufficient in the amount to support separate actions.
Pa.R.C.P. No. 1708(a)(6).



                                          - 15 -
J-A17042-14



$3,093.73 and that his own bill was $14,626.53. Appellant’s Reply Brief at

14. The trial court, however, determined that Appellant failed to satisfy the

requirements of Rule 1708(a)(6). Here, Appellant failed to present enough

evidence to demonstrate that the amount of the individual claims would be

insufficient to warrant grant of class certification. With respect to the trial

court’s observation that prospective class members may benefit from the

treble damages provision, we discern no error.     Section 201-9.2(a) of the

UTPCPL explicitly provides that “[t]he court may, in its discretion, award up

to three times the actual damages sustained.”          73 P.S. § 201-9.2(a)

(emphasis added).

      In sum, because we determine that the trial court employed the

proper legal standard regarding justifiable reliance under the private action

provision of the UTPCPL, we do not disturb its ruling on Appellant’s motion

for class certification under Rule 1702.

      Order affirmed.

      Judge Panella joins the opinion.

     President Judge Gantman concurs in the result.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/2015



                                     - 16 -
