¶ 1 In this class action case, Appellant, Daimler Chrysler Corporation ("Chrysler"), appeals from the order entering judgment in favor of Appellee, Louise Crawley ("Crawley") and the class. Crawley filed a cross-appeal. For the reasons discussed below, we vacate the judgment and remand for decertification of the class.
¶ 2 A careful examination of the record reveals the following facts. The present litigation has spanned approximately twelve years and has been overseen by three judges of the Court of Common Pleas of Philadelphia County.
¶ 3 On July 25, 1990, Dr. Robert Debbs ("Debbs") filed a lawsuit against Chrysler.
¶ 4 On October 3, 1988, Debbs was driving his automobile and was involved in an accident, which caused the air bag in his vehicle to deploy. Debbs alleged that the air bag was defective in that when it activated, it did so in a way that burned Debbs' hands, resulting in permanent scarring. Debbs alleged that the defective activation of the air bag constituted a breach of the warranties of merchantability and fitness. Id. at 1-2.
¶ 5 Debbs alleged counts of negligence and strict liability against Chrysler. Id. at 2-4. First, Debbs alleged that Chrysler negligently manufactured the air bag installed in Debbs' car. Id. at 3. Debbs also alleged that "Defendant is liable under the theory of strict liability as set forth in the Restatement of Torts, 2d, Section 402A...." Id. at 4.
¶ 6 The alleged defect in the air bag may be described as follows. When an air bag inflates, hot air is injected into the bag very rapidly. The hot air must then dissipate in order to deflate the bag. The air bags at issue had vents on the steering column to dissipate the hot air. These air vents were placed on the left and right side of the steering column (the "9 o'clock and 3 o'clock positions" or "9-3" positions). This positioning allegedly represents a design flaw because people tend to drive with their hands at the "9-3" positions. Therefore, should the air bag inflate, the dissipating hot air would be ejected toward a driver's hands, which would be at the "9-3" position. See, Crawley's Brief at 12-14.
¶ 7 Almost 2½ years later, in a document dated December 14, 1992, Debbs petitioned the trial court for leave to amend his complaint.
¶ 8 Debbs' amended complaint averred that the air bag installed into 1988 and later model Chrysler LeBarons and other Chrysler, Dodge, and Plymouth vehicles was jointly designed by Chrysler and Thiokol Corporation. Amended Complaint of Debbs, 6/14/93, at 2.
¶ 9 The amended complaint also asserted a class action and identified two groups within the asserted class. Id. at 3. The first group consisted of "[a]ll persons or entities in the United States who own 1988 through 1991 model year Chrysler, Dodge or Plymouth vehicles manufactured and sold with a Morton Thiokol, Inc., Thiokol Corporation or Motion International, Inc. (collectively "Morton") air bag." Id. The second group consisted of "[a]ll persons in the United States who suffered burns upon deployment of a Morton air bag in 1988 through 1991 model year Chrysler, Dodge or Plymouth vehicles." Id. Debbs then asserted that he was a member of the identified class and that he would fairly and adequately assert and protect the interests of the class. Id. at 6.
¶ 10 The five counts in Debbs' amended complaint were as follows. Count I alleged a theory of strict product liability. Id. at 9-12. Count II alleged that Chrysler breached the implied warranty of merchantability. Id. at 12-14. Count III alleged that Chrysler was negligent in selling Debbs a vehicle with a defective air bag without warning of the dangerous and defective condition of the air bag. Id. at 14-17. Count IV alleged a theory of nondisclosure against Chrysler. Id. at 17-20. Count V alleged that Chrysler violated the Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 P.S. § 201 et seq., and other state consumer protection laws. Id. at 20-22.
¶ 11 On July 16, 1993, Chrysler filed preliminary objections to Debbs' amended complaint. First, Chrysler asserted that the amended complaint must be dismissed because, under the Pennsylvania Rules of Civil Procedure, it is improper to initiate a class action by an amendment to an existing individual claim. Preliminary Objections of Chrysler to the Amended Complaint, 7/16/93, at 3. Second, Chrysler asserted that the amended complaint must be dismissed because it added new parties to the litigation after the expiration of the statute of limitations applicable to amendment of Debbs' original complaint. Id. Third, Chrysler claimed that the allegation of negligence lacked the specificity required under the Pennsylvania Rules of Civil Procedure. Id.
¶ 12 Judge Avellino denied Chrysler's preliminary objections on August 23, 1993.
