J-A16026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOANNA JOHNSON, INDIVIDUALLY AND                 IN THE SUPERIOR COURT OF
ON BEHALF OF ALL OTHERS SIMILARLY                      PENNSYLVANIA
SITUATED,

                         Appellant

                    v.

ENERGY MANAGEMENT SERVICES AND
LYNNWOOD GARDENS AND NHP
MANAGEMENT CO.,

                         Appellees                    No. 3610 EDA 2014


                   Appeal from the Order of July 2, 2004
           In the Court of Common Pleas of Montgomery County
                    Civil Division at No(s): 1998-20864


BEFORE: LAZARUS, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED SEPTEMBER 03, 2015

      Appellant, Joanna Johnson, individually and on behalf of all others

similarly situated, appeals from the collateral order entered on July 2, 2004,

which partially decertified the class in this action.    The order was made

appealable by the resolution of the “collateral matter” on October 31, 2014,

when Appellant filed her praecipe to discontinue the only remaining certified

claims in the case. We affirm.

      The trial court ably explained the facts leading to this appeal:

        [Appellant] initiated this action on November 19, 1998[,
        naming as defendants] Grand Cru Property One Limited
        Partnership and Grand Cru Property One Limited Partnership
        t/a Lynnewood Gardens, NHP Management Company, and
        Energy Management Systems, Inc. After amendments to
        the original complaint, [Appellant] filed a Fourth Amended

*Retired Senior Judge assigned to the Superior Court.
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       Complaint on March 26, 1999. . . . [Within this complaint,
       Appellant] assert[ed] the following claims[:]      breach of
       contract (lease agreement); breach of warranty of
       habitability; breach of covenant of quiet enjoyment;
       negligence; negligence per se; breach of contract (property
       management agreement); breach of contract (EMS
       agreement); negligent misrepresentation and/or fraud[;
       and,] violation of the [Unfair Trade Practices and Consumer
       Protection Law (“UTPCPL”)].

       On April 3, 2000[, Appellant] filed a motion for class
       certification seeking to represent a class consisting of
       former and current tenants at Lynnewood Gardens
       Apartments. The claim underlying the class action arises
       from alleged electrical service shutoff or discontinuance by
       one or more of the defendants for reasons other than
       accident, emergency, repairs[,] or changes with respect to
       the dwelling units in the apartment complex.

       [The trial court] considered [Appellant’s motion for class
       certification] along with [the] defendants’ opposition
       thereto. . . . [The trial court] granted [Appellant’s] motion.
       On October 3, 2000[, the trial court] certified the class as to
       the Fourth Amended Complaint in its entirety. The class
       [was defined as:

          All present and former tenants and residents of dwelling
          units at the Lynnewood Gardens Apartments (a) who
          had electrical service shut off or discontinued by one or
          more of the defendants for any reason other than by
          accident, or for emergency, repairs, or changes, and/or
          (b) who paid a “late charge” with respect to electrical
          service to a dwelling unit at Lynnewood Gardens.

       Trial Court Order, 10/30/00, at 1].

       [At the conclusion of discovery, the] defendants filed
       motions for class decertification. . . . Oral argument [on the
       motion was] conducted on July 2, 2004. After consideration
       of defendants’ briefs, [Appellant’s] opposition thereto, and
       all other responses, [the trial court concluded] that changes
       in the litigation and in the law require[d] decertification of
       [all claims except for the contract claims. Therefore, on
       July 2, 2004, the trial court entered an order granting the

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        defendants’ motions for class decertification “except as to
        the contract claims.”]

        At the time of the original certification[, the] class action
        was “all about the wrongful turnoff of electricity to the
        Lynnewood Garden Apartments,” when electrical service
        was discontinued due to nonpayment. [Appellant’s Motion
        for Class Certification, 9/15/00, at 1. Appellant] relied on a
        Cheltenham Township ordinance, Cheltenham Code,
        Chapter 167 § 167-5.E, prohibiting electrical shut-off for
        non-payment.

