231 Pa. Code § r. 1715 app. A
Rule 1715 deals with the entry and effect of a judgment entered before or after an order of certification.
Subdivision (a) contains the self-evident provision that, except by special order of the court, no judgment may be entered by default, on the pleadings or by summary judgment in favor of or against a class until the court has certified or refused to certify the action as a class action. It binds only the named parties.
Subdivision (b) contains the equally self-evident provision that, if a judgment is entered on preliminary objections before certification, it binds only the named parties. If the court finds that the complaint fails to state a cause of action and dismisses the complaint, it will not be technically res judicata as to other members of the class, since there has never been a determination by the court under Rule 1710(b) as to who constitutes the class. However, the principle of collateral estoppel, which now seems firmly embedded in Pennsylvania law, may be applicable if unnamed members of the class should thereafter bring their own action. As a practical matter, it seems unlikely that, if an appellate court has sustained the dismissal on the merits as in Hoolick v. Retreat State Hospital, 24 Pa. Cmwlth Ct. 218, 354 A.2d 609 (1976), other individual plaintiffs would commence further action.
Subdivision (c) provides that if the action has been certified as a class action, the judgment shall be binding on all members of the class except as otherwise directed by the court. The court should, of course, exclude from the effect of the judgment those members of the class who have opted out or who have refused to opt in where an opt-in order was entered under Rule 1711(b).
Subdivision (d) provides that in all cases the judgment must be framed by the court and must describe the class which is bound by the terms and the individual defendants against whom the judgment is entered. Judgment can, therefore, never be entered by the prothonotary as an office judgment.
In connection with judgments neither Rule 1715 nor the Federal Rules deal with the form of relief or the distribution of monetary recovery and the procedures to be followed.
The Uniform Class Action Act of 1976, hereinbefore referred to, does address itself to this problem in Section 15(c). This section provides for distribution of unclaimed awards either to one or more States as unclaimed property or to the defendant. If the unclaimed awards are sought by a defendant, the court must consider unjust enrichment, the wilfulness or lack of wilfulness on the part of the defendant, the impact of the award on the defendant, the pendency of other actions, any criminal sanctions imposed on the defendant and the loss suffered by the plaintiff class.
Awards to the State, with or without escheat, are obviously substantive in nature and may require amendment of the Escheat Act of August 9, 1971, 27 P. S. 1-1.
The method of claiming and distributing awards to individual class members, while procedural in nature, is a matter to be determined in each individual case. The court is given ample power under Rule 1713 to make every necessary or appropriate order controlling the course of the action. This would, of course, include distribution. Should experience under the proposed rules indicate that a procedural rule to regulate distribution would be desirable, it can be framed to meet any problems which may have arisen.
Rule 1715 does not deal with the so-called "fluid recovery" doctrine, in which damages are assessed on the basis of the harm to the entire class without regard to the separate individual claims of members. The damages recovered are applied under the doctrine of "cy pres" for other uses benefiting present or future members of the class. Illustrations are bus-rider overcharges and consumer purchasers of the same service or product. In the anti-trust antibiotics overcharge cases the court approved a settlement award of damages unclaimed by individual class members to various State claimants to be applied by them for health care purposes.
The issues involved are more than procedural. They involve public policy considerations of substantive law upon which the Committee expresses no opinion.
231 Pa. Code app A r. 1715