¶ 13 On February 24, 1994, Debbs filed a motion for certification of two proposed classes: a "burn" class and a "retrofit" class. Debbs' Motion for Class Certification, 2/24/94. Hearings were held on October
¶ 14 The first witness to testify was Debbs, the named plaintiff at the time. Debbs testified that he suffered burns as a result of an air bag deployment during an auto accident in October 1988. Id. at 10-11. Debbs further testified that he was not warned of the danger of burns. Id. at 15, 20. Debbs testified that had he known that the rate of air bag injuries was 10 times higher for his car than for all other cars he considered purchasing, he would not have bought the car. Id. at 59. Debbs sold the vehicle in January 1993. Id. at 20.
¶ 15 James Bowling, an automotive engineering expert, testified next. According to Mr. Bowling, Chrysler had a burn complaint rate of 16.3 per 100,000 autos. Id. at 111. After changing the air bag vents from the "9-3" positions on the steering wheel to the 12 o'clock position, the burn rate dropped to approximately 1.5 per 100,000 autos.
¶ 16 After admitting certain discovery responses into evidence, Judge Avellino heard testimony from Karl Lukens, Chrysler's senior attorney overseeing air bag litigation. In general terms, Mr. Lukens testified about Chrysler's experience with air bag burn complaints and its litigation strategies with respect to those complaints. Id. at 195-254. Mr. Lukens testified that Chrysler has received approximately 100 air bag burn complaints nationwide and that only two or three were "pure burn" cases arising in Pennsylvania. Id. at 207-208.
¶ 17 Louise Crawley petitioned to intervene on November 10, 1994. The class certification hearing was continued to November 17, 1994. At the beginning of the November 17th hearing, the court granted Crawley's petition to intervene. Certification Hearing, 11/17/94, at 5.
¶ 18 Judge Avellino then denied certification of a burn class, reasoning that "the number of such cases in Pennsylvania is hardly worth mentioning. Hence, on numerosity grounds alone, class certification is not warranted." Id. at 6. The court also ruled that individual issues would predominate over common issues. Id. at 7.
¶ 19 With respect to the "retrofit" or "property damage" class, Judge Avellino reasoned on the record as follows:
To begin with, I envision the class as all persons who presently own 1988 through `91 model year Chrysler, Dodge
Id. at 8-9.
¶ 20 Judge Avellino concluded that the class should be limited to automobiles purchased in Pennsylvania because "Pennsylvania's judicial resources should not be squandered litigating claims between nonresidents that arise, if at all, out of state." Id. at 10. He reasoned that the Pennsylvania Supreme Court has discouraged Pennsylvania courts from entertaining national class actions. Id. at 11. Finally, Judge Avellino ruled that the class members could reside anywhere so long as the customer purchased the vehicle in Pennsylvania, because Pennsylvania has a strong interest in regulating the safety of vehicles sold within the state's borders. Id. at 12 ("Pennsylvania has an interest, perhaps not as strong as the interest of the federal government, in the safety of vehicles that are sold within her borders, and that interest is enough to satisfy our handling these claims").
¶ 21 At this point, it was suggested that the class be expanded to include vehicles registered in Pennsylvania. Id. at 13. Judge Avellino expressed a concern that "the issue of defectiveness would turn on where the vehicle was sold. State laws vary." Id. at 14. Judge Avellino recognized that Pennsylvania state courts may have less of an interest over vehicles sold out-of-state but subsequently registered in Pennsylvania. Id. It was suggested that the problem could be cured by including a statement in the class notification that the action would be governed by Pennsylvania law, and that class members could opt out if they disagreed with this designation. Id. at 14. Judge Avellino accepted this approach over Chrysler's objection. Id. at 15-16.
¶ 22 Chrysler also objected to Crawley's intervention because she did not currently own a car with an original "9-3" air bag; rather, Chrysler claimed Crawley had had her air bag replaced with the newer, safer Morton Thiokol 12 o'clock air bag after an accident. Id. at 22-23.
¶ 23 At the end of the hearing, Judge Avellino issued several orders on the record.
¶ 24 Next, the court certified a class of "all persons who presently own 1988-91 model year Chrysler, Dodge or Plymouth vehicles sold or registered in Pennsylvania with an air bag containing vent holes in the nine and three o'clock positions." Id. The court added the following note to his order certifying the class: "for my reasons, see [notes of testimony] this date." Id.