        Since that time, [Appellant] developed her claims
        completely and thoroughly. [At the time the trial court
        granted the defendants’ motions for class decertification,
        Appellant sought] damages not only for the above described
        alleged improper shut-off and/or discontinuance of electrical
        service[,] but [Appellant also sought] damages in regard to
        “delinquent notices,” asserting that any class member who
        received a delinquent notice [had] been harmed. These
        notices in part asserted a late fee for the unpaid electric bill,
        and warned the tenant of possible electrical service shut-off
        in the event of non-payment of the electric bill together with
        the late fees. [Appellant claimed] that these [] notices
        misled the [respective] tenant [into believing that]
        defendants had [the] authority to shut-off [and] discontinue
        electrical service for nonpayment, thereby causing such a
        class member to pay “illegal” late fees. [The trial court thus
        concluded that, with respect to the fraud, negligence, and
        violation of the UTPCPL claims, the class did not satisfy the
        commonality requirement (because a fiduciary relationship
        did not exist between the parties, detrimental reliance
        varied from person to person, and individual questions
        predominated on the issue of causation) or the typicality
        requirement (because Appellant’s “overall position [was] not
        aligned with those of the class members”). Hence, the trial
        court entered its July 2, 2004 order, partially decertifying
        the class].

Trial Court Opinion, 8/12/04, at 1-4 (internal footnote omitted and some

internal capitalization, citations, and corrections omitted).




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      On October 31, 2014, with leave of court, Appellant discontinued her

only remaining certified class claims in the case.           This resolved the

“collateral matter” concerning the decertification of the class. See Jones v.

Faust, 852 A.2d 1201, 1203 (“the timeliness of appeals from collateral

orders depends not upon entry of the order itself, but upon resolution of the

collateral matter”). On November 7, 2014, Appellant filed a timely notice of

appeal from the July 2, 2004 collateral order, which partially decertified the

class. See Clark v. Pfizer, Inc., 990 A.2d 17, 23 n.3 (Pa. Super. 2010)

(holding that an order decertifying a class action is appealable as a collateral

order); but see Basile v. H&R Block, Inc., 52 A.3d 1202, 1206 n.4

(declaring: “[t]he Superior Court maintains that orders denying certification,

or decertifying a class action, are immediately appealable as collateral

orders. . . . The limited grant of allocatur in this case does not encompass

the question of whether the decertification order qualifies for as-of-right

interlocutory appellate review”) (internal citations omitted).

      Appellant raises the following two claims on appeal:

        1. Is a private consumer, such as [Appellant] and each
        member of her proposed class, required to prove reliance on
        a misrepresentation in order to make out a claim for alleged
        violations of the [UTPCPL] based upon (1) violations of the
        then-applicable Debt Collection Trade Practices Act
        (“DCTPA”), 37 Pa. Code §§ 303.1 et seq., promulgated
        pursuant to the UTPCPL and/or (2) violations of the
        UTPCPL’s “catch all” provision which prohibits “deceptive”
        conduct?

        2. In order to succeed on their claims under the UTPCPL and
        DCTPA, were [Appellant] and her class required to prove


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         “that each member received the delinquent notice, read the
         notice and believed the threat of electrical service shut off
         contained in the notice and that this reliance resulted in the
         payment of late fees”?

Appellant’s Brief at 6 (some internal capitalization and corrections omitted).

       We have reviewed the briefs of the parties, the relevant law, the

certified record, and the well-written opinions from the able trial judges. We

conclude that the claims raised in Appellant’s brief are meritless and that the

trial court’s opinions, filed on August 12, 2004 and December 5, 2012,

meticulously and accurately explain why Appellant’s claims fail. 1 Therefore,

we adopt the trial court’s opinions as our own. In any future filings with this

or any other court addressing this ruling, the filing party shall attach copies

of the trial court’s opinions.

       Order affirmed. Jurisdiction relinquished.




____________________________________________


1
  See also Kern v. Lehigh Valley Hosp., Inc., 108 A.3d 1281, 1289 (Pa.
Super. 2015) (“the element of justifiable reliance always was a part of
private actions under the statutory language of the UTPCPL”); Kern, 108
A.3d at 1290 (“[a]s a private action under Section 201–9.2 of the UTPCPL,
[Fair Credit Extension Uniformity Act (‘FCEUA’)] claims therefore must plead
that a plaintiff suffered an ascertainable loss as a result of a defendant’s
prohibited action. . . . [T]his requires that justifiable reliance be pled”)
(emphasis in original); Williams v. Empire Funding Corp., 227 F.R.D.
362, 366 n.2 (E.D.Pa. 2005) (“[t]he [FCEUA] . . . superseded the [DCTPA],
effective June 2000”).



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J-A16026-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/3/2015




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