J-A16026-15

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOANNA JOHNSON, INDIVIDUALLY AND 

ON BEHALF OF ALL OTHERS SIMILARLY 

SITUATED,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

ENERGY MANAGEMENT SERVICES AND 

LYNNWOOD GARDENS AND NHP 

MANAGEMENT CO.,

Appellees No. 3610 EDA 2014

Appeal from the Order of July 2, 2004

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 1998-20864

BEFORE: LAZARUS, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 03, 2015

Appellant, Joanna Johnson, individually and on behalf of all others 

similarly situated, appeals from the collateral order entered on July 2, 2004, 

which partially decertified the class in this action. The order was made 

appealable by the resolution of the “collateral matter” on October 31, 2014, 

when Appellant filed her praecipe to discontinue the only remaining certified 

claims in the case. We affirm.

The trial court ably explained the facts leading to this appeal:

[Appellant] initiated this action on November 19, 1998[, 

naming as defendants] Grand Cru Property One Limited 

Partnership and Grand Cru Property One Limited Partnership 

t/a Lynnewood Gardens, NHP Management Company, and 

Energy Management Systems, Inc. After amendments to 

the original complaint, [Appellant] filed a Fourth Amended 
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Complaint on March 26, 1999. . . . [Within this complaint, 

Appellant] assert[ed] the following claims[:] breach of 

contract (lease agreement); breach of warranty of 

habitability; breach of covenant of quiet enjoyment; 

negligence; negligence per se; breach of contract (property 

management agreement); breach of contract (EMS 

agreement); negligent misrepresentation and/or fraud[; 

and,] violation of the [Unfair Trade Practices and Consumer 

Protection Law (“UTPCPL”)]. 

On April 3, 2000[, Appellant] filed a motion for class 

certification seeking to represent a class consisting of 

former and current tenants at Lynnewood Gardens 

Apartments. The claim underlying the class action arises 

from alleged electrical service shutoff or discontinuance by 

one or more of the defendants for reasons other than 

accident, emergency, repairs[,] or changes with respect to 

the dwelling units in the apartment complex.

[The trial court] considered [Appellant’s motion for class 

certification] along with [the] defendants’ opposition 

thereto. . . . [The trial court] granted [Appellant’s] motion. 

On October 3, 2000[, the trial court] certified the class as to 

the Fourth Amended Complaint in its entirety. The class 

[was defined as:

All present and former tenants and residents of dwelling 

units at the Lynnewood Gardens Apartments (a) who 

had electrical service shut off or discontinued by one or 

more of the defendants for any reason other than by 

accident, or for emergency, repairs, or changes, and/or 

(b) who paid a “late charge” with respect to electrical 

service to a dwelling unit at Lynnewood Gardens.

Trial Court Order, 10/30/00, at 1].

[At the conclusion of discovery, the] defendants filed 

motions for class decertification. . . . Oral argument [on the 

motion was] conducted on July 2, 2004. After consideration 

of defendants’ briefs, [Appellant’s] opposition thereto, and 

all other responses, [the trial court concluded] that changes 

in the litigation and in the law require[d] decertification of 

[all claims except for the contract claims. Therefore, on 

July 2, 2004, the trial court entered an order granting the 
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defendants’ motions for class decertification “except as to 

the contract claims.”]

At the time of the original certification[, the] class action 

was “all about the wrongful turnoff of electricity to the 

Lynnewood Garden Apartments,” when electrical service 

was discontinued due to nonpayment. [Appellant’s Motion 

for Class Certification, 9/15/00, at 1. Appellant] relied on a 

Cheltenham Township ordinance, Cheltenham Code, 

Chapter 167 § 167-5.E, prohibiting electrical shut-off for 

non-payment. 