¶ 25 The case proceeded to trial before the Honorable Mark Bernstein on claims of common law fraud, breach of warranty, and violations of the UTPCPL. Essentially, Crawley alleged that Chrysler knew of the defect in the air bags because internal testing revealed an unacceptably high incidence of serious hand burns as a result of the "9-3" air vents. See, Trial Court Opinion, 3/5/2001, at 1-2. In 1989, after Chrysler learned of this risk, it issued a supplement to the owners' manual of new cars containing "9-3" air bags. The supplement indicated that "the air bag may cause the driver to experience minor skin abrasions and/or skin reddening. These normally heal very quickly." Id. at 11. The supplement did not reveal the risk of serious hand burns. Id. As noted above, in February 1990, Chrysler redesigned the air bag for model years 1991 and thereafter to have vents in the 12 o'clock position.
¶ 26 According to Crawley, Chrysler's failure to disclose a material fact about the air bags (i.e., the risk of serious hand burns) constituted fraud and violations of the UTPCPL. Moreover, Crawley contended that the defective design made the air bag (and the vehicle generally) unfit for the ordinary purpose for which the goods are sold. Crawley's Brief at 38. Because the class that was actually certified did not contain members who were burned, but was a "retrofit" class, Crawley sought an amount of money per class member sufficient to install a non-defective air bag in the vehicle of each class member. Trial Court Opinion, 3/5/2001, at 1. Crawley also sought punitive damages. Id. at 11.
¶ 28 The trial court denied all post-verdict motions, except for Crawley's motion for attorney's fees.
¶ 29 Chrysler presents the following issues for our review:
1. Whether the lower court improperly certified a class action where the evidence established that: (i) the limited common issues were overwhelmed by the need for individual proof as to critical elements of Plaintiffs' claims; (ii) the claims of the class representative were not typical of those of remaining class members; (iii) the class definition was impermissibly vague and the class members unidentifiable; and (iv) mandatory procedural prerequisites were not met.
2. Whether the lower court improperly entered judgment against Chrysler on Plaintiffs' fraud and UTPCPL claims in the absence of individualized proof of causation or of any reliance by anyone upon any actionable representation or omission of Chrysler, and where Plaintiffs' common law fraud and punitive damages claims are barred by the economic loss doctrine and, for most class members, by the statute of limitations.
3. Whether the lower court improperly entered judgment in favor of all class members on Plaintiffs' breach of warranty claim where the alleged defect never manifested itself in the overwhelming number of vehicles belonging to class members, and, therefore, the vehicles were merchantable as a matter of law, and where the claims of many class members were concededly time-barred.
4. Whether the lower court abused its discretion in: (i) admitting highly prejudicial evidence of a subsequent design change where such evidence was irrelevant, as there was no issue as to feasibility; (ii) admitting grisly burn photographs and other evidence of injury in a class action for economic losses only; and (iii) excluding evidence to rebut the erroneous presumption of reliance.
5. Whether the lower court erred in multiple respects in its charge to the jury, including impermissibly suggesting, as Plaintiffs' counsel argued to the jury, that Chrysler had a post-sale duty to warn.
6. Whether the lower court violated the Due Process and Full Faith and
Chrysler's Brief at 3-4.
¶ 30 Crawley filed a cross-appeal, raising four issues of trial court error: (1) entering a directed verdict with respect to fraud-based claims arising before Chrysler published the owners' manual supplement; (2) refusing to identify and fix the parameters of the class at the time of judgment; (3) declaring that it had no power to certify a multi-state class; and (4) declining to impose treble damages under the UTPCPL.
¶ 31 We first address Chrysler's concerns of procedural error committed by the trial court respecting the class certification. We begin our review by addressing Chrysler's claim that the trial court erred in permitting Debbs to amend his individual complaint to include a class action. Chrysler argues that the amendment improperly added new parties and class action allegations.
¶ 32 Our standard of review respecting amendments to complaints is as follows:
¶ 33 The commencement of a class action is governed by Pennsylvania Rule of Civil Procedure 1703, which provides:
Pa.R.C.P. 1703. The Explanatory Note to Rule 1703 explains in relevant part:
Pa.R.C.P. 1703, Explanatory Comment-1977 (emphasis added).
¶ 34 Pennsylvania Rule of Civil Procedure 1704 sets forth the requirements necessary for a proper class action complaint and states:
¶ 35 Our Supreme Court has made clear that the procedural requirements for class actions are not merely form over substance; rather, they properly inform the defendants and the court of the character of the action. Penn Galvanizing Co. v. City of Philadelphia, 388 Pa. 370, 130 A.2d 511 (1957).
Id. at 514-515.
