behalf of sixty six thousand eight hundred persons seeking a minimum of sixty six point eight million and a maximum of six hundred sixty eight million dollars in punitive damages that would ultimately be satisfied by the taxpayers of drugs county is truly unprecedented in many respects and should be reversed by this court for a number of independent reasons wasn't this to quit only applying with the pennsylvania legislature decided to do should there be a damages just as the supreme court interpret in the federal privacy act an f a a vs cooper emphasized that the term actual damages in that case under the federal privacy act had to be construed to require pictionary harm wise in this case the legislature was very intentionally wanted drafted was a statute to cabin just as the supreme court said in the f a a vs cooper case to cap and not to maximize damages none the less obtain should have damages and again it would have been very easy for the legislature to say had it been their intent to open up the treasury of every municipality and county to allow for  impose against government agencies which is in contravention of the historic words option against allowing punitive damages against governmental bodies the legislature could have said you can get actual real damages and w act the statute did not contemplate the allowance of punitive damages which are substantial we're talking about a thousand dollars as a minimum ten thousand dollars as a maximum so so that means that as a threshold matter consistent with assuming the role but this statute you have to have at least some actual damages actual real damages as a prerequisite to get  previous article with the benefit of hindsight perhaps that's what we ought to done but all it took are three instances that you could have intervened right you could have as judge greenberg just mentioned said that before the judge made the court made any rules there is a q or issue of the law and the resolution of that issue is clear and there will either be an injustice the word issue is one of public importance that the court can consider the issue not that i'm going to consider first a summary judgment across motions for summary judgment and a party who would be injured by the sequence of decisions could all of that the district court please without ruling on this on issue until this other than where we a to the statute there is a good following up on the first case hi lo there is a floor of a thousand dollars per violation there is a ceiling of ten thousand dollars per violation there are sixty six thousand talk about we dominance which is an important issue when i return to the podium ruling of any kind no has she been asked to as to how any damages would be calculated we put in our brief the colloquy there occurred at the classification stage the statute says it's one thousand to ten violation but she said was a violation maybe there was one violation here when they release the records to the internet maybe you've got plaintiffs you're looking at a case that's between a total of a you know it's going to come back to us about his weekend anyway so why would the point is there's nothing in your last case before us was where where was it in the record that this highway and there's nothing the record at all he's stressed he's making a statement that those are the damages but there's been no determination as to how the punitive damages will be submitted whether it'll be one aggregate number how it will be decided decided what a violation has legislature has the decision and the right to decide when minas apologies are going to pay and they have to do it in a targeted way and  very thorough and careful analysis of privacy statute was a decision by the pennsylvania legislature to impose both exemplary and actual damages one municipalities that violate  have a bus accident with a separate bus and a car and it's just a regular tour case courts are going to imply it bought the legislature has the  right to do to structure that in the stash and i'm looking for the site it's in the mayor true case that we cite where this has been spring quits as of course the legislature has the right to impose case so the question is is it a targeted rape or try to strip analyze the statue of rank he said it was he didn't reach the second part of example example because it had been raised then but judge wilson just took the next logical step should look at ninety one eighty one of the statute it says any agency that violates any provision of the statute is rubber for of the penalties actually ninety one eighty one says penalties and ninety one eighty three six sets forth those penalties so i don't think there's any really any reasonable construction of th theoretically good energies can be available when there are new with there's no actual injury and the whole notion of whether in fact is the todd other similarly situated are aggrieved yes he makes two arguments that one is that under the statute itself the structure of the statute you have to tie actual damages to pin it damages in turkish words as you said just there independen are not conditioned on each other so i was a just regular reading of the statute there's no basis to say that one is the precondition of the other the other argument he says is oh well pennsylvania law had always been there had been was a was an exceptional case where you had no viable case in which period of damages could be claimed in other words you had no liability case and there are older pennsylvania cases that stand for the proposition judge van arsdale and in this is page forty two of our brief he cites panel and you can't put in evidence of harm so the idea that in nineteen seventy nine when they enacted mature stature the pennsylvania common law required actual damages friction it is is simply not there it's always been the wrong pennsylvania but they were separate and you didn't need them now there is the