Opinion

Niemiec v. Allstate Insurance

  • 721 A.2d 807
  • 1998 Pa. Super. LEXIS 3808
Court
Superior Court of Pennsylvania
Filed
Dec 2, 1998
Status
Published
Author
McEWEN
On the bench
McEwen, Lally-Green, Montemuro
Cited by
13 cases
Authority
More cited than 7.3%

distinguishing between the certification and the pleading stages by stating that “upon a motion for class action certification the court considers whether a claim may be brought by a class of plaintiffs, whereas at the earlier, preliminary objection stage, the court must decide whether there exists a valid claim to be brought at all, no matter who the plaintiff”

How later courts described this case

  • distinguishing between the certification and the pleading stages by stating that “upon a motion for class action certification the court considers whether a claim may be brought by a class of plaintiffs, whereas at the earlier, preliminary objection stage, the court must decide whether there exists a valid claim to be brought at all, no matter who the plaintiff”
  • holding that order referring claim to arbitration, sustaining preliminary objections, and dismissing one count of complaint with prejudice was not final and appealable
  • holding order referring claim to arbitration, sustaining preliminary objections, and dismissing one count of complaint with prejudice was not final and appealable
  • order sustaining preliminary objections, referring case to arbitration, and dismissing one count of complaint with prejudice was not final and appealable

Written by the judges who cited it.

The opinion

McEWEN, President Judge,

dissenting.

While the expression of the majority demonstrates a careful analysis and provides a sound rationale, see: In re Class Action Appeal of Kelly, 704 A.2d 172 (Pa.Cmwlth.1997), I am obliged, nonetheless and respectfully, to dissent. It strikes me that the interpretation of Rule 313 by this Court in DiLucido v. Terminix, 450 Pa.Super. 393 , 676 A.2d 1237 (Pa.Super.1996), alio, denied, 546 Pa. 655 , 684 A.2d 557 (1996), requires that this panel find that an appeal from an order dismissing the class action claim of appellants is immediately appealable pursuant to Rule 313. In my view, there is a hue of inconsistency to a ruling which directs the underlying claim to proceed to trial while concluding that the class action allegations are not collateral to or separate from the underlying claim. Thus it is that I would proceed to a consideration of the substantive claims presented by this appeal.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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