¶ 36 Our review of the record reflects that Debbs initiated this case on July 24, 1990, as an individual action. He filed an individual complaint that sought recovery in the form of damages for personal injury on grounds of negligence, strict liability and breach of warranty. Debbs did not file a complaint that conformed with the requirements of Rule 1704. Consequently, Debbs' complaint did not inform Chrysler or the trial court that the suit would proceed as a class action as contemplated under Rule 1704 and Penn Galvanizing. Therefore, Debbs' original complaint did not commence a class action under Rule 1703 because the complaint did not comply with Rule 1704.
¶ 37 We next address whether Judge Avellino properly permitted Debbs to amend his complaint to add class action allegations in accordance with the class action rules of procedure. As stated above, on December 14, 1992, Debbs petitioned the court for leave to amend his complaint in order to add class action allegations and additional counts for recovery. On April 2, 1993, the trial court granted Debbs' petition for leave to amend. Debbs filed his amended complaint on June 14, 1993.
¶ 38 A fair reading of Rules 1703 and 1704 leads to a conclusion that a class action cannot be commenced by an amendment to an individual complaint. Rule 1703 states that a class action "shall be commenced only by the filing of a complaint with the Prothonotary." The explanatory comment to Rule 1703 states that "a class action can be commenced only by the filing of a complaint in the form provided by Rule 1704." Explanatory Comment to Pa.R.C.P. 1703. If the class action complaint does not comply with
¶ 39 We next consider whether the trial court properly permitted Debbs to amend his complaint to initiate the class action pursuant to Rule of Civil Procedure 1033. Rule 1033 permits amendments and provides:
Pa.R.C.P. 1033. Our Court has stated the following regarding amendments under Rule 1033:
¶ 40 Our research has revealed one Pennsylvania appellate case which addressed the applicability of amendments under Rule 1033 to class actions. In Foust v. SEPTA, 756 A.2d 112, 117 (Pa.Cmwlth. 2000), our sister court, the Commonwealth Court, permitted an amendment under Rule 1033 of a class action complaint to add class allegations. In Foust, the plaintiffs sought recovery from defendant corporations for, among other things, personal injuries suffered due to exposure to a dangerous chemical, polychlorinated biphenyls (PCBs), as a result of living near or working at a railroad yard. Id. at 115. The plaintiffs brought three separate class action suits in federal court. Id. The federal court denied class certification and transferred the actions to state court. Id.
¶ 41 After certification was denied in federal court, 290 individuals filed individual suits in the Court of Common Pleas of Philadelphia County seeking recovery for, among other things, medical monitoring. Id. Following transfer to the state court, the class action plaintiffs dropped their personal injury claims and sought to amend their class complaint, with among other things, a claim for medical monitoring. Id. at 115. The trial court permitted the amendment and certified the class. Id. The Commonwealth Court affirmed. Id.
¶ 43 We read Foust as permitting an amendment adding class allegations to a case that has been commenced properly as a class action. Here, unlike Foust, the present case did not commence as a class action because the requirements of Pa. R.C.P. 1703 or 1704 were not met. Also unlike Foust, there is no properly-initiated action here. Thus, under Rule 1033, there can be no amendment of an individual complaint to add class action allegations. The trial judge, therefore, abused his discretion when he permitted Debbs' individual complaint to be amended with class allegations.
¶ 44 Chrysler next claims that the trial court's failure to write an opinion on class certification requires reversal of the certification decision. Pennsylvania Rule of Civil Procedure 1710(a) provides in relevant part:
Pa.R.C.P. 1710(a). The accompanying explanatory note states:
Pa.R.C.P. 1710, Explanatory Comment-1977. In addition, we have held that "following the certification hearing, the court must explicitly analyze in a written opinion the rationale for its decision to certify or not certify a class action." Rauch v. United Instruments, Inc., 368 Pa.Super. 294, 533 A.2d 1382, 1385 (1987). In Rauch, this Court remanded the case to the trial court in order for the court to comply with Rule 1710(a) and to discuss the reasons which supported its certification of a class. Id. at 1386.
¶ 45 Our review of the record reflects that while Judge Avellino entered an order dated November 17, 1994, which certified the class, he did not set forth in an opinion accompanying the order the reasons for his decisions, including findings of fact, conclusions of law and appropriate discussion. While Judge Avellino stated in the certification order that his reasons for granting the certification could be found in the transcript of the November 17, 1994
¶ 46 Chrysler next argues that the trial court erred by assigning the case to a succession of judges. Rule 1703(b) states: "[u]pon the filing of the complaint the action shall be assigned forthwith to a judge who shall be in charge of it for all purposes." While we appreciate that the advantage of having the same judge is that the judge is familiar with the litigation by the time it is ready for trial, we decline to address the issue because it is waived. "Issues not raised in the court below are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). See also, Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Chrysler did not object at the time of the transfers to the various judges. Thus, this issue has not been preserved for our review.
