J-A33026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM R. PIPER JR.                                 IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                             Appellant

                       v.

ELKHART BRASS MANUFACTURING
COMPANY, INC. AND FIRE TECH
AUTOMATIC SPRINKLER, INC.

                             Appellees                     No. 1018 EDA 2015

                      v.

TRIAD FIRE PROTECTION

                             Appellee

                  Appeal from the Order Entered March 5, 2015
              In the Court of Common Pleas of Philadelphia County
              Civil Division at No: February Term, 2013 No. 03348


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                                     FILED APRIL 22, 2016

        Appellant, William J. Piper, Jr., appeals from the March 5, 2015 trial

court order denying class certification.1 We affirm.

        On   May    29,     2012,   flooding   occurred   in    Center   City   One,   a

condominium building located at 1326 Spruce Street, Philadelphia. Center

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  An order denying class certification is an appealable collateral order under
Rule 313 of the Pennsylvania Rules of Appellate Procedure. McGrogan v.
First Commonwealth Bank, 74 A.3d 1063, 1078-79 (Pa. 2013).
J-A33026-15


City One is a mixed use commercial and residential building. The flooding

was a result of two separate failures in the building’s standpipes.     On the

sixth floor, a valve manufactured by Appellee, Elkhart Brass Manufacturing

Company, Inc. (“Elkhart”),2 failed, causing damage to fourteen residential

units on the fifth and sixth floors. On the thirtieth floor, a cap manufactured

by Appellee Firetech Automatic Sprinkler, Inc. (“Firetech”), failed, causing

damage to sixty residential units on floors seventeen through thirty.

       Appellant owned two units on the twenty-ninth floor of Center City One

and occupied one of them. On March 1, 2013, Appellant filed a class action

complaint. The complaint alleged causes of action in negligence and private

nuisance. On June 16, 2014, Appellant filed a motion for class certification.

Appellant’s proposed class of plaintiffs includes persons who suffered

property damage, economic loss, and/or the loss of use and enjoyment of

their condominium because of the flooding. The trial court conducted a class

certification hearing on January 14 and 15, 2015. On March 5, 2015, the

trial court entered the order on appeal denying class certification.

       Appellant presents two questions for our review:

          1. Did [Appellant] make a prima facie showing that the
       proposed class’s damages claims could be determined on a
       class-wide basis by introducing into evidence liability and expert
       opinions refuting [Appellees’] causation defense and determining
       the proposed class members’ economic damages could be
____________________________________________


2
  Elkhart joined Appellee Triad Fire Protection Engineering Corp. (“Triad”) as
an additional defendant. Triad allegedly maintained the failed pipe system.



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       accomplished on a class-wide basis (and who actually reviewed
       damages claims and opined that they were reasonable property
       damage estimates)?

           2. Where, as here, [Appellees] admitted at the class
       certification hearing that ‘if this case were bifurcated [between
       liability and damages] . . . then it would simply be an accounting
       procedure for the people to present their damage claims and
       make some kind of adjustment,’ did the trial court neglect to
       consider the requirements of the class action rules, or abuse its
       discretion in applying them, when it found that ‘damages to units
       below and above the 6th floor may be found to have different
       causes resulting in damages against different defendants?’

Appellant’s Brief at 8. We will consider these questions together.3

       A plaintiff seeking class certification must meet the criteria set forth in

Rule 1702 of the Pennsylvania Rules of Civil Procedure:

              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;

             (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.

____________________________________________


3
   Appellant fails to develop his second assertion of error in the argument
section of his brief in violation of Pa.R.A.P. 2119(a).



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Pa.R.C.P. 1702. In determining whether a class action is a fair and efficient

means of adjudication, the trial court must consider the factors set forth in

Rule 1708. Pa.R.C.P. 1708. Rule 1709 governs the trial court’s analysis of

whether     the   class   representatives     will    provide   fair    and    adequate

representation of the class. Pa.R.C.P. 1709.

      “Class certification presents a mixed question of law and fact.”

Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1, 15 (Pa. 2011),

cert. denied, 133 S. Ct. 51 (2012).         “[T]he policy of this Commonwealth

toward certification of class is both liberal and inclined toward maintaining

class actions[.]”   Eisen v. Indep. Blue Cross, 839 A.2d 369, 371 (Pa.

Super. 2003), appeal denied, 857 A.2d 679 (Pa. 2004).                  If the complaint

contains well-pled facts supporting a class action, the proponent must

present evidence in support of the pleadings at the certification hearing.

Janicik v. Prudential Ins. Co. of Am., 451 A.2d 451, 456 (Pa. Super.

