author: HOFFMAN, Judge:

text:
    451 A.2d 445
    L. HAFT, Robert Hayden, W. Tandaric, Herman E. Wandrei, E.E. Stiegerwald, and Anthony Rustic, on behalf of themselves and all other similarly situated persons who were within six years before the filing of this action management employees of United States Steel Corporation at Edgar Thomson, Irvin, Vandergrift, or Homestead Works of Eastern Steel, who occupied, when so formerly employed, foreman or general turn foreman positions (excluding general foremen) or other equivalent management positions below the level of general supervisor in staff and service departments and who, while so formerly employed, were eligible for but not paid overtime and Sunday and holiday compensation provided for such employees by United States Steel Corporation, Appellants, v. UNITED STATES STEEL CORPORATION.
    Superior Court of Pennsylvania.
    Argued April 30, 1981.
    Filed April 12, 1982.
    Reargument Denied July 21, 1982.
    Petition for Allowance of Appeal Denied Nov. 16, 1982.

      Henry G. Beamer, III, Pittsburgh, for appellants.
    James T. Carney, Pittsburgh, for appellee.
    Before CERCONE, President Judge, and BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that the lower court erred in: (1) applying the three-year statute of limitations of the Wage Payment and Collection Law to their claim; and (2) denying their motion for class action certification. We agree and, accordingly, reverse and remand for proceedings consistent with this opinion.

Appellants filed a class action in assumpsit on June 26, 1979, seeking to collect payments for certain Sunday, holiday, and overtime work performed for appellee, United States Steel Corporation. Appellants are retired foremen and management personnel below the level of general supervisor, who allege they were eligible for but not paid the compensation. They seek to represent a class of similarly-situated employees at appellee’s Edgar Thomson, Irvin, Vandergrift, and Homestead Works. After a class certification hearing on July 23, 1980, the lower court granted appellee’s motion for partial summary judgment, holding that appellants’ claims were partially barred by a three-year statute of limitations, and denied appellants’ motion for class certification. This appeal followed.

I.

Appellants contend the lower court erred in applying the three-year statute of limitations of the Wage Payment and Collection Law (Wage Law) to their claim. We agree. The lower court applied this statute of limitations on the ground that the Wage Law is the exclusive remedy for the collection of “wages” as defined in that act. 43 P.S. §§ 260.2a, 260.9a. Our Court specifically rejected such an interpretation in the companion case of Todora v. Jones & Laughlin Steel Corp., 304 Pa.Superior Ct. 213, 450 A.2d 647 (1982). Consequently, appellants’ action may properly proceed in assumpsit, subject to the appropriate statute of limitations. Accordingly, we reverse the lower court’s application of the statute of limitations.

II.

Appellants contend also that the lower court abused its discretion in denying their motion for class certification. We agree. The Pennsylvania Rules of Civil Procedure specify five requirements for class certification—numerosity, commonality, typicality, adequacy of representation, and fairness and efficiency. Pa.R.Civ.P. 1702. They specify also certain criteria the court must consider in determining the last two of these requirements. Pa.R.Civ.P. 1708, 1709. A lower court’s order concerning class certification is a mixed finding of law and fact and will not be disturbed on appeal unless the court failed to consider the requirements of the rules or abused its discretion in applying them. Janicik v. Prudential Insurance Co. of America, 305 Pa.Superior Ct. 109, 451 A.2d 445 (1982). In a class certification hearing the burden of proof is upon the party seeking such certification. Id. Accord, Klemow v. Time, Inc., 466 Pa. 189, 352 A.2d 12 (1975), cert. denied, 429 U.S. 828, 97 S.Ct. 86, 50 L.Ed.2d 91 (1976); Scott v. Adal, Corp., 276 Pa.Superior Ct. 459, 419 A.2d 548 (1980). The lower court held that the requirements of numerosity, commonality, and typicality were satisfied, but it denied certification on the grounds that appellants failed to prove the adequacy of their representation of the class and the fairness and efficiency of a class action in adjudicating this controversy.

a. Adequacy of Representation

In determining whether the representative party “will fairly and adequately assert and protect the interests of the absent class members,” Pa.R.Civ.P. 1702(4), the court must consider: (1) whether the attorney for the representative party will adequately protect the class’s interests; (2) whether the representative parties have a conflict of interest in maintaining the action; (3) whether the representative parties “have or can acquire” adequate financial resources; and (4) “other matters” that may be relevant. Pa.R.Civ.P. 1709. The lower court held that none of these considerations supported the conclusion that appellants and their counsel would be adequate class representatives.

1. Attorney’s Adequacy

In its pleadings, appellee expressly admitted appellants’ counsel’s adequacy to protect the absent class members’ interests. The lower court reasoned, however, that appellee’s admission could not be considered as evidence because appellee’s attorney either would be reluctant to attack the competency of a fellow professional, or would chose not to demonstrate a known deficiency so that he could later take advantage of his opponents’ lack of skill. Commentators have noted such concerns as inherent limitations on the adversary system’s ability to expose and prevent ineffective advocacy. See Developments in the Law—Class Actions, 89 Harv.L.Rev. 1317, 1471 n.93 (1976) (collecting authorities). However, the lower court’s refusal to consider the admission as evidence ignores the rules’ requirement that “averments of fact under ‘Class Action Allegations’ shall be deemed admitted unless denied in conformity with [Pa.R.Civ.P.] 1029.” Pa.R.Civ.P. 1706. Courts may also infer the attorney’s adequacy from the pleadings, briefs, and other material presented to the court, or may determine these warrant further inquiry. Janicik v. Prudential Insurance Co. of America, supra. See Alessandro v. State Farm Mutual Automobile Insurance Co., 259 Pa.Superior Ct. 571, 581-82, 393 A.2d 973, 978 (1978), rev’d in part on other grounds, 487 Pa. 274, 409 A.2d 347 (1979). The lower court reasoned further that appellant’s attorney should be deemed inadequate because appellants had not affirmatively disproved the possibility of collusion or conflict of interest on their attorney’s part. As with conflicts of interest concerning the class representatives themselves, courts may consider the difficulty of proving a negative, and may generally presume that no conflict of interest exists unless otherwise demonstrated. Janicik v. Prudential Insurance Co. of America, supra; Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975). Moreover, “[u]ntil the contrary is demonstrated, courts will assume that members of the bar are skilled in their profession.” Doglow v. Anderson, 43 F.R.D. 472, 496 (E.D.N.Y.1968). Accord, Janicik v. Prudential Insurance Co. of America, supra; Piel v. National Semiconductor Corp., 86 F.R.D. 357 (E.D.Pa.1980). The record here corroborates appellee’s admission of appellants’ attorney’s ability to pursue this litigation. Nothing in the record suggests any collusion or conflict of interest. Accordingly, appellants’ counsel should be deemed adequate to protect the absent class members’ interests.

2. No Conflict of Interest

The lower court suggested many possible conflicts of interest or hidden collusive circumstances (such as family or financial ties to appellee) that appellants might have attempted to disprove.

Because of the difficulty of proving a negative, courts have generally presumed that no conflict of interest exists unless otherwise demonstrated, and have relied upon the adversary system and the court’s supervisory powers to expose and mitigate any conflict. Wetzel v. Liberty Insurance Co., [supra]; Gilchrist v. Bolger, 89 F.R.D. 402 (M.D.Ga.1981); Sol S. Turnoff Drug Distributors, Inc. v. N.V. Nederlandsche Combinatie Voor Chemische Industrie, [51 F.R.D. 227 (E.D.Pa.1970)]. See also Herbst v. Able, [4749 F.R.D. 286 (1970)] (no reason to suspect a conflict, those suggested are more academic than real).

3. Adequate Financial Resources

The lower court held that appellants were required to affirmatively prove both the details of their fee arrangement with counsel and their ability to repay counsel should the class lose. However, a class proponent’s burden at a class certification hearing is to present evidence of the facts from which the court can conclude that the certification requirements are met. A “prima facie showing shifts to the class opponent the burden of coming forward with contrary evidence, and absent such, would ordinarily satisfy the class proponent’s burden.” Janicik v. Prudential Insurance Co. of America, supra, 305 Pa.Superior Ct. at 130, 451 A.2d at 455. Accord, Bell v. Beneficial Consumer Discount Co., 241 Pa.Superior Ct. 192, 360 A.2d 681 (1976) (after remand). If the attorney for the class representatives is ethically advancing costs to representatives of a generally impecunious class, the adequate financing requirement will ordinarily be met. Janicik v. Prudential Insurance Co. of America, supra, 305 Pa.Super. at 137-38, 451 A.2d at 459, 460. The record establishes that appellants’ attorneys were ethically advancing costs, and that appellants were aware of and willing to bear their ultimate financial obligations. Appellee did not challenge class counsel’s ability to bear the initial costs, the ethicality of the financing arrangement, or otherwise raise a question that the absent class members interests could be endangered. Accordingly, we are satisfied of appellants’ adequacy as class representatives in light of this consideration.

