231 Pa. Code § r. 1708 app. A
Rule 1708 sets forth the criteria to be considered by the court in determining whether the class action is a fair and efficient method for adjudication of the controversy.
The Rule first sets out in subdivision (a) the criteria to be applied where only monetary recovery is sought. It then sets out in subdivision (b) the criteria to be applied where only equitable or declaratory relief is sought. Finally, in subdivision (c) it sets out the criteria to be applied when both monetary recovery and equitable relief are sought.
The criteria in subdivisions (1) to (5) of subdivision (a) are taken almost verbatim from Federal Rule 23(b)(1), (2) and (3), except that the requirement of "superiority" in class actions based on common questions of law or fact is omitted.
Two additional criteria are provided in subdivisions (6) and (7) of subdivision (a) which are not set forth in the Federal rule.
The first additional criterion permits the court to consider whether the complexity of the issues and the expenses of litigating separate claims of individual class members are of such magnitude as to exclude separate action by individual class members. This follows the Federal case law.
The second additional criterion permits the court to consider whether the damages 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, with its attendant burdens on the judicial system and judicial manpower.
The Uniform Class Action Act in Section 3(a) uses somewhat similar criteria requiring the court to consider whether in view of the complexities of the issues and the expenses of the litigation the claims of the individual class members are insufficient to afford significant relief to the members of the class. This criterion points up a policy question on which opinion between plaintiffs and defendants is sharply divided.
In many consumer class actions the individual amounts may be very small, but the aggregate may be large and maintenance of the class action might have a deterrent effect on future violations by the defendant. Also, if the defendant's conduct is egregious, compelling refunds, even of inconsequential amounts, may be desirable from a public policy point of view. Perhaps the remedy may be legislative rather than procedural.
When the action is brought for monetary recovery only, the court is to consider all seven of these criteria.
If, however, the action is brought for equitable or declaratory relief only, criteria (6) and (7) are obviously inapplicable. In that case, subdivision (b) directs the court to consider criteria (1) to (5) only plus an additional criterion which is inapplicable to monetary relief, namely, whether the conduct of the opposing party has been such as to make equitable or declaratory relief appropriate with respect to the class.
Finally, if both monetary recovery and equitable or declaratory relief are sought, the court is to consider criteria (1) to (7) of subdivision (a) and also the special criterion of subdivision (b).
231 Pa. Code app A r. 1708