Wichterman v. Sunset Memorial Park Co.

74 Pa. D. & C.4th 129
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedSeptember 1, 2005
Docketno. 5296
StatusPublished

This text of 74 Pa. D. & C.4th 129 (Wichterman v. Sunset Memorial Park Co.) 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
Wichterman v. Sunset Memorial Park Co., 74 Pa. D. & C.4th 129 (Pa. Super. Ct. 2005).

Opinion

BERNSTEIN, J,

Presently before this court is plaintiff’s motion for class certification arising from plaintiff’s purchase of a crypt space, for his wife, in defendant’s mausoleum. Plaintiff alleges a breach of contract arising from defendant’s alleged failure to begin building the mausoleum in the time promised as well as defendant’s failure to design the mausoleum as contracted.

FINDINGS OF FACT

(1) Plaintiff has defined the proposed class as “All individuals who entered into an agreement with defendant to purchase one or more crypts in defendant’s ‘Chapel of Memories’ Mausoleum between November 1997 and September 2003.”

(2) The Chapel of Memories is a mausoleum located on the premises of Sunset Memorial Park.

(3) Defendant decided to expand the Chapel of Memories.

(4) In order to finance the expansion of the Chapel of Memories defendant began selling crypt space in the unbuilt addition.

[131]*131(5) On November 19, 1998, named plaintiff, Mr. Wichterman, entered into a form contract agreement with defendant to purchase a family room consisting of 10 crypts inside the Chapel of Memories Mausoleum for $120,095.

(6) Before signing the agreement, Mr. Wichterman was shown an artist’s rendition and schematic diagram of what the Chapel of Memories addition was to look like and the location of the purchased crypts.

(7) Due to lackluster sales of crypt space in the new addition, defendant decided to significantly alter its design.

(8) As of the class certification hearing on July 26, 2005, seven years after the contract was entered into, construction of the addition had just begun.

(9) There are 136 members in the class, each of whom signed a contract to purchase one or more crypts in the Chapel of Memories addition.

(10) All 136 class members signed the same form contract as Mr. Wichterman.

(11) All 136 class members were shown the same artist’s rendition of the Chapel of Memories addition as Mr. Wichterman.

(12) Each contract contained a room number and a crypt position based on the above mentioned artist’s rendition and schematic diagram.

DISCUSSION

The sole issue before this court is whether the prerequisites for certification as stated in Pa.R.C.P. 1702 are satisfied. The purpose behind a class action lawsuit is “to provide a means by which the claims of many indi[132]*132viduals could be resolved at one time, thereby eliminating the possibility of repetitious litigation and providing small claimants with a method to seek compensation for claims that would otherwise be too small to litigate.” DiLucido v. Terminix International Inc., 450 Pa. Super. 393,397,676 A.2d 1237,1239 (1996). For a suit to proceed as a class action, Rule 1702 of the Pennsylvania Rules of Civil Procedure requires that five criteria be met:

“(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 parties are typical of the claims or defenses of the class;
“(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
“(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.”

Rule 1708 of the Pennsylvania Rules of Civil Procedure requires:

“In determining whether a class action is a fair and efficient method of adjudicating the controversy, the court shall consider among other matters the criteria set forth [below]
“(a) Where monetary recovery alone is sought, the court shall consider
“(1) whether common questions of law or fact predominate over any question affecting only individual members;
[133]*133“(2) the size of the class and the difficulties likely to be encountered in the management of the action as a class action;
“(3) whether the prosecution of separate actions by or against individual members of the class would create a risk of
“(i) inconsistent or varying adjudications with respect to individual members of the class which would confront the party opposing the class with incompatible standards of conduct;
“(ii) adjudications with respect to individual members of the class which would as a practical matter be dis-positive of the interests of other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;
“(4) the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues;
“(5) whether the particular forum is appropriate for the litigation of the claims of the entire class;
“(6) whether in view of the complexities of the issues or the expenses of litigation, the separate claims of individual class members are insufficient in amount to support separate actions;
“(7) whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.”

The burden of showing each of the elements in Rule 1702 is initially on the moving party. This burden “is not heavy and is thus consistent with the policy that ‘decisions in favor of maintaining a class action should be [134]*134liberally made.’ ” Cambanis v. Nationwide Insurance Co., 348 Pa. Super. 41, 45, 501 A.2d 635, 637 (1985). The moving party need only present evidence sufficient to make out a prima facie case “from which the court can conclude that the five class certification requirements are met.” Debbs v. Chrysler Corp., 810 A.2d 137, 153-54 (Pa. Super. 2002) (quoting Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 130, 451 A.2d 451, 455 (1982)).

In other contexts, the prima facie burden has been construed to mean “some evidence,” “a colorable claim,” “substantial evidence,” or evidence that creates a rebut table presumption that requires the opponent to rebut demonstrated elements. In the criminal law context, “the prima facie standard requires evidence of the existence of each and every element____” Commonwealth v. Martin, 727 A.2d 1136, 1142 (Pa. Super. 1999), appeal denied, 560 Pa. 722,745 A.2d 1220 (1999). However, “the weight and credibility of the evidence are not factors at this stage____” Commonwealth v. Marti,

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Bluebook (online)
74 Pa. D. & C.4th 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wichterman-v-sunset-memorial-park-co-pactcomplphilad-2005.