4. Other Matters

The lower court held that appellant Haft’s residing in Benson, North Carolina, several hundred miles from the forum, precludes his being certified as a class representative. We disagree. Though a court may certainly consider factors impairing a purported class representative’s ability to maintain communication with counsel in determining the adequacy of representation, we cannot conclude that mere geographical distance from the forum should disqualify an otherwise qualified representative. The decision as to the adequacy of a representative must be made realistically in light of all the circumstances. Janicik v. Prudential Insurance Co. of America, supra. “[A] class representative need not be the best of all possible representatives but rather one that will pursue a resolution of the controversy with the requisite vigor and in the interest of the class.” Piel v. National Semiconductor Corp., supra at 366. Appellant Haft’s deposition testimony established his willingness to pursue this litigation and his considerable knowledge of the facts and circumstances underlying it. Accordingly, the record supports the propriety of certifying him as a class representative. Moreover, there are no geographic problems with the remaining appellants.

b. Fairness and Efficiency

Appellants contend also that the lower court erred in concluding that a class action would not provide “a fair and efficient method for adjudication of [this] controversy.” Pa. R.Civ.P. 1702(5). We agree. Several criteria must guide the court in determining the fairness and efficiency of purported class action. Pa.R.Civ.P. 1708. See generally Janicik v. Prudential Insurance Co. of America, supra. The lower court concluded that common questions predominated, the controversy was manageable as a class action, and that the forum was appropriate. See Pa.R.Civ.P. 1708(a)(1), (2), (4), (5). However, it held that the risks of inconsistent adjudication were minimal, and that the evidence was insufficient for it to determine whether the complexity of issues or expenses of litigation would deter separate actions, or if individual class members’ recoveries would be too small to justify the costs of the action. See id. 1708(a)(3), (6), (7). On balance, the court concluded that a class action was not a fair and efficient method of adjudication here. Upon our review of the record, we must agree with appellant that this conclusion was an abuse of discretion.

1. Risks of Inconsistent Adjudication

In Janicik v. Prudential Insurance Co. of America, we stated:

The court must consider the risks of inconsistent adjudication from both the plaintiff’s and defendant’s viewpoints. It must consider whether separate actions (1) would “confront the party opposing the class with cincompatible standards of conduct,” Pa.R.Civ.P. 1708(a)(3)(i), or (2) would, “as a practical matter,” be dispositive of the interests of absent potential class members or otherwise “substantially impair or impede their ability to protect their interests,” Pa.R.Civ.P. 1708(a)(3)(ii). Finding such risks is not essential to certifying the class, but “if they exist, they will be forceful arguments in support of the approval of the class action.” Explanatory Note to Pa.R. Civ.P. 1708.

305 Pa.Superior Ct. at 143, 451 A.2d at 462. Applying these principles, we note that separate actions by various class members for Sunday, overtime, and holiday pay could, as a practical matter, confront appellee with incompatible standards of conduct in compensating for essentially identical work if the courts happened to differ in their decisions. From the employees’ standpoint, an adverse decision on a separate action might needlessly deter other employees from asserting meritorious claims, which might then be lost to the statute of limitations. By the nature of the claim, employees’ potential recoveries are likely to vary considerably. Requiring the litigation to proceed as separate actions might effectively preclude those with the smallest claims from proceeding at all. If the underlying claim is meritorious, this circumstance could unfairly result in unjust enrichment to appellee and deprivation to many potential class members. Thus, the circumstances suggest enough risks of inconsistent adjudication to further suggest the fairness and efficiency of this class action.

2. Complexity of Issues or Expenses Deterring Separate Actions

The record reveals that the rate of pay for Sundays or holidays was about forty dollars per day, though appellants never proved the precise amount of their individual claims. They did introduce evidence of their financial status after years of service with appellee. The record indicates that, although the underlying wage claim is basically a question of contract interpretation, its resolution may require more than minimal discovery concerning appellee’s compensation policies, practices, and standards over several years. Additionally, no other litigation is pending on this question. These circumstances suggest a conclusion that the expenses of litigation and complexity of issues are such that the amounts of individual class members’ claims are generally insufficient to support separate actions. Pa.R.Civ.P. 1708(a)(6).

3. De Minimis Individual Recovery

The facts of record concerning rate of pay, when combined with reasonable inferences from appellants’ work-histories and testimony about appellee’s employment practices, indicate that the potential individual recoveries will be more than de minimis. All class members are present or former employees of appellee, and thus the costs of identifying and notifying them is unlikely to be unduly burdensome. Accordingly, the amounts which may be recovered by the individual class members will be large enough in relation to the expenses and effort of administering the action as to justify a class action. Pa.R.Civ.P. 1708(a)(7).

4. Conclusion

In evaluating the factors concerning fairness and efficiency, we note that this action arises from a continuing course of conduct by appellee in which the lower court found that common questions predominated in determining the parties respective rights. Courts have repeatedly held that class actions can be a fair and efficient method of resolving disputes concerning employment rights. See, e.g., Cross v. National Trust Life Insurance Co., 553 F.2d 1026 (6th Cir. 1977) (discrimination); Aguirre v. Bustos, 89 F.R.D. 645 (D.N.M.1981) (wages); Bartelson v. Dean Witter & Co., 86 F.R.D. 657 (E.D.Pa.1980) (discrimination). To subject the parties and the court system to the hazards and expenses of separate litigation in this context could eviscerate the purpose of the class action as a “procedural device designed to promote efficiency and fairness in handling large numbers of similar claims.” Lilian v. Commonwealth, 467 Pa. 15, 21, 354 A.2d 250, 253 (1976). See Scott v. Adal Corp., supra.

III.

For the foregoing reasons, the order of the court below is reversed and the matter is remanded for certification of the class and further proceedings consistent with this opinion.

So ordered.

      . Act of July 14, 1961, P.L. 637, § 1 et seq., as amended, 43 P.S. § 260.1 et seq.

      . An order denying class certification is a final and appealable order. Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975).


source: Caselaw Access Project

license: Public Domain

text:
    451 A.2d 451
    Margaret E. JANICIK, Appellant, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, a corporation.
    Superior Court of Pennsylvania.
    Argued April 30, 1981.
    Filed Oct. 15, 1982.
    Petition for Allowance of Appeal Denied Jan. 24, 1983.

      Michael P. Malakoff, Pittsburgh, for appellant.
    John H. Scott, Jr., Pittsburgh, for appellee.
    Before CERCONE, President Judge, and BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in denying her petition for class certification. We agree and, accordingly, reverse the order of the court below and certify the class.

Appellant is the primary beneficiary of two life insurance policies purchased from appellee by her late husband. The policies, issued in 1964 and 1966, contained identical “family-income benefit riders” providing that she would receive fifty dollars per month under each during the payment period. Each policy defined the payment period as “65 years less years of issue age.” Appellant’s husband died in 1969 at the age of 51. Appellant commenced this action seeking damages and declaratory relief on March 3, 1977, alleging, individually and as representative of a class of similarly situated beneficiaries, that the payment period should be determined by subtracting from 65 years the insured’s age at the times the policies were issued. According to her construction, her payment periods would be nineteen and seventeen years, respectively. Appellee contends, however, that the period should be determined by subtracting from 65 years the insured’s age at the time of death, so that appellant’s payment periods would both be fourteen years. Following the denial of appellee’s preliminary objections, the court below established a class action discovery timetable, held a class certification hearing, and subsequently denied appellant’s motion to certify the class. This appeal followed.

I.

Appellant contends that the lower court abused its discretion in holding that she had failed to meet her burden of proving each of the requirements and criteria for class certification. Pa.R.Civ.P. 1702, 1708, 1709. We agree. A lower court’s decision concerning class certification is a mixed finding of law and fact entitled to “appropriate deference” upon appeal. Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 235, 348 A.2d 734, 739 (1975), on remand, 241 Pa.Superior Ct. 192, 360 A.2d 681 (1976). “Trial courts are vested with broad discretion in determining definition of the class as based on commonality of the issues and the propriety of maintaining the action on behalf of the class.” Klemow v. Time, Inc., 466 Pa. 189, 197, 352 A.2d 12, 16 (1975). Accord, Sharkus v. Blue Cross of Greater Philadelphia, 494 Pa. 336, 342-43, 431 A.2d 883, 886 (1981); ABC Sewer Cleaning Co. v. Bell of Pennsylvania, 293 Pa.Superior Ct. 219, 225-226 n. 4, 438 A.2d 616, 619 n. 4 (1981). Consequently, a lower court’s order concerning class certification will not be disturbed on appeal unless the court failed to consider the requirements of the rules or abused its discretion in applying them. See, e.g., Sharkus v. Blue Cross of Greater Philadelphia, supra; Klemow v. Time, Inc., supra; Bell v. Beneficial Consumer Discount Co., supra. See also Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030 (5th Cir. 1981).

II.