¶ 47 Chrysler argues that the trial court improperly certified the class. The class certification rules include Pa.R.C.P. 1702, 1708 and 1709.
¶ 50 This Court set forth the relevant standards for reviewing class action certification, as follows:
¶ 51 Class certification is a mixed question of law and fact. Weismer v. Beech-Nut Nutrition Corporation, 419 Pa.Super. 403, 615 A.2d 428, 430 (1992). Courts should not dispose of class issues such as numerosity and typicality based on the perceived adequacy or inadequacy of the underlying merits of the claim. See, Basile v. H & R Block, Inc., 729 A.2d 574, 587-588 (Pa.Super.1999), citing, Pa.R.C.P. 1707 (Explanatory Note-1977). On the other hand, courts may need to examine the elements of the underlying cause of action in order to dispose of class issues properly. See, Weinberg, 777 A.2d at 446 (because false advertising claims under the UTPCPL require individualized proof of reliance, causation, and proof of loss, individual claims predominated over common issues; therefore, "the certification requirements of commonality and numerosity were not met").
¶ 52 Chrysler argues that the class should not have been certified because the requirements of commonality and typicality were not met. Commonality implicates Rule 1702(2) (class may not be certified unless "there are questions of law and fact common to the class"), and Rule 1708(a)(1) (when deciding to certify a class, the court must determine "whether common questions of law or fact predominate over any question affecting only individual members"). Typicality implicates Rule 1702(3) (class may not be certified unless "the claims or defenses of the representative parties are typical of the claims or defenses of the class"). We will address each issue in turn.
¶ 53 Chrysler argues that the case should not have been certified as a class action because there was insufficient commonality among the claims of the class members. Specifically, Chrysler argues that common-law fraud and fraud under the UTPCPL require an individualized showing of reliance on a fraudulent statement. Chrysler further argues that the class action was based on the allegedly fraudulent supplement to each owner's
¶ 54 Crawley, in contrast, argues that the class claims were not based on the affirmative statements in the Supplement. Rather, Crawley argues that the fraud claims were based on Chrysler's concealment of a material fact, i.e., the danger of serious burns from air bag deployment.
¶ 55 Before addressing the class issues, we will briefly set forth the law of common-law fraud and Crawley's claims under the UTPCPL. First, we review the law respecting fraud.
Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882, 889 (1994) (footnote omitted). Concealment of a material fact can amount to actionable fraud if the seller intentionally concealed a material fact to deceive the purchaser. Moser, 589 A.2d at 682; Wilson v. Donegal Mutual Insurance Company, 410 Pa.Super. 31, 598 A.2d 1310, 1315 (1991). "Active concealment of defects known to be material to the purchaser is legally equivalent to an affirmative misrepresentation." Sevin v. Kelshaw, 417 Pa.Super. 1, 611 A.2d 1232, 1237-1238 (1992) (emphasis in original). However, mere silence without a duty to speak will not constitute fraud. Wilson, 598 A.2d at 1316.
Sewak v. Lockhart, 699 A.2d 755, 759 (Pa.Super.1997) (citations omitted). In Klemow v. Time, Inc., 466 Pa. 189, 352 A.2d 12 (Pa.1976), our Supreme Court noted that "[t]he successful maintenance of a cause of action for fraud includes, inter alia, a showing that the plaintiff acted in reliance on the defendant's misrepresentations. Because such a showing would normally
¶ 56 Next, we look at the UTPCPL. The UTPCPL was addressed by our Supreme Court in Weinberg, supra. There, the Court held that a plaintiff bringing a private action under the UTPCPL must establish the common-law elements of reliance and causation with respect to all subsections of the UTPCPL. Weinberg, 777 A.2d at 446. Our Supreme Court stated: "the UTPCPL's underlying foundation is fraud prevention. Nothing in the legislative history suggests that the legislature ever intended statutory language directed against consumer fraud to do away with the traditional common law elements of reliance and causation." Id.
¶ 57 Both fraud and UTPCPL claims were at issue in Basile, supra. There, the plaintiffs brought a class action against H & R Block as well as Mellon Bank alleging that the defendants failed to disclose that tax refunds under H & R Block's "Rapid Refund" program were actually short-term, high interest loans. Basile, 729 A.2d at 577. The plaintiffs alleged, inter alia, fraud and violations of the UTPCPL. Id. at 578.
