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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 FIRETECH                 :
AUTOMATIC SPRINKLER, INC.                  :
                                           :
                Appellees                  :
                                           :
           v.                              :
                                           :
TRIAD FIRE PROTECTION                      :
                                           :
                Appellee                   : No. 1018 EDA 2015


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

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

DISSENTING MEMORANDUM BY STRASSBURGER, J.:FILED APRIL 22, 2016

      Because Pennsylvania law permits the certification of a class as to

liability only, I respectfully dissent and offer the following analysis.

      According to the trial court, “if there 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




* Retired Senior Judge assigned to the Superior Court.
J-A33026-15


cases at one time. However, Pennsylvania Law does not permit such limited

certification.” Trial Court Opinion, 7/11/2015, at 9.1

        The trial court offers no support for such an assertion.     The learned

Majority supports this proposition by pointing to this Court’s decision in

Cambanis v. Nationwide Insurance Company, 501 A.2d 635 (Pa. Super.

1985). In Cambanis, this Court considered the issue of whether disparate

damage calculations defeated the right to a class action in instances where

there was a single source of liability. This Court held that “[w]here damages

may be determined by a mathematical or formula calculation and may be

considered a mechanical task, then a class action may be proper.” Id. at

641.     The Majority here concludes that such mechanical calculations are

necessary for a case to be suitable for a class action. However, that was not

the rule set forth in Cambanis, and it is contrary to the law.

        Pennsylvania has adopted Pa.R.C.P. 1710, which provides in relevant

part:

        (c) When appropriate, in certifying, refusing to certify or
        revoking a certification of a class action the court may order that

              (1) the action be maintained as a class action limited
              to particular issues or forms of relief, or

              (2) a class be divided into subclasses and each
              subclass treated as a class for purposes of certifying,
              refusing to certify or revoking a certification and that
              the provisions of these rules be applied accordingly.

1
 Given the apparently complicated issues of liability and the relatively small
amounts of damages per condominium owner, denial of certification may
prove to be denial of any relief at all.


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J-A33026-15



Pa.R.C.P. 1710(c).

      In interpreting the aforementioned provision, we bear in mind that

“[w]here Pennsylvania’s class action rules are fashioned upon or taken

verbatim from the Federal Rule then federal case law is particularly

instructive but not binding.” Cambanis, 501 A.2d at n.4.          Federal Rule of

Civil Procedure 23(c)(4) provides that “[w]hen appropriate, an action may

be brought or maintained as a class action with respect to particular issues.”

Accordingly, we look to federal law with respect to certification.

            Consistent with the text of Rule 23(c)(4), one
      commentator recently observed as follows: “Although traditional
      claims brought under Rule 23(b) involve ‘an all-or-nothing
      decision to aggregate individual cases,’ Federal Rule of Civil
      Procedure 23(c)(4) allows litigants to resolve specific issues in
      a case on a class-wide basis.” Joseph Seiner, The Issue Class,
      56 B.C. L. Rev. 121, 132 (2015) (quoting Jon Romberg, Half A
      Loaf Is Predominant and Superior to None: Class
      Certification of Particular Issues Under Rule 23(c)(4)(A),
      2002 Utah L. Rev. 249, 251 n.96) (emphasis added).

            There is no impediment to certifying particular issues in a
      case as opposed to entire claims or defenses. That is the very
      approach urged by the authoritative Manual for Complex
      Litigation:

                    Rule 23(c)(4)(A) permits a class to be certified
            for specific issues or elements of claims raised in the
            litigation. [T]his provision may enable a court to
            achieve the economies ... for a portion of a case, the
            rest of which may either not qualify under Rule 23(a)
            [or be unmanageable for a class action….]
            Certification of an issues class is appropriate only if it
            permits fair presentation of the claims and defenses
            and materially advances the disposition of the
            litigation as a whole.



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J-A33026-15


                    An issues-class approach contemplates a
             bifurcated trial where the common issues are tried
             first, followed by individual trials on questions such
             as proximate causation and damages. A bifurcated
             trial must adequately present to the jury applicable
             defenses and be solely a class trial on liability.

        (Manual for Comp. Litig. § 21.24 (4th 2004).

              If otherwise compliant with Rule 23, the proposed liability
        issue certifications provide an orderly means to resolve some of
        the central issues in the case. That is an approach that is
        encouraged by our court of appeals. See In re A.H. Robins,
        880 F.2d 709, 740 (4th Cir. 1989) (noting the need to “take full
        advantage of the provision in [Rule 23(c)(4)] permitting class
        treatment of separate issues … to reduce the range of disputed
        issues” in complex litigation).

Good v. Am. Water Works Co., Inc., 310 F.R.D. 274, 295-96 (S.D.W. Va.

2015).

        Based on the foregoing, it is evident that a trial court may consider

certifying a class for a single issue only. Accordingly, I would hold the trial

court erred in concluding that “Pennsylvania Law does not permit such a

limited certification.” Trial Court Opinion, 7/11/2015, at 9.

        Thus, I would vacate the order of the trial court which denied class

certification and remand for the trial court to reconsider this issue bearing in

mind that it may be appropriate to permit this class action as to liability

only.




                                      -4-
J-A33026-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/22/2016




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