It is beyond peradventure that the burden of proof in a class certification proceeding is upon the party seeking certification. Klemow v. Time, Inc., supra; Scott v. Adal Corp., 276 Pa.Superior Ct. 459, 419 A.2d 548 (1980). Accord, Zeidman v. J. Ray McDermott & Co., supra; Senter v. General Motors Corp., 532 F.2d 511 (6th Cir.), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976). See generally 1 H. Newberg, Newberg on Class Actions §§ 2075-90 (1977 & Supp.1981). The Pennsylvania Rules of Civil Procedure specify five requirements for class certification—numerosity, common questions of law or fact, typicality, adequacy of representation, and fairness and efficiency. Pa.R.Civ.P. 1702. They specify also certain criteria the court must consider in determining the last two of these requirements. Pa.R.Civ.P. 1708, 1709. The lower court held that appellant failed to meet her burden because she failed to “affirmatively show” facts establishing each of the requirements and criteria for class certification. Such a strict burden of proof is inconsistent with the policy of our Commonwealth that “decisions in favor of maintaining a class action should be liberally made.” Bell v. Beneficial Consumer Discount Co., 241 Pa.Superior Ct. 192, 205, 360 A.2d 681, 688 (1976) (after remand) (class suits enable the assertion of many meritorious claims that might not otherwise be litigated). See Esplin v. Hirschi, 402 F.2d 94, 101 (10th Cir. 1968) (“in a doubtful case . . . any error should be committed in favor of allowing the class action”). Moreover, courts in class certification proceedings regularly and properly employ reasonable inferences, presumptions, and judicial notice. See, e.g., Buchanan v. Brentwood Federal Savings & Loan Ass’n, 457 Pa. 135, 320 A.2d 117 (1974) (form contract raises common questions); Zeidman v. J. Ray McDermott & Co., supra (inferences of numerosity); Piel v. National Semiconductor Corp., 86 F.R.D. 357 (E.D.Pa.1980) (counsel presumed competent); Sol S. Turnoff Drug Distributors, Inc. v. N. V. Nederlandsche Combinatie Voor Chemische Industrie, 51 F.R.D. 227 (E.D.Pa.1970) (absence of conflict of interest presumed). When the underlying facts are not in dispute, the court may hold the burden more easily satisfied. Ablin v. Bell Telephone Co. of Pennsylvania, 291 Pa.Superior Ct. 40, 50 n. 5, 435 A.2d 208, 214 n. 5 (1981); Wolfson v. Solomon, 54 F.R.D. 584, 591 (S.D.N.Y.1972). The court should take into account the practical inability of the class representative to identify other class members when the class opponent is in control of and refuses to provide the names and addresses of absent class members. Garnet Valley School District v. Hanlon, 15 Pa.Commonwealth Ct. 476, 327 A.2d 215 (1974); Gatling v. Butler, 52 F.R.D. 389 (D.Conn.1971); Herbst v. Able, 47 F.R.D. 11 (S.D.N.Y.1969), amended, 49 F.R.D. 286 (1970). Finally, the stage of proceedings at which the class certification is to be initially determined and the trial court’s extensive supervisory powers over class actions obviate the need for a strict burden of proof. A court may not make the initial class action determination until after the close of pleadings to ensure that the class proponent is presenting a non-frivolous claim capable of surviving preliminary objections. Pa.R.Civ.P. 1707; Falkenhan v. Wise, 282 Pa.Superior Ct. 318, 326, 422 A.2d 1135, 1140 (1980). Throughout the class action, the court has extensive powers to protect absent class members and to ensure the efficient conduct of the action. See, e.g, Pa.R. Civ.P. 1710 (subclasses and limiting issues); 1713 (conduct of actions); 1714 (approving settlements); 1716 (approving counsel fees); Ablin, Inc. v. Bell Telephone Co. of Pennsylvania, supra (limiting class); McKenna v. Commonwealth, 54 Pa.Commonwealth Ct. 338, 421 A.2d 1236 (1980) (counsel fees). The court may alter, modify, or revoke the certification if later developments in the litigation reveal that some prerequisite to certification is not satisfied. Pa.R.Civ.P. 1710, 1711; Oas v. Commonwealth, 8 Pa.Commonwealth Ct. 118, 301 A.2d 93 (1973).

Once the class action allegations are well-pleaded, as was conceded here, the class proponent at the class certification hearing must present evidence of the underlying facts from which the court can conclude that the five class certification requirements are met. See Ablin, Inc. v. Bell Telephone Co. of Pennsylvania, supra; Zeidman v. J. Ray McDermott & Co., supra. Cf. Pa.R.Civ.P. 2329 (petition to intervene) (also requires hearing, intervenor’s burden met upon prima facie showing). Because the requirements for class certification are closely interrelated and overlapping, the class proponent need not prove separate facts supporting each; rather, her burden is to sufficiently establish those underlying facts from which the court can make the necessary conclusions and discretionary determinations. See, e.g., Ablin, Inc. v. Bell Telephone Co. of Pennsylvania, supra 291 Pa. Superior Ct. at 40, 435 A.2d at 212 (typicality requirement closely akin to commonality and adequacy of representation); Piel v. National Semiconductor Corp., supra (same). Cf. 1 H. Newberg, Newberg on Class Actions, supra §§ 2075-90. Though this initial burden is not heavy, it requires more than mere conjecture, and conclusory allegations, especially if facts of record tend to contradict the propriety of the class action. Luitweiler v. Northchester Corp., 456 Pa. 530, 319 A.2d 899 (1974); Valentino v. Howlett, 528 F.2d 975 (7th Cir. 1976); Rossin v. Southern Union Gas Co., 472 F.2d 707 (10th Cir. 1973). Well-pleaded class action allegations, if admitted by the class opponent, may be considered as evidence at the class certification hearing. Pa.R.Civ.P. 1706. The prima facie showing shifts to the class opponent the burden of coming forward with contrary evidence, and absent such, would ordinarily satisfy the class proponent’s burden. Bell v. Beneficial Consumer Discount Co., supra; Wolfson v. Solomon, supra. Accord, McMonagle v. Allstate Insurance Co., 227 Pa.Superior Ct. 205, 233, 324 A.2d 414, 428 (1974) (HOFFMAN, J., dissenting) (upon well-pleaded complaint setting forth class action elements “with some precision” class action should be presumed valid until proven otherwise), citing Penn Galvanizing Co. v. Philadelphia, 388 Pa. 370, 130 A.2d 511 (1957). If there is an actual conflict on an essential fact, the class proponent bears the risk of non-persuasion.

III.

Rule 1702 of the Pennsylvania Rules of Civil Procedure states the five prerequisites to class certification:

One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

1. Numerosity

Appellant purports to represent a class of beneficiaries of “family-income benefit” riders issued by appellee. To be eligible for certification, she must establish that the class is “so numerous that joinder of all members is impracticable.” Pa.R.Civ.P. 1702(1). Whether the number is so large as to make joinder impracticable is dependent “not upon any arbitrary limit, but rather upon the circumstances surrounding [each] case.” 3B J. Moore, Federal Practice and Procedure, § 23.05 (19). In determining numerosity, the court should examine “whether the number of potential individual plaintiffs would pose a grave imposition on the resources of the court and an unnecessary drain on the energies and resources of the litigants.” Temple University of the Commonwealth System of Higher Education v. Pennsylvania Department of Public Welfare, 30 Pa.Commonwealth Ct. 595, 603, 374 A.2d 991, 996 (1977). Accord, ABC Sewer Cleaning Co. v. Bell of Pennsylvania, supra 291 Pa. Superior Ct. at 40 n. 6, 438 A.2d at 621 n. 6; Ablin, Inc. v. Bell Telephone Co. of Pennsylvania, supra 291 Pa.Superior Ct. at 40 n. 5, 435 A.2d at 214 n. 5. The class representative need not plead or prove the number of class members so long as she is able to define the class with some precision and affords the court with sufficient indicia that more members exist than it would be practicable to join. Zeidman v. J. Ray McDermott & Co., supra. Although appellant was unable to prove the number of class members she did present evidence which, together with reasonable inferences, would warrant a conclusion that the class was sufficiently numerous. The record reveals the following facts: Appellee had sold over five million life insurance policies, at least 120,000 of which contained some form of a monthly benefit provision. The particular form sold to appellant’s husband was optional to all the policies and was available at all 136 of appellee’s Pennsylvania agencies. Appellee’s seven other forms contain virtually identical definitions of the payment period. Appellee admittedly interprets all of them similarly. Appellee controls the names and addresses of the policy-holders and their beneficiaries, but its mode of record-keeping does not readily permit a determination of precisely how many policies contain a particular form of the rider. See Wolfson v. Solomon, supra at 591 (“court may assume sufficient numerousness [sic] where reasonable to do so, in absence of a contrary showing by the class opponent”); Gatling v. Butler, supra at 392 (class opponent controlled records and state confidentiality statute restricted disclosure; class certified). Accordingly, appellant has satisfied the numerosity requirement.