¶ 58 This Court reasoned that, as to the UTPCPL claims, the plaintiffs must show detrimental reliance. The Court noted that "an action under the UTPCPL may not be amenable to class certification due to discrepancies in the respective levels of reliance displayed by individual class members." Id. at 584, citing DiLucido, 676 A.2d at 1241. The Court held that the plaintiffs need not show individualized detrimental reliance with respect to H & R Block, because H & R Block's fiduciary relationship with the plaintiffs established detrimental reliance as a matter of law. Id. On the other hand, Mellon Bank had no such fiduciary relationship with the plaintiffs. Id. at 585. Therefore, the Court concluded that:
Id. at 585.
¶ 59 The record reflects that Crawley raised three claims under the UTPCPL: (1) representing that goods have characteristics, uses or benefits that they do not have; (2) representing that goods are of a particular standard, quality or grade when they are another standard, quality or grade; and (3) engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding. N.T., 2/18/99, at 62. These allegations correspond to subsections (v), (vii), and (xxi) of the UTPCPL. See, 73 P.S. § 201-2(v), (vii), and (xxi).
¶ 61 Our Supreme Court's directions in Klemow and Weinberg, as well as our own Court's directions in Basile and DiLucido, guide us here. In order to prove both common-law fraud and a violation of the UTPCPL, the plaintiffs must show that they suffered harm as a result of detrimental reliance on Chrysler's fraudulent conduct. See, Klemow, 352 A.2d at 16 (cause of action for fraud includes a showing that the plaintiff acted in reliance on defendant's misrepresentations and, as such, is not generally appropriately resolved in a plaintiff class action); Weinberg, 777 A.2d at 446 (to sustain a private action under the UTPCPL, plaintiffs must show that they suffered "an ascertainable loss as a result of the defendant's prohibited action"). This Court has excused proof of individual detrimental reliance where the defendant has a fiduciary relationship with the plaintiffs. Basile, 729 A.2d at 585. Because no fiduciary relationship has been demonstrated between the class and Chrysler to excuse proof of individualized reliance, the individual questions involving reliance and causation would remain a significant barrier to class certification.
¶ 62 Crawley contends that courts may presume reliance where the fraud involves omissions of objectively material information (in this case, information of the danger of serious burns after deployment of the air bag). Crawley argues that federal and state courts have presumed classwide reliance where the fraud involves omission of objectively material information.
¶ 63 The wisdom of Klemow, Weinberg, Basile and DiLucido is evident in the case before us. Here, Chrysler allegedly withheld information that an adverse result occurred, i.e., serious burns, after the air bag deployed. It is undisputed that the risk of serious burns would arise only after the automobile was involved in an accident of the type and severity to cause the air bag to deploy. It is also undisputed that the risk of serious burns in such cases was relatively low. Thus, the aggregate likelihood that any given buyer would actually suffer serious burns was relatively low.
¶ 64 Under these facts, consumers could have a wide range of reactions to the undisclosed information, depending on a number of factors including: (1) their personal degree of risk-aversion; and (2) their assessment of the other advantages and disadvantages of buying a Chrysler automobile. Some consumers may not have bought a Chrysler at all; others may have bought the car but replaced the air bag; and others may have bought the car but not replaced the air bag. Reasonable consumers could come to different conclusions about the materiality of the withheld information. See, Sewak 699 A.2d at 760 (a "misrepresentation or concealment will be considered material if it is of such a character that had it not been made, the transaction would not have been consummated"); Fox's Foods v. Kmart Corp., 870 F.Supp. 599, 607 (M.D.Pa.1994) ("A matter is material to the transaction when it is of such a character that it determines whether the transaction occurs"). Thus, the trial court erred when it concluded that the commonality requirement was met because common law fraud and fraud under UTPCPL require an individualized showing of reliance on a fraudulent statement.
¶ 65 Chrysler also argues that significant choice-of-law issues defeat a finding of commonality. Chrysler notes that the certified class is defined in terms of automobiles
¶ 67 In the instant case, Chrysler's allegedly improper activity related to inducing the plaintiffs to purchase the vehicle. The critical transaction was the purchase of the vehicle, rather than its subsequent registration in Pennsylvania. The class, as certified by the trial court, includes vehicles which may have been purchased in any of the 50 states. By failing to limit the class to vehicles purchased in Pennsylvania, it can be said that the trial court certified a nationwide class.
