Bullick v. City of Philadelphia

110 F.R.D. 518, 1986 U.S. Dist. LEXIS 26244
CourtDistrict Court, E.D. Pennsylvania
DecidedApril 28, 1986
DocketCiv. A. No. 85-7175
StatusPublished
Cited by1 cases

This text of 110 F.R.D. 518 (Bullick v. City of Philadelphia) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bullick v. City of Philadelphia, 110 F.R.D. 518, 1986 U.S. Dist. LEXIS 26244 (E.D. Pa. 1986).

Opinion

MEMORANDUM AND ORDER

JAMES McGIRR KELLY, District Judge.

Presently before the court is the plaintiff Robert Bullick’s motion for class certification pursuant to Fed. R. Civ. P. 23. The defendant City of Philadelphia has no objections at this time to the conditional certification of a properly defined class pursuant to Rule 23(b)(1) or (b)(2). Given the defendant’s conciliatory stance, and for the following reasons, a class shall be conditionally certified pursuant to Rule 23(b)(2). CLASS DEFINITION

An essentia] prerequisite to the application of the Fed. R. CL. P. 23 class certification factors is the definition of the class. Critical questions, such as numerosity, cannot properly be addressed unless the parameters of the class have been defined. The definition proposed by the plaintiff is overbroad because it includes persons whose claims are barred by the applicable statute of limitations.

The plaintiff’s complaint seeks to redress alleged due process and equal protection violations pursuant to 42 U.S.C. § 1983. Complaint. 11112, 26. The United States Supreme Court held in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), that all claims under 42 U.S.C. § 1983 would be characterized as claims for injury to the person and would be governed by the state statute of limitations applicable to such claims. Thereafter, the Third Circuit Court of Appeals has ruled in Smith v. City of Pittsburgh, 764 F.2d 188 (3d Cir.1985), and Knoll v. Springfield Township School District, 763 F.2d 584 (3d Cir.1985), that actions under 42 U.S.C. § 1983 in Pennsylvania are governed by a two-year statute of limitations.

The only proper class members are those whose claims are not time-barred. See Wetzel v. Liberty Mutual Insurance Company, 508 F.2d 239, 246 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); Alvarez v. City of Philadelphia, 98 F.R.D. 286 (E.D.Pa.1983); [520]*520Ulloa v. City of Philadelphia, 95 F.R.D. 109 (E.D.Pa.1982). The complaint was filed on December 13, 1985. Consequently, only those persons who were employed by the City of Philadelphia on or after December 13, 1983, could possibly be included in the potential class.

Furthermore, the plaintiff’s proposed class certification order does not use the Civil Service titles of the employees in question. The defendant has clarified, and the plaintiff has not contested, that the part-time employees in the Recreation Department which the plaintiff is attempting to represent are Assistant Recreation Leader and Recreation Leader I. The use of these titles in the class certification order is preferable because they will allow for precise definition of the class.

PREREQUISITES

Pursuant to Rule 23(a) of the Fed. R. Civ. P., there are four (4) prerequisites to maintenance of a class action: (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 party are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

The exact number of potential class members is currently unknown. However, the exact number of the plaintiff class need not be ascertained for the numerosity requirement to be satisfied. Susquehanna Tp. v. H & M, Inc., 98 F.R.D. 658, 664 (M.D.Pa.1983). The plaintiff has asserted his belief, which the defendant has not contested, that the potential class consists of in excess of one hundred and forty (140) persons. Therefore, joinder of all members would be impracticable. See Fox v. Prudent Resources Trust, 69 F.R.D. 74 (E.D.Pa.1975) (joinder is generally impracticable when the class exceeds one hundred persons).

The issues in the case at bar are whether the defendant violated the rights of class members by reducing their hours and benefits and by denying them the benefits afforded to other similarly situated employees. It is alleged that the defendant violated the City of Philadelphia Home Rule Charter by failing to provide for uniform qualifications and compensation for all positions in the same class and by failing to conduct open, competitive examinations for job applicants. It is also alleged that the defendant violated 53 P.S. § 12638 by reducing the pay and position of class members, classified civil service employees, without just cause. Due to the above actions of the defendant, the plaintiff claims the class members have not and are not receiving the benefits to which they are entitled and that the defendant’s hiring of forty additional full-time recreational aides, without testing or posting of positions, caused class members to suffer reductions in their hours and benefits. Because the plaintiff has alleged the defendant committed certain acts that affected all class members, which are alleged to be in violation of applicable laws, there are questions of law or fact common to the class.

Because the defendant’s alleged violations adversely affected the plaintiff and all other class members, the claims or defenses of the representative party are typical of the claims or defenses of the class. The claims of the class representative and other class members are based upon the same legal or remedial theory; the typicality requirement is met. See Christy v. Hammel, 87 F.R.D. 381 (M.D.Pa.1980).

Before certifying a class, the court must determine that the named plaintiff would be an adequate representative. A representative will be considered adequate if he has common interests with the unnamed members of the class and it appears that he will vigorously prosecute the interests of the class through qualified counsel. Dorfman v. First Boston Corp., 62 F.R.D. 466 (E.D.Pa.1973). In Karan v. Nabisco, Inc., 78 F.R.D. 388, 406 (W.D.Pa.1978), the court stated that the relevant considerations in determining the adequacy of class representation include the importance of common class questions to the plaintiff’s individual claims; whether the plaintiff’s indi[521]*521vidual interests are antagonistic to the interests of the class; the extent to which the court can assume that any antagonism that may exist will not affect the presentation of class issues; the plaintiffs familiarity with the circumstances of other class members; the resources required to pursue litigation properly as to the class asserted; whether geographically dispersed class members would have to be in close contact with counsel for proper presentation of their claims; and the competence, experience and zeal of the plaintiff’s counsel.

Based upon the above factors, the instant case will be certified as a class action.

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Cite This Page — Counsel Stack

Bluebook (online)
110 F.R.D. 518, 1986 U.S. Dist. LEXIS 26244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bullick-v-city-of-philadelphia-paed-1986.