1982).      “Because the requirements for class certification are closely

interrelated and overlapping, the class proponent need not prove separate

facts supporting each[.]”         Id.   “[R]ather, her burden is to sufficiently

establish those underlying facts from which the court can make the

necessary    conclusions    and    discretionary      determinations.”        Id.   The

proponent need only make out a prima facie showing that the five

requirements of Rule 1702 are satisfied.             Debbs v. Chrysler Corp., 810

A.2d 137, 153-54 (Pa. Super. 2002), appeal denied, 829 A.2d 311 (Pa.


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2003).    Prima facie evidence is “[e]vidence which, standing alone and

unexplained, would maintain the proposition and warrant the conclusion.”

Cosmas v. Bloomingdales Bros. 660 A.2d 83, 86 (Pa. Super. 1995)

(quoting Black’s Law Dictionary (6th ed. 1990)). In sum, the proponent of

the class does not face a heavy burden.        Cambanis v. Nationwide Ins.

Co., 501 A.2d 635, 637 (Pa. Super. 1985).

      Nonetheless, we will not disturb an order denying certification unless

the trial court abused its discretion.    Samuel-Bassett, 34 A.3d at 15. ”An

abuse of discretion will be found if the certifying court’s decision rests upon a

clearly erroneous finding of fact, an errant conclusion of law, or an improper

application of law to fact; the trial court must have exercised unreasonable

judgment, or based its decision on ill will, bias, or prejudice.”     Id.   “The

existence of evidence in the record that would support a result contrary to

that reached by the certifying court does not demonstrate an abuse of

discretion by that court.” Id.

      Instantly, the trial court found the class to be sufficiently numerous

(Rule 1702(1)) and that the class representatives and their counsel would

fairly and adequately represent the class (Rules 1702(4) and 1709). Those

findings are not presently at issue.        The trial court denied certification

because of insufficient commonality of questions of fact (Rule 1702(2)),

insufficient typicality among the various claims and defenses at issue (Rule

1702(3)), and because the court believed a class action was not a fair and


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efficient method of adjudicating the parties’ dispute (Rules 1702(5) and

1708).

      Commonality exists if “the class members’ legal grievances arise out of

the ‘same practice or course of conduct’ on the part of the class opponent.”

Janicik 451 A.2d at 457 (quoting Albin, Inc. v. Bell Telephone Co. of

Pennsylvania, 435 A.2d 208, 213 (Pa. Super. 1981)).             “The existence of

individual questions essential to a class member’s recovery is not necessarily

fatal to the class, and is contemplated by the rules.” Id. The Janicik Court

referenced Rule 1708, which provides that the common issues of law or fact

must predominate.      Id. (citing Pa.R.C.P. 1708(a)(1)).      “The standard for

showing   predominance      is   more   demanding      than   that   for   showing

commonality [. . .], but is not so strict as to vitiate Pennsylvania’s policy

favoring certification of class actions.” Samuel-Bassett, 34 A.3d at 23.

      The trial court addressed commonality and predominance as follows:

              The liability claims in this case can be broken into two
      groups, claims for apartments above the 6th floor and claims for
      apartments below. Plaintiff claims residential units on the 5 th
      and 6th floors suffered damages from water flowing in the
      proximity of Elkhart’s 6th floor PRV. They claim further that this
      failure also resulted in the failure of the 30th floor ‘riser end cap.’
      Elkhart claims that no such failure would have occurred if the
      standpipe system had been properly maintained by Triad, or
      properly designed and installed by Fire Tech. Elkhart further
      claims that all damages to units above the 6th floor occurred
      because of these intervening causes. Thus, the damages to
      units below and above the 6th floor may be found to have
      different causes resulting in damages against different
      defendants. As to liability these differences alone would not
      preclude certification, even though they involve claims of strict
      liability and negligence and different parties. Indeed, if there

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J-A33026-15


       was a possible certification for liability purposes only, this would
       be the perfect opportunity to avoid inconsistent liability verdicts
       and to determine significant issues in all the cases at one time.
       However, Pennsylvania law does not permit such limited
       certification.[4]

              As to damages the mere delineation of the types of
       damages claimed demonstrates the fact that commonality of
       claims has not been demonstrated. Although this action involves
       only a limited number of resident class members and limited
       number of units, and a limited number of class members who
       have rented their apartments and a limited number of insurance
       companies claiming subrogation rights, there is a vast array of
       personalized damages issues presented. It is alleged that water
       damage      caused    personal   property   damage      requiring
       replacement, personal property damage necessitating repair,
       loss of use occupancy damage, loss of rental income damage,
       loss due to insurance deductible damage, and loss to insurance
       company payments. Each item of damage must be individually
       proven at trial. The damages sustained by each class member
       are dramatically diverse and individual.    These diverse and
       individual damages may depend on whether the condominium
       unit was occupied or vacant at the time of the flood, whether it
       was occupied by the owner or someone other than the owner at
       the time of the flood, whether there was a financial loss due to
       the need for alternative housing and the extent of those loss
       [sic], when each unit was restored to habitability, what was the
       cost of the restoration, whether there was insurance coverage
       for any losses, what were the individualized insurance
____________________________________________


4
   The Dissent argues that since Pennsylvania Rule 1710 tracks its federal
counterpart, F.R.C.P. 23(c)(4), we should look to federal law to ascertain
whether Pennsylvania law permits certification for liability only. Dissenting
Memorandum, at 3-4. Citing a case from the Federal District Court of West
Virginia, the Dissent concludes the trial court could have considered a limited
certification here. Id.