2. Common Questions of Law or Fact (Commonality)

Appellant must establish that her claim presents “questions of law or fact common to the class.” Pa.R.Civ.P. 1702(2). The existence of individual questions essential to a class member’s recovery is not necessarily fatal to the class, and is contemplated by the rules. See Pa.R.Civ.P. 1708(a)(1) (whether common questions “predominate” over individual ones), 1710 (power to limit issues); Klemow v. Time, Inc., supra 466 Pa. at 197 n. 17, 352 A.2d at 16 n. 17 (class members may also proceed separately with individual claims). Common questions will generally exist if the class members’ legal grievances arise out of the “same practice or course of conduct” on the part of the class opponent. Ablin, Inc. v. Bell Telephone Co. of Pennsylvania, supra 291 Pa.Superior Ct. at 40, 435 A.2d at 213. Claims arising from interpretations of a form contract generally give rise to common questions. See Ross v. Shawmut Development Corp., 460 Pa. 328, 334, 333 A.2d 751, 753 (1974); Buchanan v. Brentwood Federal Savings & Loan Ass’n, supra, 457 Pa. at 160, 320 A.2d at 131 (form mortgages). Cf. Herbst v. Able, supra (reliance on written statements a common question). “[CJlass actions may be maintained even when the claims of members of the class are based on different contracts” so long as “the relevant contractual provisions raise common questions of law and fact and do not differ materially.” Sharkus v. Blue Cross of Greater Philadelphia, supra 494 Pa. at 343, 431 A.2d at 886. Accord, Buchanan v. Brentwood Federal Savings & Loan Ass’n, supra. If later refinement of the issues reveals that seemingly similar contractual provisions merit differing interpretations, the court may create appropriate subclasses. Pa.R.Civ.P. 1710(c)(2); Sharkus v. Blue Cross of Greater Philadelphia, supra. Appellant’s claim on behalf of the class is limited to the interpretation of the language governing the duration of benefits. All eight riders have virtually identical language defining the duration of benefits, and appellee admits applying a similar interpretation to all of them. Under these circumstances, we are satisfied that there are questions of law and fact common to the class of beneficiaries.

3. Typicality

Appellant must show that her “claims or defenses ... are typical of the claims or defenses of the class.” Pa.R.Civ.P. 1702(3). The .typicality requirement is closely akin to the requirements of commonality and the adequacy of representation. Ablin, Inc. v. Bell Telephone Co. of Pennsylvania, supra 291 Pa.Superior Ct. at 40, 435 A.2d at 212. Its purpose is to determine whether the class representative’s overall position on the common issues is sufficiently aligned with that of the absent class members to ensure that her pursuit of her own interests will advance those of the proposed class members. Id.; Piel v. National Semiconductor Corp., supra. Accord, Luitweiler v. Northchester Corp., supra 456 Pa. at 534, 319 A.2d at 902 (must appear that relief sought beneficial to all class members); Penn Galvanizing Co. v. Philadelphia, supra 388 Pa. at 378, 130 A.2d at 515 (same). Of the two reasonable interpretations of the contract language in dispute, appellant advances that affording the greater benefits. Her self-interest is thus squarely aligned with that of the absent members of the class of beneficiaries. Cf. Pincus v. Mutual Assurance Co., 457 Pa. 94, 98, 321 A.2d 906, 909 (1974) (both reasonable positions represented in class suit). Appellee argues, however, that appellant is atypical because her deposition testimony reveals her mistaken belief that she may win lifelong benefits in accordance with a salesman’s alleged oral representations. Contrary to appellee’s assertion, this possible alternative claim does not dilute her interest in pursuing a favorable interpretation of the written contract on behalf of herself and the class. See Pa.R.Civ.P. 1710(c)(1) (court may limit class action to particular issues or forms of relief). Accordingly, appellant has satisfied the typicality requirement.

4. Adequacy of Representation

For the class to be certified, the court must conclude that appellant “will fairly and adequately assert and protect the interests of the absent class members.” Pa.R.Civ.P. 1702(4). To make this determination the court must consider: (1) whether the attorney for the representative party will adequately protect the class’s interests; (2) whether the representative parties have a conflict of interest in maintaining the action; (3) whether the representative parties “have or can acquire” adequate financial resources; and (4) “other matters.” Pa.R.Civ.P. 1709.

Preliminarily, “[a] litigant must be a member of the class which he or she seeks to represent at the time the class is certified by the . . . court” in order to ensure due process to the absent class members and to satisfy requirements of standing. Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct. 553, 559, 42 L.Ed.2d 532, 542 (1975). See McMonagle v. Allstate Insurance Co., supra, 460 Pa. at 167, 331 A.2d at 472 (appellant never eligible for claimed benefits); Alessandro v. State Farm Mutual Insurance Co., 259 Pa.Superior Ct. 571, 579-82, 393 A.2d 973, 977-78 (1978) (appellant not member of defined class), rev’d in part on other grounds, 487 Pa. 274, 282 n. 11, 409 A.2d 347, 351 n. 11 (1979). Appellant is concededly eligible for benefits under the policies in question, and thus clearly a member of the class she seeks to represent. She is thus potentially an adequate class representative.

a. Attorney’s Adequacy

Generally, “[u]ntil the contrary is demonstrated, courts will assume that members of the bar are skilled in their profession.” Dolgow v. Anderson, 43 F.R.D. 472, 496 (E.D.N.Y.1968). Accord, Piel v. National Semiconductor Corp., supra. Courts may also infer the attorney’s adequacy from the pleadings, briefs, and other material presented to the court, or may determine these warrant further inquiry. See Alessandro v. State Farm Mutual Automobile Insurance Co., supra, 259 Pa. Superior Ct. at 581-82, 393 A.2d at 978; Moss v. Lane Co., 471 F.2d 853, 855 (4th Cir. 1973). Counsel’s adequacy was not disputed, and the record suggests only high standards of professionalism in their advocacy. Accordingly, appellant’s counsel should be considered adequate to protect the absent class members’ interests.

b. No Conflict of Interest

The lower court suggested many possible conflicts of interest or hidden collusive circumstances (such as family or financial ties to appellee) that appellant might have attempted to disprove. Because of the difficulty of proving a negative, courts have generally presumed that no conflict of interest exists unless otherwise demonstrated, and have relied upon the adversary system and the court’s supervisory powers to expose and mitigate any conflict. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); Gilchrist v. Bolger, 89 F.R.D. 402 (M.D.Ga.1981); Sol S. Turnoff Drug Distributors, Inc. v. N.V. Nederlandsche Combinatie Voor Chemische Industrie, supra. See also Herbst v. Able, supra (no reason to suspect a conflict, those suggested are more academic than real). Nothing in this record suggests the slightest conflict of interest in appellant’s maintaining this action.

c. Adequate Financial Resources

“[T]o assure that the interests of the class will not be harmed” the court must consider whether the representative parties “have or can acquire adequate financial resources” to prepare the litigation and carry it to completion. Pa.R. Civ.P. 1709(3); Explanatory Note to Pa.R.Civ.P. 1709. Appellant’s counsel submitted an affidavit that it would advance all costs of the litigation, but that appellant would remain ultimately liable for them. There was no dispute as to counsel’s ability to advance the needed funds. The lower court determined that appellant would be unable to repay counsel if unsuccessful. Initial funding by the class representative’s attorney is not uncommon in class suits, see, eg., Sanderson v. Winner, 507 F.2d 477 (10th Cir. 1974), cert. denied, 421 U.S. 914, 95 S.Ct. 1573, 43 L.Ed.2d 780 (1975); Sayre v. Abraham Lincoln Federal Savings & Loan Ass’n, 65 F.R.D. 379 (E.D.Pa.1974) amended, 69 F.R.D. 117 (M.D.Pa. 1975), nor is it barred by the Code of Professional Responsibility, see Code of Professional Responsibility, DR 5-103(B), EC 5-1, 5-7, 5-8; cf. Selby v. Brown, 291 Pa.Superior Ct. 463, 437 A.2d 767 (1981). Some courts have held that theorizing on whether the representative party will repay the class attorney if the class loses is irrelevant to the sole question of whether the interests of the class are being adequately protected. Sanderson v. Winner, supra (barring discovery into representative’s financial status when counsel agrees to advance costs of litigation); Sayre v. Abraham Lincoln Federal Savings & Loan Ass’n, supra (same). Others, however, have held that considerations analogous to the Code of Professional Responsibility’s prohibiting an attorney from maintaining an action—to prevent the attorney from acquiring such a financial stake in the litigation that he may be induced to compromise his client’s interests by settling the action prematurely—apply also to protect the absent class members’ interests. See, e.g., National Auto Brokers Corp. v. General Motors Corp., 376 F.Supp. 620 (S.D.N.Y. 1974) aff’d 572 F.2d 953 (2d Cir. 1978), cert. denied 439 U.S. 1072, 99 S.Ct. 844, 59 L.Ed.2d 38 (1979); Ralston v. Volkswagenwerk A.G., 61 F.R.D. 427 (W.D.Mo.1973). See also P.D.Q., Inc. v. Nissan Motor Corp., 61 F.R.D. 372 (S.D.Fla. 1973) (limiting class size). The dangers of the potential conflict of interest arising from counsel’s financing a class suit, however, must be viewed realistically in light of the circumstances and the procedural safeguards inherent in class suits. Overly strict financing requirements would limit the class action to wealthy litigants, contrary to its purposes. Bartelson v. Dean Witter & Co., 86 F.R.D. 657 (E.D.Pa.1980). Cf. Pa.R.Civ.P. 1708(6) (individual class members’ inability to bring separate actions relevant to class certification decision). A lack of funding by the representative plaintiff, without more, is not sufficient to warrant denial of class certification. Rode v. Emery Air Freight Corp., 76 F.R.D. 229 (W.D.Pa.1977), citing 3B J. Moore, supra § 23.07 (adequacy of representation depends on all circumstances). When a member of a generally impecunious group advances a class action for relatively small individual claims, denying the class action for lack of financial resources might “result in a denial of any recovery to members of the class.” Explanatory Note to Pa.R.Civ.P. 1709. The danger of premature settlement arising from an attorney’s advancing costs is minimized in class actions, however, because the court must approve any settlement agreement or award of attorney’s fees, Pa.R.Civ.P. 1716, 1718; McKenna v. Commonwealth, supra, and can take appropriate action if counsel’s representation proves inadequate, Pa.R.Civ.P. 1713. See Bartelson v. Dean Witter & Co., supra; Chevalier v. Baird Savings Ass’n, 72 F.R.D. 140 (E.D.Pa.1976); Developments in the Law—Class Actions, 89 Harv.L.Rev. 1317, 1622-23 (1976). Under the circumstances, particularly the nature of the class and appellant’s counsel’s agreement and apparent ability to ethically advance costs, we hold that appellant’s own limited financial resources are not necessarily fatal to her adequacy as a class representative.

