231 Pa. Code § r. 1712 app. A
This lengthy rule departs in important respects from the Federal rule, and provides a novel solution to the notice problem.
It provides that notice of the order of certification must be given to members of the class whether the action is for monetary recovery or for equitable or declaratory relief or for both. Federal Rule 23(c)(2) provides for individual notice of the certification to the members of the class only in 23(b)(3) actions, i.e., actions where the only ties between the class members are common questions of law or fact. The Federal rule does not require such notice in 23(b)(1) or (b)(2) classifications.
Rule 1712 relaxes the rigid requirement of personal individual notice required by Eisen v. Carlisle and Jacquelin , 417 U. S. 156, 40 L. Ed.2d 732, 94 S. Ct. 2140 (1974), in which the United States Supreme Court held that individual written notice required under 23(b)(3) to identifiable class members is mandatory and not discretionary and may not be waived by providing some other general form of notice. The decision was not based upon constitutional due process grounds but on judicial interpretation of the intent of the rule.
Notice in equitable or declaratory relief actions is discretionary under the Federal rules. Under Rule 1712 notice will be given in all types of class action irrespective of the form of relief sought.
Rule 1712(a) requires the court to include all the requirements of notice in its certification order. This includes (1) type and content of the notice, and (2) identity of the members of the class to be notified.
The court is given broad choices dependent on (1) extent and nature of the class, (2) relief requested, (3) cost of notification, and (4) possible prejudice to members not notified. The situation may be different in a pure injunction case and in a conventional action for monetary relief only.
As an administrative convenience, the court is given the privilege to designate a person other than the attorneys for the class to administer the notice procedure and to serve as a source of information to the members.
The mandate of Eisen that the plaintiff must pay the costs of the giving of the notice is retained, but the burden is minimized.
Rule 1712(b) further expands the court's discretionary power as to type of notice. Keeping in mind the requirements of due process, the court may require individual notice by personal service or by mail to all members who can be identified with reasonable effort or, in appropriate cases, notice through other methods which it determines are reasonably calculated to inform the members of the class of the pendency of the action. The latter may include newspaper notices, television, radio, posting and trade, union and public interest groups.
Where members of a union are members of the plaintiff class, inclusion of the notice in ordinary membership mailings or notice published in union publications regularly distributed to the members, or notices on the union employers' bulletin boards and other similar means of communication reasonably calculated to inform the members of the class are available. In equitable relief situations the use of news media, radio or television would suffice, depending on the circumstances and the reasonable probability that the class will be thereby informed. The Federal courts in 23(b)(2) class actions seeking equitable or declaratory relief have in many cases provided for these forms of notice.
Rule 1712(c) provides that the notice must be prepared by and given at the expense of the plaintiff. The Federal courts have differed as to whether the notice should come from the court or be sent by the plaintiff. Following the practice of many Federal courts 1712(c) requires submission of the proposed notice to the parties and to the court with leave to file objections thereto in ten days.
Rule 1712(c) also includes a novel provision, which authorizes the court to minimize the plaintiff's expenses by requiring the defendant to make available to the plaintiff use of defendant's established methods of communication with members of the class. For example, the notice could be put in the same envelope with monthly mailing of bills or other normal mailings of the defendant to the members of the class or by delivery by hand by an electric or gas meter reader or a milkman to the patrons of the defendant company where those methods of communication are used by the defendant in the ordinary course of its business. The plaintiff may, however, be required to pay any additional costs incurred by the defendant, but these would rarely be substantial.
Rule 1712(d) provides that, if a defendant asserts a counterclaim against a plaintiff class, the court may allocate the cost of a combined notice between the parties. Since the procedure in the action follows the normal procedure governing the form of action in which relief is sought, a counterclaim may be available to a defendant. If the counterclaim is asserted against the members of the plaintiff class as a class the court must certify it as a "defendant class action" in which the original defendant is plaintiff in the counterclaim and the original plaintiffs are a defendant class in the counterclaim. While such counterclaims will be rare, they are a possibility under appropriate circumstances.
231 Pa. Code app A r. 1712