Piper, W. v. Elkhart Brass Mfg. Co. ( 2016 )


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    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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