d. Other Matters

The lower court held that appellant’s lack of personal knowledge about the lawsuit, as indicated by her apparent mistaken belief that the action included claims based on a salesman’s oral representations, rendered her unable to adequately supervise or assist class counsel, and thus an inadequate class representative. “[A] class representative need not be the best of all possible representatives but rather one that will pursue a resolution of the controversy with the requisite vigor and in the interest of the class.” Piel v. National Semiconductor Corp., supra at 366. Courts should not impose unrealistically high burdens of knowledge or ability to supervise counsel, for to do so would render the class action an impotent tool or deny it to those most in need. See, e.g., Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 86 S.Ct. 845, 15 L.Ed.2d 807 (1966) (one uneducated in economics adequate class representative in antitrust action); Aguirre v. Bustos, 89 F.R.D. 645 (D.N.M.1981) (uneducated laborers adequate to represent class in employment wages claim); Chevalier v. Baird Savings Ass’n, supra (mortgagors with sketchy idea of lending practices adequate). Evidence of dishonesty, bad character, disregard of duties, abdication to the unfettered discretion of class counsel, or of having been solicited to be class representative by counsel who are conducting the suit for their own gain, will all weigh against the named party’s adequacy as a representative. See Charal v. Andes, 81 F.R.D. 99 (E.D.Pa.1979); Hernandez v. United Fire Insurance Co., 79 F.R.D. 419 (N.D.Ill.1978); Chevalier v. Baird Savings Ass’n, supra. In contrast, evidence of honesty, willingness to pursue the matter, knowledge of facts underlying the action, understanding of the essence of the legal claim, a desire to right a perceived wrong, or the hope of recovery will all support a named party’s adequacy as a representative. Aguirre v. Bustos, supra; Chevalier v. Baird Savings Ass’n, supra. Appellant’s deposition testimony displayed she had some confusion about the nature of this action. Nonetheless she also indicated her first-hand knowledge of the facts underlying the action, her understanding that the essence of the lawsuit was to seek a longer payment period, and her hope for recovery and willingness to tenaciously pursue it. Accordingly, we conclude that appellant sufficiently demonstrated her adequacy as a class representative.

5. Fairness and Efficiency of Class Action

The final general requirement for class certification is that a class action provide “a fair and efficient method for adjudication of the controversy.” Pa.R.Civ.P. 1702(5). Several criteria must guide the court in this determination. Pa.R.Civ.P. 1708. They are not exclusive and their importance may vary according to the circumstances. Id.; Katz v. Carte Blanche Corp., 496 F.2d 747 (3d Cir. 1974) cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1975). In determining fairness and efficiency, the court must balance the interests of the litigants, present and absent, and of the court system. See ABC Sewer Cleaning Co. v. Bell of Pennsylvania, supra, 291 Pa.Superior Ct. at 227, 438 A.2d at 621; McMonagle v. Allstate Insurance Co., supra, 227 Pa. Superior Ct. at 233, 324 A.2d at 428 (HOFFMAN, J., dissenting). Courts should not strike this balance so harshly as to “eviscerate the purposes of the class action device.” Scott v. Adal Corp., supra, 276 Pa.Superior Ct. at 466, 419 A.2d at 552. Unlike in federal class action litigation, class actions brought under the Pennsylvania rules need not be “superior” to alternative methods. Compare Fed.R.Civ.P. 23(b) with Pa.R.Civ.P. 1702(5). See Explanatory Note to Pa.R.Civ.P. 1708. Rather, courts should strike the balance mindful that the class action is inherently a “procedural device designed to promote efficiency and fairness in handling large numbers of similar claims.” Lilian v. Commonwealth, 467 Pa. 15, 21, 354 A.2d 250, 253 (1976).

a. Common Questions Predominate

“[WJhether common questions of law or fact predominate over individual questions,” Pa.R.Civ.P. 1708(a)(1), is closely akin to the requirement that sufficient common questions exist to support the class action, Pa.R.Civ.P. 1702(2). Individual questions, even those essential to recovery, are not necessarily fatal to the class action. See, e.g., Cross v. National Trust Life Insurance Co., 553 F.2d 1026 (6th Cir. 1977). It is well established, for example, that individual questions as to the amount of damages do not preclude a class action. Sharkus v. Blue Cross of Greater Philadelphia, supra; Ross v. Shawmut Development Co., supra; ABC Sewer Cleaning Co. v. Bell of Pennsylvania, supra. The common question of the interpretation of the form contract is critical to the recovery sought here. Although a resolution in favor of the class would leave individual questions of eligibility and amount of damages, a determination in favor of appellee could moot those individual questions. Consequently, we are satisfied that the common questions here predominate, and thus suggest the fairness and efficiency of this class action.

b. Manageable Controversy

In determining the fairness and efficiency of a class action the court must consider “the size of the class and the difficulties likely to be encountered in the management of the action as a class action.” Pa.R.Civ.P. 1708(a)(2). Problems of administration alone, however, ordinarily should not justify the denial of an otherwise appropriate class action, for to do so would contradict the policies underlying this device. Yaffe v. Powers, 454 F.2d 1362, 1365 (1st Cir. 1972). Accord, Explanatory Note to Pa.R.Civ.P. 1708 (manageability criterion should not be employed as an “escape hatch” to defeat otherwise proper class action); Manual for Complex Litigation, § 1.43 (1981). Rather, the court should rely on the ingenuity and aid of counsel and upon its plenary authority to control the action to solve whatever management problems the litigation may bring. Buchanan v. Brentwood Federal Savings & Loan Ass’n, supra, 457 Pa. at 161, 320 A.2d at 131; In re Antibiotic Antitrust Actions, 333 F.Supp. 278, 282-83 (S.D.N.Y.1971); Newberg, supra, § 2100. The evidence here indicated that the names, addresses, and insurance records of all potential class members were centrally stored by appellee. Consequently, management problems unique to the class procedure would not be unduly burdensome in this action.

c. Risks of Inconsistent Adjudications

The court must also consider the risks of inconsistent adjudication from both the plaintiff’s and defendant’s viewpoints. It must consider whether separate actions (1) would “confront the party opposing the class with incompatible standards of conduct,” Pa.R.Civ.P. 1708(a)(3)(i), or (2) would, “as a practical matter,” be dispositive of the interests of absent potential class members or otherwise “substantially impair or impede their ability to protect their interests,” Pa.R.Civ.P. 1708(a)(3)(ii). Finding such risks is not essential to certifying the class, but “if they exist, they will be forceful arguments in support of the approval of the class action.” Explanatory Note to Pa.R.Civ.P. 1708. The court below held that the principle of stare decisis and proper application of fundamental contract principles would eliminate any risks of inconsistent adjudications. Such reasoning ignores the rule’s exhortation to address this consideration “as a practical matter.” Pa.R.Civ.P. 1708(a)(3)(ii). Courts may, and often do, differ in resolving similar questions presenting issues of law or fact. The precedential effect of a decision, even if incorrect, may have a chilling effect on the assertion of similar claims, and, combined with the expiring of statutes of limitation, may often “substantially impair or impede” potential litigants’ ability to protect their interests. Id. Moreover, as with the related criteria concerning the complexity and expenses of litigation, Pa.R. Civ.P. 1708(a)(6), the court may consider the parties’ circumstances and respective ability to pursue separate actions. Cf. Scott v. Adal Corp., supra; Hohmann v. Packard Instrument Co., 399 F.2d 711 (7th Cir. 1968). Appellee conducts business statewide and may thus be subject to inconsistent standards of conduct. Many class members, especially those with smaller claims, may be unable to afford the costs of protecting their interest through separate actions. All claims arise from interpretation of virtually identical contract language, so that even a small risk of inconsistent adjudications is unnecessary. The class action, when compared to separate actions under this criterion, affords the speedier, and more comprehensive statewide determination of the claim, and thus, the better means to ensure recovery if the claim proves meritorious or to spare appellee repetitive piecemeal litigation if it does not.