¶ 68 The record fails to reflect an analysis of the choice-of-law issue. Crawley did not meet her initial burden of establishing that state law differences would be manageable and would not overwhelm common issues. Also, a trial court can not sidestep choice-of-law issues by declaring that the class action would be governed by Pennsylvania law. See, Phillips Petroleum; In re Jackson National Life Ins. Co. Premium Litig., 183 F.R.D. at 223. Thus, we agree with Chrysler that the trial court erred when it held that choice-of-law issues can be so avoided by declaring that the action would be governed by Pennsylvania law. See, N.T., 11/19/94, at 15-16. Rather, trial courts are to determine whether state law differences would be manageable and would not overwhelm common issues.
¶ 69 For the reasons set forth above, we conclude that class certification was inappropriate with respect to Crawley's common-law fraud and UTPCPL claims because common questions of law and fact do not predominate over individual issues.
¶ 70 Next, Chrysler argues that the class should not have been certified
¶ 71 Our review of the record reflects that Crawley failed to demonstrate on the record that her claims were typical of the class. As the following reflects, the trial court did not adequately consider the typicality question when Crawley was substituted as the named plaintiff, or at any time thereafter.
¶ 72 We observe generally that the record is almost bare with respect to this issue. Crawley alleged in her September 8, 1994 individual complaint that she suffered serious burns after her air bag deployed in an accident on July 19, 1992. She alleged that she was driving her 1989 Chrysler, which she had purchased in Pennsylvania in March 1989.
¶ 73 Chrysler opposed the petition to intervene. At the time, Chrysler disputed that Crawley received a replacement "9-3" air bag. Chrysler asserted that Crawley's replacement air bag contained air vents at the 12 o'clock position. Chrysler also argued that Crawley was not typical of the class because her air bag allegedly caused burns when it slowly inflated as the car came to a stop after colliding with another vehicle, rather than on impact with the vehicle itself.
¶ 74 The record reflects that the trial court substituted Crawley for Debbs as the class representative because Debbs no longer owned his automobile. Crawley, however, did not present evidence at the November 17, 1994 intervention/certification hearing that she would be typical of the class, aside from her claim that she still owned her vehicle and it had a "9-3" air bag.
¶ 75 Judge Avellino recognized a weakness in Crawley's case when he admitted that "all of the criteria for certification are
¶ 76 Chrysler raised the issue of Crawley's typicality again in a motion to decertify the class in November 1997, as amended on February 24, 1998.
¶ 77 After hearing oral argument on February 19, 1998, Judge Levin summarily dismissed the petition to decertify. Judge Levin largely refused to reexamine the typicality issue because it had been addressed by Judge Avellino. Judge Levin recognized that Judge Avellino had not written an opinion in support of class certification. Trial Court Opinion, 4/29/98, at 8. Judge Levin stated, however, that "it is obvious from the relevant transcripts and from the content of its orders, that [Judge Avellino] heard and considered all of the relevant issues, including numerosity, typicality, commonality, and manageability of the suit." Id. at 6. Judge Levin then concluded that Crawley's "certification papers presented to Judge Avellino, coupled with his statements on the record and the detailed orders he entered in granting certification sufficed" to explain his reasons for certifying the class. Id. at 8-9. Judge Levin also concluded that Chrysler had failed to "cite any changed circumstances or provide any equitable justification for de-certifying this class." Id. at 9.
¶ 78 Our review of the record does not support Judge Avellino's conclusion that Crawley was typical of the class. Crawley presented no evidence except her assertion that she was typical because she owned the Chrysler car with a "9-3" air bag. Judge Avellino admitted the weakness in the evidence but concluded that Crawley was typical because she still owned her vehicle that contained a "9-3" air bag. Certification Hearing, 11/17/94, at 8-9. While this fact does make Crawley more typical than Debbs (who no longer owned his car), it does not necessarily make Crawley a typical class representative. Also, the record fails to reflect that Judge Avellino addressed Chrysler's arguments against a finding of typicality. Further, he failed to provide us with an opinion to assist us in our review. In conclusion, the record fails to support Judge Avellino's conclusion that Crawley met her initial burden of establishing typicality. Accordingly, Judge Levin's reliance on Judge Avellino's conclusions was misplaced.
¶ 79 Judge Levin did address Chrysler's argument that Crawley was not typical because the statute of limitations had elapsed on her breach of warranty claim. A class representative is not typical of the class if her individual claims are legally barred. See, DiLucido, 676 A.2d at 1242. In Pennsylvania, an action for breach of warranty action accrues on, and suit must be filed within four years of, the date that the seller tenders delivery of goods, even if a breach is not apparent until after delivery has been tendered. See, 13 Pa.C.S.A. § 2725; Nationwide Ins. Co. v. General Motors Corp., 533 Pa. 423, 625 A.2d 1172 (1993). See generally, Werwinski v. Ford Motor Co., 2000 WL 1201576, *3, 2000 U.S. Dist. LEXIS 11977, *10 (E.D.Pa.2000), affirmed, 286 F.3d 661 (3rd Cir.Pa.2002).
