Prince George Center, Inc. v. United States Gypsum Co.

704 A.2d 141, 1996 WL 931635
CourtSuperior Court of Pennsylvania
DecidedNovember 27, 1997
DocketNo. 531
StatusPublished
Cited by29 cases

This text of 704 A.2d 141 (Prince George Center, Inc. v. United States Gypsum Co.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Prince George Center, Inc. v. United States Gypsum Co., 704 A.2d 141, 1996 WL 931635 (Pa. Ct. App. 1997).

Opinion

JOHNSON, Judge:

In this appeal we consider whether the notice procedure employed in a class action conducted in accordance with the Pennsylvania Rules of Civil Procedure was constitutionally sufficient to bind an absent plaintiff class member. We also consider whether the vigorous litigation between an absent plaintiff and the same defendants in a parallel out-of-state action requires the absent plaintiffs’ exclusion from the class of settling plaintiffs after entry of final judgment. We conclude that the notice afforded the Prudential Insurance Company of America (Prudential) satisfied the requirements of due process. We also conclude that the distinguished trial judge acted entirely within his discretion in denying Prudential’s petition for exclusion from the plaintiff class or, in the alternative, a determination that its opt-out notice was timely. Accordingly, we affirm the order denying Prudential’s petition and supplement thereto.

This class action was instituted May 30, 1986, by Peter Kalkus, an owner of Virginia office buildings, on behalf of owners of office buildings having United States Government tenants, against an array of asbestos manufacturers. On April 18, 1990, Prince George Center, Inc. intervened as class representative after Kalkus’s claim was ruled barred by a Virginia statute of repose. On April 16, 1992, the Philadelphia Court of Common Pleas certified the class as follows:

... private owners of buildings (within the District of Columbia and the fifty United States) that were leased or subleased in whole or in part to the Federal Government or any agency, department or unit thereof, on or after May 30,1986, in which [143]*143buildings, asbestos containing material was or is present.

Memorandum and Order, Kremer, J., dated April 16, 1992; R.R., Vol. I, at 268a. Notice of this order was never required. On May 7, 1993, the court ordered this action to proceed on an opt-out basis, as provided in Pa. R.Civ.P. 1711(a).

By early 1995, twenty-four of the twenty-eight non-bankrupt defendants in this action had executed settlement agreements with plaintiffs’ counsel, contingent upon court approval. Settlement funds totaling $3,782,400 and a cash rebate program had been advanced. To facilitate court approval of these settlements, the court decertified the plaintiff class in February 1995, and certified a settlement class. The court conditionally certified a separate trial class, pursuant to Pa.R.Civ.P. 1710(d), to continue the litigation against the four non-settling defendants. The new classes were defined as:

... a Settlement Class consisting of all private owners of any building or buildings in the United States that were leased or subleased in whole or in part to the federal government or any agency, department or unit thereof at any time between May 30, 1984 and December 22, 1994, inclusive, in which building(s) asbestos or asbestos-containing materials were present.

And:

... a Plaintiff Class for purposes of trial consisting of all private owners of buildings in the United States who, at any time between May 30, 1984 and December 22, 1994, inclusive, (1) leased or subleased their building(s) in whole or in part to the United States or any agency thereof; and, (2) at any time during such period their building(s) contained asbestos or asbestos products; and, (3) the asbestos or asbestos products in their building(s) were manufactured, sold or installed by U.S. Gypsum and/or U.S. Mineral Products Company and/or W.R. Grace & Company and/or As-bestospray Corp., or their building(s) is (are) in a state whose law permits such an owner to establish joint and several liability for conspiracy or concert of action, against not only the maker or seller of asbestos or asbestos products in his/her/its building(s) but also, others who acted in concert or conspiracy with him/her or it to misrepresent or withhold from the public, knowledge of the hazards of asbestos.

Amended Order, Bonavitacola, J., dated February 17, ,1995, at ¶¶ 2, 4, attached as Exhibit G to Affidavit of Prudential’s Counsel in Support of Petition for Declaratory Relief.

In October 1987, Prudential, as an owner of commercial buildings, sued the trial class defendants in the United States District Court for the District of New Jersey. Prudential’s claim was for damages incurred and to be incurred as a result of asbestos in its buildings. By stipulation of the parties, on March 26, 1995, this suit was limited to eighteen Prudential buildings.

In February 1995, the Pennsylvania trial court ordered that notice of the settlements and their terms be sent to the settlement class and scheduled a hearing for objections and approval of the settlements for May 19, 1995. Class members could opt out of the settlement class by filing a written election with the court by April 18,1995. A summary notice of the settlement was published twice in the Wall Street Journal and eight major metropolitan newspapers. A more detailed notice was sent by first class mail to 36,383 potential class members appearing on a list compiled by the General Services Administration and the United States Postal Service which contained the names and addresses of federal agency landlords. Prudential was identified as the owner of seven properties on this list and notices were mailed to each. None of these properties were involved in Prudential’s New Jersey litigation.

On April 28, 1995, Steven A. Lauer, a member of Prudential’s house counsel staff, executed the form to opt out of the settlement class on behalf of Prudential. On May 10, 1995, Robert Gilson, counsel to Prudential, drafted a letter to the Philadelphia Pro-thonotary for Lauer’s signature indicating that Prudential did not want to be a member of any future class in the Prince George Center, Inc. action unless Lauer received notice and filed an affirmative election to participate. This letter was never sent.

[144]*144By April 1996, the four remaining defendants in this action had executed settlement agreements. The trial court ordered that notice be given and that an approval hearing be held July 24, 1996. Exclusion requests were to be filed by July 9, 1996. Notice was disseminated in May 1996 to the same addresses as the earlier settlement notices, advertised in the same newspapers as the earlier notice, posted on the internet, and announced in five trade publications. The notice of settlements with the trial defendants stated:

If you are already a party to another lawsuit against Grace, U.S. Gypsum, U.S. Mineral and/or Asbestospray not involving personal injury, you must nonetheless file an Exclusion Request; otherwise, you will be bound by the Settlement Agreement and the Final Judgment Order, and your lawsuit will be enjoined.

Notice of Proposed Settlements, Bonavi-tacola, J., dated April 24, 1996, at ¶24, attached as Exhibit L to Affidavit of Prudential’s Counsel in Support of Petition for Declaratory Relief. Seven notices were sent to the same Prudential buildings as the earlier notice, and the Post Office returned two of these as undeliverable.

Prudential did not return an exclusion request, nor did it appear at the July 24 hearing. 289 members of the trial class opted out of the settlement, an important number since Grace and Gypsum had reserved the right to rescind the agreement if 500 exclusion requests were received. The court approved the settlements at the hearing and judgment was entered in favor of the four defendants on August 13,1996.

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Cite This Page — Counsel Stack

Bluebook (online)
704 A.2d 141, 1996 WL 931635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prince-george-center-inc-v-united-states-gypsum-co-pasuperct-1997.