d. Complexity of Issues or Expenses Deterring Separate Actions

The court must consider whether the “complexity of issues” or “expenses of litigation” are so burdensome that, upon comparison, the amounts of individual class members’ claims “are insufficient to support separate actions.” Pa.R. Civ.P. 1708(a)(6). Appellant’s claim is for approximately $4,000. Resolving the underlying contract interpretation issue will not require expert witnesses or extensive discovery. From the nature of the question in dispute, it can be inferred that the amounts of class members’ claims will vary greatly. This criterion, like the others, must be considered realistically in light of the circumstances. To prevail on individual claims, class members would be forced to retain separate counsel and pay court costs, thus duplicating expenses. Moreover, small, but meritorious, claims may go unlitigated. Further, there is a possibility that appellee would simply settle appellant’s individual claims, preventing an adverse decision on the merits, and thereby precluding effective relief to many. See Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) (defendant attempts to settle representative plaintiff’s individual claim after denial of class certification). The mere possibility that class members may maintain individual actions is not necessarily fatal to class certification. See Scott v. Adal Corp., supra (possibility of individual challenges to sheriff’s sales not preclude class action). In many cases, “[t]o permit a defendant to contest liability with each claimant in a single, separate suit would . . . give defendants an advantage which would be almost equivalent to closing the door of justice to all small claimants. This is what we think the class suit procedure was to prevent.” Hohmann v. Packard Instrument Co., supra at 715. Forcing multiple individual claims might not only be potentially unfair to the litigants, but it could prove inefficient, for if the numerous beneficiaries did eventually bring individual suits it could unnecessarily clog court dockets with repetitive litigation. Accordingly, despite the relative simplicity of the substantive issue and seeming inexpensiveness of adjudicating its merits, a review of all the circumstances under this criterion indicates that a class action is a fair and efficient method of adjudicating this controversy.

e. De Minimis Individual Recovery

The court must consider “whether it is likely that the amount which may be recovered by the individual class members will be so small in relation to the expenses and effort of administering the action as not to justify a class action.” Pa.R.Civ.P. 1708(a)(7). The nature of the claim is such that, should the class prevail, its members would generally receive more than trivial sums. Moreover, it is unlikely that the costs of requisite notice to class members would be disproportionate to the size of their claims. Consequently, this action may yield sufficient benefits to the class members to justify its use of judicial resources.

f. Opponent’s Conduct Generally Applicable

Because appellant seeks declaratory relief, the court must also consider “whether the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making final equitable or declaratory relief appropriate with respect to the class.” Pa.R.Civ.P. 1708(b)(2). Appellee concedes that it applies a similar interpretation to all eight insurance riders in question, thus satisfying this criterion.

IY.

For the foregoing reasons we are satisfied that this case is appropriate for disposition as a class action and, accordingly, we reverse the court below and enter the following order:

1. Appellant, MARGARET E. JANICIK, is hereby certified as the representative of a class defined as followed: All persons who after March 3, 1971 and before the entry of final judgment in this case received, were entitled to receive, or become entitled to receive benefits from appellee, PRUDENTIAL INSURANCE COMPANY, pursuant to family-income benefit provisions on forms B 132, B 135, G 132 P, E 132 P, G 135 P, G 139 P, G 171 P, and E 183 P, or any substantially similar form, or policy schedule providing for benefits to be paid for a period computed as “65 [or some other number of] years less years of issue age.”

2. Exclusion and Inclusion.

(a) All Pennsylvania residents who are members of the class defined above shall be included in this action unless such member files of record a written election to be excluded from the class.
(b) All members of the class defined above who are not Pennsylvania residents shall be excluded from this action unless such member files of record a written election to be included in the class.

3. The court below shall approve the notice to be sent to each category of members defined in paragraphs 1 and 2 above, Pa.R.Civ.P. 1712, and shall specify the date for filing the appropriate election to be included in or excluded from the class.

4. This Order is without prejudice to the lower court’s power to alter, amend, or supplement it as may be appropriate under the circumstances from time to time, Pa.R.Civ.P. 1710, 1713.

5. The matter is remanded for proceedings consistent with this Opinion.

      . An order denying class certification is a final and appealable order. Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975).

      . Under Pa.R.Civ.P. 1710, 1711, the lower court is required to set forth findings of fact, conclusions of law, and appropriate discussion in a written opinion when certifying, refusing to certify, or revoking a class certification. The better practice, to facilitate management of the action and to ensure meaningful appellate review, is to set forth each of the elements separately as per the form for adjudication in equity under Pa.R.Civ.P. 1517(a). Explanatory Note to Pa.R.Civ.P. 1710.

      . Federal precedent is instructive in construing Pennsylvania’s class action rules. See McMonagle v. Allstate Insurance Co., 460 Pa. 159, 167, 331 A.2d 467, 471-72 (1975). Many provisions of Pennsylvania’s revised class action rules have been taken virtually verbatim from the federal rules; other provisions are derived from federal case law. Explanatory Note to Pa.R.Civ.P. 1701. Federal class action precedent is not, however, binding upon our courts. Bell v. Benefi

        cial Consumer Discount Co., supra 465 Pa. at 231 n. 9, 348 A.2d at 737 n. 9.

      . Appellant’s not accepting appellee’s offer that she could manually search its flies under a protective order does' not prejudice her petition for class certification, because she submitted sufficient other evidence of numerosity. But cf. Reichlin v. Wolfson, 47 F.R.D. 537 (S.D.N.Y.1969) (that class representative did not avail himself of reasonable discovery opportunity a factor in denying class certification).

      . If, however, the challenged conduct affects the potential class members in such divergent ways, aggrieving some, benefitting others, that their interests become antagonistic to each other, commonality may not exist. Samuels v. Smock, 54 Pa.Commonwealth Ct. 597, 422 A.2d 902 (1980) (retirement policy); William Goldman Theaters, Inc. v. Paramount Film Distributing Corp., 49 F.R.D. 35 (E.D.Pa.1969) (film distribution policy). See note 6 infra.

      . Typicality might not be satisfied when the relief sought will benefit some proposed class members and harm others, Samuels v. Smock, supra; William Goldman Theaters, Inc. v. Paramount Film Distributing Corp., supra, or when the class representative has or is pursuing some other interest divergent from or adverse to the interests of the absent class members. Penn Galvanizing Co. v. Philadelphia, supra (representative’s interest adverse to absent class members); Samuels v. Smock, supra (representative’s eligibility for the subject retirement benefits being separately litigated and his interest in pension fund not shown to be substantially similar to the absent class members’); Puharich v. Borders Electronics Co., CCH Fed. Sec. p. 92, 160 (class action on behalf of shareholders clearly of secondary importance to representatives’ unique derivative claims). But cf. Marshall v. Holiday Magic, Inc., 550 F.2d 1173, 1177 (9th Cir. 1977) (class of distributors in pyramid scheme against parent company) (that some class members have claims against each other does not detract from their identical legal and factual claim against the class opponent).

      . Courts may, however, entertain a class action even if the representative’s claim is rendered moot by the passage of time or an attempted separate settlement, see McMonagle v. Allstate Insurance Co., supra, 460 Pa. at 168-69, 331 A.2d at 472; cf. Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). If the original representative is decertified, courts may also keep the action pending to permit the remaining class members to seek another representative. Alessandro v. State Farm Mutual Automobile Insurance Co., supra, 487 Pa. at 282 n. 11, 409 A.2d at 351 n. 11.

      . Moreover, several courts have taken notice of appellant’s counsel’s adequacy to litigate class actions. See, e.g., Stavrides v. Mellon Bank, N.A., 69 F.R.D. 424, 430 (W.D.Pa.1975); Mason v. Calgon Corp., 63 F.R.D. 98, 107 (W.D.Pa.1974); Alessandro v. State Farm Mutual Insurance Co., supra, 487 Pa. at 282, 409 A.2d at 351.