We decline to address this issue because it is not properly before us.
Appellant argues that all issues in the case, including damages, are
amenable to class certification. Appellant has not argued for certification on
liability only. We therefore have no occasion to endorse or reject the trial
court’s views on the legality of certification for liability only.



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J-A33026-15


      deductibles, was the property damage to the structure of the
      interior walls, interior surfaces, floors, or fixtures, whether
      furniture or other personal property was damaged including
      whether there had been any prior damage, whether any repair
      or replacements made were reasonable necessary due to the
      flood and whether the amounts actually paid were reasonable.
      With respect to personal property loss, the condition at the time
      of loss may need to be evaluated. Indeed, all the different
      criteria which go into the evaluation of any individual water
      damage loss would be required for a proper assessment of
      damages as to every class member.

Trial Court Opinion, 6/11/15, at 9-10.

      Citing Cambanis, Appellant argues certification is appropriate even if

the class members stand to receive different amounts of damages.

Cambanis, 501 A.2d at 640 (“It is well-settled that questions as to the

amount of individual damages do not preclude a class action.”).                   The

Cambanis Court noted that class certification would be rare if it occurred

only where class members sustained identical damages.              Id.    The Court

further expounded on the broad discretion of trial courts to manage class

action litigation:

            Pennsylvania Rules of Civil Procedure 1710, 1713 and
      1714 grant the court extensive powers to manage the class
      action. These include the ability to limit the class action as to
      issues, divide the class into subclasses, approve settlements and
      monitor the conduct of the action. In [Janicik], this Court
      stated that: ‘The court should rely on the ingenuity and aid of
      counsel and upon its plenary authority to control the action to
      solve whatever management problems litigation may bring.’
      [Janicik, 451 A.2d at 462.] The determination of damages is an
      appropriate area for the exercise of these powers.

            A trial limited to the issue of liability is an efficient method
      of deciding [defendant’s] liability [. . .]. If the issue of liability is



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      decided in favor of the estates, then the question of the amounts
      of individual damages will be considered.

            Where      damages        may     be    determined   by  a
      mathematical or formula calculation and may be
      considered a mechanical task, then a class action may be
      proper. [Windham v. American Brands, Inc., 565 F.2d 59
      (4th Cir. 1977), cert. denied, 435 U.S. 968 (1978)]. [. . .] The
      amount of damages due to each estate would appear to be a
      straight-forward calculation once liability is shown. The damage
      issue is, therefore, suitable for class action treatment.

Id. at 640-41 (emphasis added).

      In Cambanis, this Court found class certification appropriate where

the varying amounts of damages were ascertainable from actuarial tables.

Id.   at   640.   Similarly   in   ABC   Sewer     Cleaning   Co.   v.   Bell   of

Pennsylvania, 438 A.2d 616 (Pa. Super. 1981), the plaintiffs alleged the

defendant artificially inflated the cost of advertising in the Yellow Pages.

This Court held a class action was permissible where the plaintiffs’ damages

awards would be calculable based upon a finding of the reasonable rate the

defendants could charge for advertising. Id. “The question of what rate is

reasonable for the defendants to charge will be answered objectively, one

time, for all members of the class.” Id. at 620.

             The only remaining question, if unreasonableness be
      proved, will be the objective amounts of damage to which
      individual class members are entitled. Presumably, the same
      proportion will apply to each class member. Even if there are
      differences in the amounts of damages, however, a class action
      is clearly not barred[.]

Id.




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       The foregoing cases are distinguishable from the instant matter. Here,

this is not a situation where Appellant’s damages can be “determined by a

mathematical or formula calculation and may be considered a mechanical

task.” Cambanis, 501 A.2d at 641.5 The trial court issued detailed findings

in support of its opinion that the class members’ damages will vary in kind

and amount, and the record supports the trial court’s findings.

       Appellant     references      another       Philadelphia   case,   Schall   v.

Windermere Court Apartments, Docket number 1247 of 2011, in which

the trial court certified a class action for an apartment fire. Appellant’s Brief

at 14-15.     Appellant asserts that its damages expert was able to assess

damages to the trial court’s satisfaction in Schall.               The Schall court

apparently did not issue a reported opinion, and even if it did, its opinion

would not bind other judges of the Philadelphia County Court of Common

Pleas or this Court.