Since that time, [Appellant] developed her claims 

completely and thoroughly. [At the time the trial court 

granted the defendants’ motions for class decertification, 

Appellant sought] damages not only for the above described 

alleged improper shut-off and/or discontinuance of electrical 

service[,] but [Appellant also sought] damages in regard to 

“delinquent notices,” asserting that any class member who 

received a delinquent notice [had] been harmed. These 

notices in part asserted a late fee for the unpaid electric bill, 

and warned the tenant of possible electrical service shut-off 

in the event of non-payment of the electric bill together with 

the late fees. [Appellant claimed] that these [] notices 

misled the [respective] tenant [into believing that] 

defendants had [the] authority to shut-off [and] discontinue 

electrical service for nonpayment, thereby causing such a 

class member to pay “illegal” late fees. [The trial court thus 

concluded that, with respect to the fraud, negligence, and 

violation of the UTPCPL claims, the class did not satisfy the 

commonality requirement (because a fiduciary relationship 

did not exist between the parties, detrimental reliance 

varied from person to person, and individual questions 

predominated on the issue of causation) or the typicality 

requirement (because Appellant’s “overall position [was] not 

aligned with those of the class members”). Hence, the trial 

court entered its July 2, 2004 order, partially decertifying 

the class]. 

Trial Court Opinion, 8/12/04, at 1-4 (internal footnote omitted and some 

internal capitalization, citations, and corrections omitted). 
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On October 31, 2014, with leave of court, Appellant discontinued her 

only remaining certified class claims in the case. This resolved the 

“collateral matter” concerning the decertification of the class. See Jones v. 

Faust, 852 A.2d 1201, 1203 (“the timeliness of appeals from collateral 

orders depends not upon entry of the order itself, but upon resolution of the 

collateral matter”). On November 7, 2014, Appellant filed a timely notice of 

appeal from the July 2, 2004 collateral order, which partially decertified the 

class. See Clark v. Pfizer, Inc., 990 A.2d 17, 23 n.3 (Pa. Super. 2010) 

(holding that an order decertifying a class action is appealable as a collateral 

order); but see Basile v. H&R Block, Inc., 52 A.3d 1202, 1206 n.4 

(declaring: “[t]he Superior Court maintains that orders denying certification, 

or decertifying a class action, are immediately appealable as collateral 

orders. . . . The limited grant of allocatur in this case does not encompass 

the question of whether the decertification order qualifies for as-of-right 

interlocutory appellate review”) (internal citations omitted).

Appellant raises the following two claims on appeal:

1. Is a private consumer, such as [Appellant] and each 

member of her proposed class, required to prove reliance on 

a misrepresentation in order to make out a claim for alleged 

violations of the [UTPCPL] based upon (1) violations of the 

then-applicable Debt Collection Trade Practices Act 

(“DCTPA”), 37 Pa. Code §§ 303.1 et seq., promulgated 

pursuant to the UTPCPL and/or (2) violations of the 

UTPCPL’s “catch all” provision which prohibits “deceptive” 

conduct?

2. In order to succeed on their claims under the UTPCPL and 

DCTPA, were [Appellant] and her class required to prove 
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“that each member received the delinquent notice, read the 

notice and believed the threat of electrical service shut off 

contained in the notice and that this reliance resulted in the 

payment of late fees”?

Appellant’s Brief at 6 (some internal capitalization and corrections omitted).

We have reviewed the briefs of the parties, the relevant law, the 

certified record, and the well-written opinions from the able trial judges. We 

conclude that the claims raised in Appellant’s brief are meritless and that the 

trial court’s opinions, filed on August 12, 2004 and December 5, 2012, 

meticulously and accurately explain why Appellant’s claims fail.1 Therefore, 

we adopt the trial court’s opinions as our own. In any future filings with this 

or any other court addressing this ruling, the filing party shall attach copies 

of the trial court’s opinions.

Order affirmed. Jurisdiction relinquished.

____________________________________________

1 See also Kern v. Lehigh Valley Hosp., Inc., 108 A.3d 1281, 1289 (Pa. 

Super. 2015) (“the element of justifiable reliance always was a part of 

private actions under the statutory language of the UTPCPL”); Kern, 108 

A.3d at 1290 (“[a]s a private action under Section 201–9.2 of the UTPCPL, 

[Fair Credit Extension Uniformity Act (‘FCEUA’)] claims therefore must plead 

that a plaintiff suffered an ascertainable loss as a result of a defendant’s 

prohibited action. . . . [T]his requires that justifiable reliance be pled”) 

(emphasis in original); Williams v. Empire Funding Corp., 227 F.R.D. 

362, 366 n.2 (E.D.Pa. 2005) (“[t]he [FCEUA] . . . superseded the [DCTPA], 

effective June 2000”).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/3/2015