      . Courts have repeatedly held it a disqualifying conflict of interest for the representative party to serve in a dual capacity as both class representative and class counsel, Murphy v. Harleysville Mutual Insurance Co., 282 Pa.Superior Ct. 244, 422 A.2d 1097 (1980), cert. denied, 454 U.S. 896, 102 S.Ct. 395, 70 L.Ed.2d 211 (1981). Nor in most circumstances may the class representative be an associate or employee of the class counsel. Kramer v. Scientific Control Corp., 534 F.2d 1085 (3d Cir. 1976); Charal v. Andes, 81 F.R.D. 99 (E.D.Pa. 1979); Hernandez v. United Fire Insurance Co., 79 F.R.D. 419 (N.D. Ill.1978).

      . Some courts have held maintenance of class suits by legal aid societies or legal services organizations to be less strictly limited by the Code of Professional Responsibility than would be such funding by private attorneys. Aguirre v. Bustos, 89 F.R.D. 645 (D.N.M.1981); Brame v. Ray Bills Finance Corp., 85 F.R.D. 568 (N.D.N.Y.1979).

      . “It has been said that the entire ‘historic mission’ of the class action is to take ‘care of the smaller guy.’ Frankel, Amended Rule 23 from a Judge’s Point of View, 32 Antitrust L.J. 295, 299 (1966).”
        McMonagle v. Allstate Insurance Co., supra, 227 Pa.Superior Ct. at 213 n. 12, 324 A.2d at 424 n. 12 (HOFFMAN, J. dissenting).

      . We are cognizant that an attorney’s advancing litigation costs may raise different inferences about adequacy of representation when the representative party is able but unwilling to bear litigation costs. See, e.g., Charal v. Andes, supra; Chevalier v. Baird Savings Ass’n, supra.

      . Thus Pennsylvania courts need not speculate whether a “test case” might be a better method of resolving a given dispute. Cf., Katz v. Carte Blanche Corp., supra (considering whether test case would be superior to class action). However, the existence of a readily available, inexpensive, and efficient alternative method of obtaining the relief may be a factor militating against a class action. Samuels v. Smock, supra.

      . In determining fairness and efficiency, the court must consider “the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues.” Pa.R.Civ.P. 1708(a)(4). This is a criterion of limited relevance, applicable primarily to cases in which many similar claims are filed, as after a mass tort, or in which competing class actions have been initiated. Explanatory Note to Pa.R.Civ.P. 1708. At the time of the certification hearing, no other actions had been filed concerning this question. The court must also consider “whether the particular forum is appropriate for the litigation of the claims of the entire class.” Pa.R.Civ.P. 1708(a)(5). Our Supreme Court has held that a common pleas court may exercise jurisdiction over absent class members who are Pennsylvania residents, as well as those non-residents who submit themselves to its jurisdiction. Klemow v. Time, Inc., supra 466 Pa. at 197 n. 15, 352 A.2d at 16 n. 15. See Pa.R.Civ.P. 1711. Accordingly, Allegheny County common pleas court is an appropriate forum for this litigation.

      . Appellee asserts in a reargument petition that the parties had stipulated by exchange of letters that appellant sought only to represent a class of Pennsylvania residents. The letters do not appear in the record before us. Limiting this class to Pennsylvania residents would not change our analysis or decision regarding numerosity or the propriety of this class action. If appellant seeks only to represent Pennsylvania residents, or if the parties have indeed stipulated, the lower court should be informed and requested to modify this order accordingly. See Order ¶ 4, infra.


author: CAVANAUGH, Judge:

text:
    451 A.2d 464
    Lawrence GOODMAN and Rosalyn Goodman, his wife, Appellants, v. PATE CONSTRUCTION, INC., Clarence W. Pate and Sigrid V. Pate, his wife, and Northeastern Bank of Pennsylvania, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1982.
    Filed June 18, 1982.

      Thomas J. Newell, Hawley, for appellants.
    Patrick M. Connolly, Scranton, for appellees.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   CAVANAUGH, Judge:

Lawrence Goodman and Rosalyn Goodman, the appellants herein, entered into a construction agreement with Pate Construction, Inc. dated November 28, 1977, for the construction of a new home. The cost of the house was to be $43,404.00. The agreement stated in Paragraph Second: “The owner does hereby promise and agree to and with the said contractor that owner shall and will, in consideration of the covenants and agreements being performed and kept by the contractor, as specified, well and truly pay, or cause to be paid unto the contractor ...” the sum of $43,404.00 in accordance with a pay-out schedule. This paragraph further provided that “Owner and Contractor agree to modify this pay-out schedule if required by any lending institution to conform with that institution’s pay-out schedule.”1 In February, 1978, the Northeastern Bank of Pennsylvania, the appellee herein, loaned the appellants $49,000.00 for the purpose of financing the construction of their home.

Construction of the home commenced in February, 1978. The Northeastern Bank made payments to Pate Construction, Inc. in March, 1978, July, 1978, and two payments in August, 1978, totalling approximately $33,921.00. This amount represented about eighty per cent payable by the appellants to Pate Construction, Inc. under their contract. At the end of August, 1978, Pate Construction, Inc. abandoned the construction of the appellant’s home and allegedly some of the work that it performed prior to leaving the job was not done in a workmanlike manner. In December, 1979, the appellants commenced an action in assumpsit against Pate Construction, Inc., Clarence W. Pate, Sigrid V. Pate and Northeastern Bank of Pennsylvania. The bank filed a motion for summary judgment which was granted by the court below and forms the basis of this appeal. Based on a stipulation of counsel the court below entered judgment in favor of the appellants and against Pate Construction, Inc. in the amount of $42,851.28, the principal amount appellants sought against Pate Construction, Inc. in their complaint in assumpsit. Also, based on counsel’s stipulation, judgment was entered in favor of the individual defendants, Clarence W. Pate and Sigrid V. Pate and against the appellants.

The sole issue on appeal is whether summary judgment was properly entered in favor of Northeastern Bank of Pennsylvania and against the appellants. It is axiomatic that summary judgment will be entered only in a clear case. Hankin v. Mintz, 276 Pa.Super. 538, 419 A.2d 588 (1980). A summary judgment may be granted where the pleadings, depositions, interrogatories and admissions on file show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Bollinger v. Palmerton Area Communities Endeavor, Inc., 241 Pa.Super. 341, 361 A.2d 676 (1976); Community Services of Clearfield, Inc. v. Local 2665, American Federation of State, County and Municipal Employees, AFL-CIO, 292 Pa.Super. 238, 437 A.2d 23 (1981). Applying these rules, and interpreting the facts most favorably to the appellants there is nothing in the record that establishes a promise by the bank that it would not release funds to Pate Construction, Inc. unless the work had been performed in a workmanlike manner. The bank was not a party to the contract between the appellants and Pate Construction, Inc. Further, the pay-out schedule entered into between the appellants and Pate Construction, Inc. provided that the appellants and the contractor would modify the pay-out schedule if required by any lending institution to conform with the institution’s pay-out schedule. While it might be argued that the appellants had the right to rely on the bank’s undertaking to engage in some kind of pay-out plan, there is nothing in the evidence to suggest that the bank undertook an obligation to appellant to pay out sums only on a pro tanto basis in strict accordance with the exact progress of the construction and precise conformity to the requirements of the building contract to which it was not a party.

The depositions reveal that there were no genuine issues as to any material fact. Lawrence Goodman, one of the appellants, testified as follows with reference to the bank’s obligations:

Q. When you closed your mortgage at the bank, who represented you?
A. I believe it was a title company.
Q. Did you have any attorney present?
A. No.
Q. Was there an attorney from the bank present?
A. Don’t believe so.
Q. Did anybody at the closing advise you as to the procedures the bank uses with respect to disbursement of the monies that they are holding in escrow for the construction of the house?
A. They advised me that I had paid $125 inspection fee, and I assumed the bank was going to inspect and protect me.
Q. Who initiated the discussion between you and whatever bank officer it was concerning inspection to be undertaken by the bank or on its behalf?
A. I don’t recall anybody.
Q. What I am asking you is, did the bank inform you that they were going to inspect your property or did you ask them to inspect your property?
A. The bank sent me a bill included in their closing $125 for inspection fees, and I assumed that meant they were going to inspect.
Q. What were you told about the inspection that they would undertake specifically, if anything?
A. I don’t recall what I was told except that I recall having told them that, “You are going to be my watchdog.”
Q. In your complaint, Mr. Goodman, Paragraph 20, you allege that as consideration for entering into the loan that you were assured by Northeastern Bank that they would inspect the construction site prior to releasing any any phase payment to determine whether any work specified in the contract was completed and that it was done in a workmanlike manner.
Two questions. First of all, the contract referred to in that, and correct me if I am wrong, I understand that to mean the contract between you and Mr. Pate, is that correct?
A. I think he would argue and say it was Pate Construction.
Q. 0. K. Between you and Pate Construction and/or Mr. Pate individually, but Northeastern Bank is not a party to that contract, is that correct?
A. Legally I don’t know.
Q. Did a representative of Northeastern Bank sign the contract?
A. I don’t believe so.
Q. What was the basis for your understanding that Northeastern Bank would inspect the property to be sure that work was done in a workmanlike manner as alleged in your complaint?
A. Inspection fee.
Q. You spoke earlier, I believe about a second set of plans.
A. Yes.
Q. Did you ever supply a copy of that second set of the plans to the bank?
A. No.
Q. I believe you also testified earlier that there came a time when you contacted Northeastern Bank and spoke to Mr. Graham and a, or a Mr. Fichterl concerning problems you were having with Mr. Pate, is that correct?
A. Yes.
Q. Can you give me an approximate time as to when you did that?
A. I would say that started in September or October of ’78.
As I understand your testimony, correct me if I am wrong, you predicate your charges against Northeastern Bank as far as its failure to inspect or properly inspect on the imposition of a $125 fee for inspection, is that correct?
A. The fee is just representative of what I thought was supposed to have been done by the bank.
Q. Was there anything else told to you by anybody else at the bank, or were there other documents given to you by anybody at the bank?
A. Not that I can recall.
With respect to the inspection fee Mrs. Goodman testified:
He mentioned that we got mortgage approval at the beginning. The one thing he didn’t mention was we also signed a paper so that the bank could inspect and keep track of construction because we had never built a house before. We did not live in the area. We signed that agreement willing to pay them for inspections so that we could be sure that the house was completed properly and so they could release funds once they checked.
BY MR. CONNOLY:
Q. I just have a few questions. You signed a form permitting the bank onto the property. Was there anything else that you might have been told at the closing by the bank?
A. No. I remember Larry saying, “We don’t live here, and we are counting on you to watch out for us because we can’t keep track of the building, and I have never built a house before.

