Pennsylvania Code › Title 231 - RULES OF CIVIL PROCEDURE › Part I - GENERAL › Chapter 1700 - CLASS ACTIONS › Appendix A - ANALYSIS OF THE RULES › Rule 1712 - Order. Notice of Action

Current through Register Vol. 54, No. 28, July 13, 2024
This lengthy rule departs in important respects from the
					 Federal rule, and provides a novel solution to the notice problem.
It provides that notice of the order of certification must
					 be given to members of the class whether the action is for monetary recovery or
					 for equitable or declaratory relief or for both. Federal Rule 23(c)(2) provides
					 for individual notice of the certification to the members of the class only in
					 23(b)(3) actions, i.e., actions where the only ties between the class members
					 are common questions of law or fact. The Federal rule does not require such
					 notice in 23(b)(1) or (b)(2) classifications.
Rule 1712 relaxes the rigid requirement of personal
					 individual notice required by
Eisen v. Carlisle and Jacquelin
, 417 U. S. 156, 40 L. Ed.2d 732, 94 S. Ct. 2140 (1974), in which the United
					 States Supreme Court held that individual written notice required under
					 23(b)(3) to identifiable class members is mandatory and not discretionary and
					 may not be waived by providing some other general form of notice. The decision
					 was not based upon constitutional due process grounds but on judicial
					 interpretation of the intent of the rule.
Notice in equitable or declaratory relief actions is
					 discretionary under the Federal rules. Under Rule 1712 notice will be given in
					 all types of class action irrespective of the form of relief sought.
Rule 1712(a) requires the court to include all the
					 requirements of notice in its certification order. This includes (1) type and
					 content of the notice, and (2) identity of the members of the class to be
					 notified.
The court is given broad choices dependent on (1) extent
					 and nature of the class, (2) relief requested, (3) cost of notification, and
					 (4) possible prejudice to members not notified. The situation may be different
					 in a pure injunction case and in a conventional action for monetary relief
					 only.
As an administrative convenience, the court is given the
					 privilege to designate a person other than the attorneys for the class to
					 administer the notice procedure and to serve as a source of information to the
					 members.
The mandate of Eisen that the plaintiff must pay the costs
					 of the giving of the notice is retained, but the burden is minimized.
Rule 1712(b) further expands the court's discretionary
					 power as to type of notice. Keeping in mind the requirements of due process,
					 the court may require individual notice by personal service or by mail to all
					 members who can be identified with reasonable effort or, in appropriate cases,
					 notice through other methods which it determines are reasonably calculated to
					 inform the members of the class of the pendency of the action. The latter may
					 include newspaper notices, television, radio, posting and trade, union and
					 public interest groups.
Where members of a union are members of the plaintiff
					 class, inclusion of the notice in ordinary membership mailings or notice
					 published in union publications regularly distributed to the members, or
					 notices on the union employers' bulletin boards and other similar means of
					 communication reasonably calculated to inform the members of the class are
					 available. In equitable relief situations the use of news media, radio or
					 television would suffice, depending on the circumstances and the reasonable
					 probability that the class will be thereby informed. The Federal courts in
					 23(b)(2) class actions seeking equitable or declaratory relief have in many
					 cases provided for these forms of notice.
Rule 1712(c) provides that the notice must be prepared by
					 and given at the expense of the plaintiff. The Federal courts have differed as
					 to whether the notice should come from the court or be sent by the plaintiff.
					 Following the practice of many Federal courts 1712(c) requires submission of
					 the proposed notice to the parties and to the court with leave to file
					 objections thereto in ten days.
Rule 1712(c) also includes a novel provision, which
					 authorizes the court to minimize the plaintiff's expenses by requiring the
					 defendant to make available to the plaintiff use of defendant's established
					 methods of communication with members of the class. For example, the notice
					 could be put in the same envelope with monthly mailing of bills or other normal
					 mailings of the defendant to the members of the class or by delivery by hand by
					 an electric or gas meter reader or a milkman to the patrons of the defendant
					 company where those methods of communication are used by the defendant in the
					 ordinary course of its business. The plaintiff may, however, be required to pay
					 any additional costs incurred by the defendant, but these would rarely be
					 substantial.
Rule 1712(d) provides that, if a defendant asserts a
					 counterclaim against a plaintiff class, the court may allocate the cost of a
					 combined notice between the parties. Since the procedure in the action follows
					 the normal procedure governing the form of action in which relief is sought, a
					 counterclaim may be available to a defendant. If the counterclaim is asserted
					 against the members of the plaintiff class as a class the court must certify it
					 as a "defendant class action" in which the original defendant is plaintiff in
					 the counterclaim and the original plaintiffs are a defendant class in the
					 counterclaim. While such counterclaims will be rare, they are a possibility
					 under appropriate circumstances.