way that i was posing my questions throughout an accurate statement of your understanding pennsylvania law which is if the there has to be about a liability fighting every element of the underlying cause of action needs to be satisfied would you also agree that if an element of the cause of action damages just like a common law to it in breach patna causing damages you don't prove damages you can get punitive damages from that work because you had satisfied the elements of the cause of action you agree with that not not pennsylvania course and once you cruise all of the elements for liability then you're entitled to recover whatever damages are available or granted these are valuable is that crack yes ok so when this is that you is it your understanding that there is no obligation of that and that's why it's going to be an exemplary only class the class notice will tell people if you think you have significant actual and real damage just like crossing the planet you have the right to an end you know probably wrong and think very seriously about opting out of the class to pursue those because this class cannot go forward seeking actual real damages the class representative hasta have the same harm and suffering going back to the way i would like to make one point in the reply brief they rip on this because the actual whether you need action or for example the damages there were rely very heavily on a s t coal and they cited for the proposition that in punitive damages in pennsylvania you happen to look at the harm to the individual and that's an incorrect citation the case itself only says it's a demonstrate intentional rule koran or reckless conduct that's a standard formulation it does go on to say pennsylvania has adopted session nine zero eight of the restatement second of tours and the their whole reply brief argument saying aha because the rate statement says that you can't get that therefore you have to look at it but and this is very important i'd like to get this in the record the restatement clear its view on on that issue with the two of us dress the only intervention i would be glad to i'd like to make four points about it if i can't i think you understand the not one way intervention if you look at the case that they cite the supreme court of utah versus american pipe and this is the cruel court says it's unfair to allow members of the class to benefit from a favorable judgment without subjecting themselves to the binding effect of an unfavorable one the predecessor to twenty three b three had no provision for either notice we were deciding who was in the class you didn't on the sidelines and say oh i can do better i'm not going to imo i want to intervene and take advantage of that judgment work i think i'm going to find my own suit as i can do better we couldn't that's not our situation the hall but class is going to balanced and can be banned by an ad christus to terminations here the jury could come back and say you know what we decide this wasn't willful misconduct and the whole class loses and so there's no you know the  unfairness of the one way intervention is not present here and it just isn't one way intervention to this kind of interlocutory order the  organ today i came across the d c circuit said well cured by don't say anything about in the class notice that that case is pasta ever since and at six twenty seven f second one other the final point i'd like to make very briefly and i think this is important for you to consider and in that in brewing on this if you're going to say that a kind of an interlocutory were like this which is in class action snapple particularly under hydrogen cross eyed you have a classification almost necessarily coming at the end of the case after all merits discoveries over because the experts need all of that for the you know one way intervention because you're making a ruling that somehow would benefit of making or honors if the legislature specifically intended to impose punitive damages for a violation of ninety one twenty one they could put in ninety one twenty one the same penalties provision but they permitted ninety one zero six and they didn't do it whether that act was done willfully and isn't all of that a common decision for all of the plaintiffs serious or whether the actor acted world only when he gauging in that conduct tell me why that's not a predominant not individual iced inquiry that is not a predominant issue because with respect to each class number there will need to be an individualized determination as to whether or not he or she isn't titled you know wrong thing there's push it affects the entire class people all of the information that's held by your clients is then released you know there's been a determination of  damages but he had not but the real rishon for predominate some reason that courts have consistently rejected certification a few of them just claims that pennsylvania law like the all many other states and this court said it twice kinds of claims have the opportunity to opt out because otherwise they would based on the one wishing of the class have access to those damages so why are we talking about those individual member as to the nature and extent of the harm some people will have greater horn but others harms going to be the individual eyes or ms in the irrelevant i understand the formulation of the class right they're not going to be able to come and say i have suffered actual damages i was up for a job that would have paid me a million dollars the the potential employer use that potential evidence of actual real to have a different assessment of you know that the average is as that individual no better evidence or indeed would be relevant to the amount seems to me that of necessity the rule need to be individualized inquiry into the facts and circumstances of each individual's claims and indeed whether they sustained actual real damage is whether they suffer