¶ 80 In the instant case, the parties and the court recognized that the statute of limitations on Crawley's implied warranty claim first began to run in March 1989, when she bought her car. Crawley's air bag deployed and allegedly caused her injuries in June 1992. The statute ran four years after March 1989, i.e., in March 1993, whether or not Crawley had knowledge of the defect until after that date. Nationwide. Crawley filed her individual complaint in September 1994.
¶ 81 Judge Levin, however, reasoned that the statute of limitations on her implied warranty claim again began to run in August 1992, after she had the air bag replaced. This replacement air bag, the judge concluded, constituted a "transaction in goods" which re-started the statute of limitations. Trial Court Opinion, 4/29/1998, at 5 n. 6. Judge Bernstein adopted this reasoning as well. Trial Court Opinion, 3/5/2001, at 9 n. 9.
¶ 82 We need not address this issue directly, but we do note that Pennsylvania law does not currently provide a clear answer to this question. Moreover, even if the trial court correctly concluded that Crawley's warranty claim was not time-barred, this fact would not necessarily establish that Crawley's position as a whole was typical of all class members.
¶ 83 Additional questions about Crawley's typicality remained unanswered. The record does not reflect that the trial court thoroughly addressed the typicality question at any stage of these proceedings.
¶ 84 Nevertheless, Chrysler identified many atypical factors about Crawley's individual case which arguably outweighed the typical factors. These factors included, but were not limited to, a nonfrivolous statute of limitations issue; the fact that she had her air bag replaced after an accident; and the fact that her own vehicle may not have been amenable to a retrofit.
¶ 85 Again, the trial court never addressed these issues in a thorough or systematic fashion. Rather, subsequent judges re-adopted Judge Avellino's findings on typicality, which were inconclusive and which were made at an early stage of the proceedings when little was known about Crawley's individual circumstances. Because of the sparseness of the record and the court's factual findings on this issue, we are constrained to conclude that the record does not support a finding of typicality with respect to any substantive claim.
¶ 86 We summarize our conclusions as follows. First, the trial court abused its discretion because it misapplied the law when it permitted Debbs to amend his individual complaint with class action allegations and new parties. Paden. This amendment was not permitted by Rules 1703 or 1704, or by Rule 1033. The class complaint was defective ab initio because it was not initiated as a class action. Second, the court's failure to issue a class certification opinion violated Rule 1710(a). Third, the class claims for fraud and violations of the UTPCPL should have been dismissed for lack of commonality. Fourth, the class claims should have been dismissed because Crawley did not demonstrate that her claims were typical of the class claims. Because the case should not have proceeded to trial as a class action, we are constrained to vacate the judgment in favor of the class.
¶ 87 As a result of our disposition, we need not address a number of issues raised by Chrysler. For example, Chrysler argues that the class was improperly defined. "[W]here the class definition is so poorly established that the court is unable to ascertain who the potential class members are, then the numerosity requirement is not met." Weinberg, 740 A.2d at 1165. While we need not squarely decide this issue, we do note with disapproval that the court defined the class in terms of people "who
¶ 88 Most importantly, we need not decide any of the numerous issues raised by Chrysler concerning the underlying merits of the case, the court's jury instructions, the court's evidentiary rulings, and the imposition of punitive damages. In order to avoid prejudicing the outcome of any individual actions which may proceed after this case is decided, we have attempted to limit our discussion as much as possible to procedural and class issues. See, Basile, 729 A.2d at 587-588. As such, we specifically decline Chrysler's invitation to address two particularly vexing questions: (1) application of the "economic
¶ 89 For the reasons set forth above, we vacate the judgment in favor of the class. In accordance with this opinion, the trial court is to decertify the class and provide adequate notice of this ruling and of the running of the statute of limitations, to the class members, so as not to prejudice any action those individual class members may wish to take.
¶ 90 Judgment vacated. Remanded for further proceedings consistent with this Opinion. Panel jurisdiction relinquished.
We also observe that counsel to the parties in this case have presented to us superb briefs that effectively address the critical issues before us. Further, each counsel's oral argument was expertly crafted and persuasively presented. Thus, the burden of decision-making was eased a bit by the excellence of argument by counsel to the parties in this matter.