       Assuming without deciding that Appellant’s expert’s report provided

some evidence to support certifying a class here, reversal still is not

warranted.      We have already explained that the existence of evidence

____________________________________________


5
    We do not hold, as the Dissent seems to suggest, that certification is
appropriate only where the damages calculation is purely formulaic. See
Dissenting Memorandum, at 2. We have no occasion to make so broad a
statement. We conclude only that the record supports the trial court’s
finding that damages are very diverse—in kind and in amount—among the
proposed class members, and that the trial court did not err in its application
of the law to the facts before us.



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potentially supporting a contrary result does not by itself create a reversible

abuse of discretion.      Samuel-Bassett, 34 A.3d at 15.        Rather, reversible

error occurs where the trial court fails to apply the class certification rules or

abuses its discretion in applying them. D’Amelio v. Blue Cross of Lehigh

Valley, 500 A.2d 1137, 1141 (Pa. Super. 1985), appeal denied, 522 A.2d

556 (Pa. 1986).          Here, the trial court’s opinion evinces a thorough

assessment of the certification rules, and the record supports its conclusion

that the class members’ potential recoveries rest on “dramatically diverse

and individual” circumstances.          Trial Court Opinion, 6/11/15, at 10.   We

therefore conclude the trial court did not abuse its discretion in finding

commonality and the predominance of common issues lacking.6

       The trial court relied on similar considerations to find, pursuant to

Pa.R.C.P. 1702(3) and (5) and 1708, that Appellant’s claims were not

sufficiently typical of the claims of the class members, and that a class

action would not be a fair and efficient means of adjudicating this matter.

Id. at 11-16.

             A challenge to the typicality requirement presumes
       that commonality has been established. The purpose of the
       typicality requirement is to ensure that the class representative’s
       overall position on the common issues is sufficiently aligned with
       that of the absent class members to ensure that her pursuit of
       her own interests will advance those of the proposed class
       members.
____________________________________________


6
    Our conclusion on commonality provides sufficient grounds to affirm the
trial court’s order.



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Samuel-Bassett, 34 A.3d at 30 (internal quotation marks omitted)

(emphasis added). Given our affirmance of the trial court on commonality,

Appellant’s argument as to typicality also fails.

      Rule 1708 requires the trial court to consider the following as to

fairness and efficiency of a class action:

            (1) whether common questions of law or fact predominate
      over any question affecting only individual members;

           (2) the size of the class and the difficulties likely to be
      encountered in the management of the action as a class action;

            (3) whether the prosecution of separate actions by or
      against individual members of the class would create a risk of

                  (i) inconsistent or varying adjudications with respect
            to individual members of the class which would confront
            the party opposing the class with incompatible standards
            of conduct;

                   (ii) adjudications with respect to individual members
            of the class which would as a practical matter be
            dispositive of the interests of other members not parties to
            the adjudications or substantially impair or impede their
            ability to protect their interests;

            (4) the extent and nature of any litigation already
      commenced by or against members of the class involving any of
      the same issues;

              (5) whether the particular forum is appropriate for the
      litigation of the claims of the entire class;

           (6) whether in view of the complexities of the issues or the
      expenses of litigation the separate claims of individual class
      members are insufficient in amount to support separate actions;

             (7) whether it is likely that the amount which may be
      recovered by individual class members will be so small in
      relation to the expense and effort of administering the action as
      not to justify a class action.


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Pa.R.C.P. 1708(a).

      In considering typicality, the trial court relied largely on the findings it

set forth in its commonality analysis. This is not unusual in a certification

case, as the class certification requirements often depend on overlapping

evidence.     Janicik, 451 A.2d at 456.          Concerning Rule 1708(a)(1),

governing the predominance of common questions of law or fact, the trial

court simply incorporated by reference its commonality analysis. Trial Court

Opinion, 6/11/15, at 13.      The trial court deemed the class unmanageable

under Rule 1708(a)(2) because of the highly individualized facts underlying

each damages claim. Id. at 14. The trial court also found that Appellant did

not offer sufficient evidence for the court to determine whether the separate

claims of individual class members were too small to support separate

actions, per rule 1708(a)(6). Id. at 15-16.

      In summary, the trial court provided a detailed analysis in support of

its conclusion that this case is distinguishable from cases such as Cambanis

and ABC Sewer, in which the courts held that varying amounts of class

member damages will not defeat a class action. Here, the class members’

damages vary in kind—property damage, lost rental income, loss of use and

enjoyment, etc.—and in amount. Each class member’s recovery will be fact

specific and not discernible by mechanical application of a formula.

      Based on all of the foregoing, we conclude the trial court acted within

its permissible discretion.


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     Order affirmed.

     President Judge Emeritus Ford Elliott joins the memorandum.

     Judge Strassburger files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/22/2016




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