Bucci v. Cunard Line Ltd.

35 Pa. D. & C.3d 228, 1985 Pa. Dist. & Cnty. Dec. LEXIS 394
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMay 13, 1985
Docketno. 5420 June term, 1984
StatusPublished
Cited by3 cases

This text of 35 Pa. D. & C.3d 228 (Bucci v. Cunard Line Ltd.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bucci v. Cunard Line Ltd., 35 Pa. D. & C.3d 228, 1985 Pa. Dist. & Cnty. Dec. LEXIS 394 (Pa. Super. Ct. 1985).

Opinion

WRIGHT, J.,

This is a class action brought on behalf of fare-paying passengers aboard the S.S. Queen Elizabeth II during a cruise which departed on May 12, 1984 from Philadelphia and returned to Philadelphia on May 20, 1984. Plaintiff alleges that as a result of a power failure which occurred during the cruise, passengers were forced to do without food, water, toilet facilities, air conditioning and other services. The cruise was to include stops in Bermuda, St. Thomas and St. Maarten. However, due to this power failure, the stop in St. Maarten was eliminated. Plaintiff asserts that the power failure was caused by the negligence and carelessness of Cunard, the unsafe and unseaworthy condition of the S.S. Queen Elizabeth II and was in breach of the passage contract and accompanying representations concerning the nature and quality of the cruise. Cunard, however, has denied these claims and asserts that the breakdown was unforeseen, unfortunate, not due to any negligence or carelessness on its part, or any unseaworthiness of its vessel and was not a breach [230]*230of its passage contracts with the passengers. Prior to the end of the cruise, Cunard offered the passengers either a 15 percent refund of their fare or a 30 percent voyage credit on future cruises. Of over 1300 fare-paying passengers aboard, more than 900 have accepted this offer.

A motion for certification of this matter as a class action has been filed under Pa.R.C.P. 1707(a). The pleadings have now been closed and discovery with respect to the class action issues has been completed. The motion for class certification has been thoroughly briefed, and both parties having waived their right to oral argument, the issue is now ripe for disposition. After consideration of the pleadings, depositions, affidavits and other evidence and the applicable statutory and case law, the court makes the following

FINDINGS OF FACT

1. This action arises out of a cruise on the S.S. Queen Elizabeth II which departed from Philadelphia on May 12, 1984 and returned to Philadelphia on May 20, 1984.

2. As a result of a power failure which occurred on May 16, 1984, plaintiff and many other passengers suffered many inconveniences and displeasure, including the absence or limitation of food, water, toilet facilities, air conditioning and other fundamental services.

3. The cruise was to include stops in Bermuda, St. Thomas and St. Maarten.

4. The St. Maarten stop was eliminated due to the power failure.

5. Prior to the end of the cruise, Cunard offered passengers either a 15 percent refund of their fare or a 30 percent voyage credit on future cruises.

[231]*2316. There were approximately 1324 fare-paying passengers aboard the cruise ship.

7. Approximately 943 fare-paying passengers have accepted this offer and signed releases relinquishing their rights to any future claims against Cunard.

8. Approximately 381 fare-paying passengers have not settled their claims, i.e. these passengers have not signed a release of any kind.

DISCUSSION

The sole issue before this court is whether this case satisfies the prerequisites for certification as stated in Pa.R.C.P. 1702. Inquiry into the merits of this action are prohibited. Pincus v. Mutual Assurance Co., 457 Pa. 94, 321 A.2d 906 (1974); Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 319 A.2d 677 (1974). Furthermore, a “decision in favor of maintaining a class action should be liberally made”. Cox v. City of Chester, 76 Pa. Commw. 446, 464 A. 2d 613 (1983) citing Bell v. Beneficial Consumer Discount Co., 241 Pa. Super. 192, 360 A.2d 681 (1976).

Pa. Rule of Civil Procedure sets forth five prerequisites to the maintenance of a class action. First, the moving party must prove numerosity. Next, there must be a common question of fact or law. The representative plaintiff must then prove that her claim is typical of the class. Also, the class must be adequately represented. Finally, the method of class action must be a fair and efficient way to resolve the controversy.

We first examine the numerosity requirement. Rule 1702(1) requires that the class be so numerous that joinder of all members is impracticable. In determining numerosity, it is not necessary to prove [232]*232the exact number in the class if it is defined with some precision and there appears to be more members than it would be practicable to join. Janick v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 451 A.2d 451 (1982).

In this case there were 1324 fare-paying passengers aboard the vessel. Approximately 943 fare-paying passengers have settled their claims. This leaves approximately 381 fare-paying passengers who have not settled their claims. This number is more than sufficient to satisfy the numerosity requirement of Rule 1702(1). See Metropolitan Hospital v. Commonwealth, Dept. of Public Welfare, 21 Pa. Commw. 116, 343 A.2d 695 (1975) (330 persons sufficient); Floyd v. Philadelphia (No. 2) 8 D.&C. 3d 380 (1978) (194 persons sufficient); Jones v. Zimmerman, 11 Leb. Cty. L.J. 391 (1967) (82 persons sufficient).

Defendants argue, however, that since the court cannot exercise jurisdiction over passengers who were not residents of Pennsylvania, the numerosity requirement has not been met. 1 This is completely contrary to the court’s ruling in Janick, supra. The court stated:

“Our Supreme Court has held that a common pleas court may exercise jurisdiction over absent class members who are Pennsylvania residents, as well as those non-residents who submit themselves to its jurisdiction”.

Defendants further assert that because only one formal action has been commenced against Cunard, there is a lack of interest among class members. [233]*233However, there is no provision under the class action laws requiring that a minimum number of claims be received before certification will be granted. See e.g. Simon v. Cunard Line Limited, 75 A.D.2d 283, 428 N.Y.S.2d 952 (1980) (holding that a large number of formal complaints was not necessary to certification, especially where “all the passengers were on one ship, suffering common complaints”). Even so, Cunard’s own records reveal that they received many letters and calls of complaint from discontented passengers.

Pa. Rule 1702(2) next requires that there be questions of law and fact common to the class. Here questions of fact are common. Indeed, Cunard, in its brief, acknowledges that “all of those on the QE2 underwent the same experience, i.e., they were all board the same vessel at the time of the power failure . . . (Emphasis added).” All passengers were similarly affected by the lack of food, water, toilet facilities, air conditioning and other essential services. Furthermore, though a few passengers thought the inconvenience to be minimal, this does not defeat certification of the class where a larger number of passengers felt otherwise.

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35 Pa. D. & C.3d 228, 1985 Pa. Dist. & Cnty. Dec. LEXIS 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bucci-v-cunard-line-ltd-pactcomplphilad-1985.