There is no dispute that appellants paid $125.00 to the bank as an inspection fee and that the bank paid Mr. Kirk a fee for making the inspections. However, acceptance of an inspection fee does not of itself constitute an implied agreement by the bank that the money will not be paid out unless the house has reached the proper stages of completion and the work has been performed in a workmanlike manner. As noted in Federal Land Bank of Baltimore v. Fetner, 269 Pa.Super. 455, 462, 410 A.2d 344, 348 (1980):

Ordinarily, there is no duty on the part of a lender to inspect the mortgaged property to determine that the borrower is obtaining that which he may have been promised by the vendor or that which he believes he is obtaining. Unless some further obligation is assumed, the lend er’s inspection of the premises to be mortgaged is made only to ascertain whether the property has sufficient value to secure the loan and is made by the lender for its benefit only. (Emphasis added).

The question of the promise, if any, made to the appellants concerning inspection was fully covered by the appellants in their deposition. It is clear that the bank made no promise either express or implied that it would do anything on behalf of the appellant in exchange for the $125.00 inspection fee that the bank charged. Mr. Goodman testified that he paid the inspection fee “and I assumed the bank was going to inspect and protect me.” (Emphasis added). The following testimony by Mr. Goodman establishes that no promise was made on the part of the bank on behalf of Mr. Goodman and that Mr. Goodman merely assumed that in exchange for a $125.00 fee that he would be protected:

Q. Who initiated the discussion between you and whatever bank officer it was concerning inspection to be undertaken by the bank or on its behalf?
A. I don’t recall anybody.
Q. What I am asking you is, did the bank inform you that they were going to inspect your property or did you ask them to inspect your property?
A. The bank sent me a bill included in their closing $125 for inspection fees, and I assumed that meant they were going to inspect.
Q. What were you told about the inspection that they would undertake specifically, if anything?
A. I don’t recall what I was told except that I recall having told them that, “You are going to be my watchdog.”

Appellants’ cause of action depends on the existence of a contract with the bank to release funds only when work specified in the contract was completed and done in a workmanlike manner. Basically, a contract is a legally enforceable promise. Williston on Contracts, 3rd Edition, Vol. 1, § 1 gives the classic definition of a contract wherein it is stated: “A contract is a promise, or set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” In order to have an enforceable contract, the nature and extent of the obligations must be certain, and the parties themselves must agree upon the necessary and material details of the bargain. Lombardo v. Gasparini Excavating Co., 385 Pa. 388, 123 A.2d 663 (1956). The appellants have established no promise, either express or implied, on the part of the bank to do what they assumed it would do. As stated in Lombardo v. Gasparini Excavating Co., supra, at 385 Pa. 393, 123 A.2d 666: “Under such circumstances it is quite apparent that the alleged contract was much too indefinite for plaintiff to reasonably believe he could ever enforce it in an action at law for damages.”

Appellants’ brief summarizes their position very succinctly where it states: “Further, appellants testified by way of deposition that they believed appellee bank would inspect their home to determine the quality and quantity of work prior to an installment payment being released and only make the payment if the work was satisfactory.” Looking at the undisputed facts in the light most favorable to the appellants it is clear that there was nothing to justify their belief other than the fact that they paid $125.00 to the bank as an inspection fee. The bank was furnishing the money for appellants’ home and the collateral to secure the loan was the house. It was in the bank’s best interest to make sure that the loan was properly secured before advancing money to the builder. Accordingly, the bank had an inspector look at the property before releasing funds. In the event that money was paid to the builder, and the value of the house was insufficient to cover the indebtedness, then in the event of a default by the mortgagors the bank would run a substantial risk of not having its indebtedness repaid. Appellants have taken this situation and, in effect, have assumed that the bank which furnished the funds for the house was also going to become the guarantor of the quality and quantity of the work to be done by their builder. Without any basis, other than paying a $125.00 inspection fee, the appellants believed that they did not have to concern themselves with how well Pate Construction, Inc. was performing the building contract as the bank would be their “watchdog” and guarantee satisfactory performance. The undisputed facts in the record are much too fragile to support the heavy obligation which appellants assumed the bank was going to undertake. The appellant, Mr. Goodman, is a certified public accountant and presumably a person familiar with business and financial matters. It is difficult to understand why he assumed that the bank would undertake such obligations in the absence of any agreement to do so.

Finally, their is no dispute as to the terms of the alleged contract with reference to the inspection. Appellants paid their fee and assumed that certain things would occur. The function of the contract interpretation and construction is a question of law peculiarly within the province of the court. National Products Co., Inc. v. Atlas Financial Corp., 238 Pa.Super. 152, 364 A.2d 730 (1975). The court below, after examining the record found no issue of fact concerning the alleged duty on the part of the bank to inspect the premises during construction to insure that the construction was being performed in a workmanlike manner. The bank was not a party to the contract entered into between appellants and Pate Construction, Inc. Although it appears that Pate Construction, Inc. defaulted on its contract, as judgment was entered against Pate Construction, Inc. in favor of the appellants by stipulation, there is nothing in the record that makes the Northeastern Bank of Pennsylvania responsible for the default.

Order affirmed.

      . The complaint by appellants against Northeastern Bank of Pennsylvania contained the following conclusions:
      19. Under the terms of the loan, the funds were to be released by defendant NORTHEASTERN BANK OF PENNSYLVANIA to defendant PATE CONSTRUCTION, INC., in accordance with the phases set forth in paragraph two (2) of the contract between plaintiffs and defendant PATE CONSTRUCTION, INC., which has been marked as Exhibit “A”.
      20. As consideration for the plaintiffs entering into said loan, plaintiffs were assured by the defendant, NORTHEASTERN BANK OF PENNSYLVANIA that it would inspect the construction site prior to releasing any phase payment to determine that the work specified in the contract was completed and that it was done in a workmanlike manner.


author: CERCONE, President Judge:

text:
    451 A.2d 470
    COMMONWEALTH of Pennsylvania v. Clayton David THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 17, 1981.
    Filed Oct. 1, 1982.

      Roy Davis, Assistant Public Defender, Media, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.
    Before CERCONE, President Judge, and MONTEMURO, and VAN der VOORT, JJ.
   CERCONE, President Judge:

This is a direct appeal from judgment of sentence of three to six years and one to two years concurrent imprisonment imposed on appellant following his conviction on charges of receiving stolen property, and the unauthorized use of an automobile.

In the late evening of February 1 on the early morning hours of February 2, 1976 the Delaware County home of Christos Voulgaris was burglarized by persons unknown. Taken from Mr. Voulgaris’ house were a radio, a jacket containing the keys to his beige 1975 Monte Carlo and the car’s purchase order. The car, which had been parked on the street in front of the house, was also missing.

At 4:45 a.m. on February 3, 1976 officers of the Montgomery County community of Lower Merion were summoned to investigate a disturbance of the nocturnal peace. The officers found human footprints in the snow outside the house whence came the call for help. The depressions in the snow suggested that the person who passed there had been running. They followed the tracks for a half mile in the pre-dawn darkness. Where the tracks ended they found appellant cowering in the bushes. He was arrested on the spot. Subsequent investigation turned up a set of keys in the snow near the trail of footprints. Not far from the house the police found Mr. Voulgari’s automobile. A search of appellant’s person revealed the purchase order for the stolen Monte Carlo.

On a warrant issued by a Delaware County district justice, appellant was arrested on February 11 in the Montgomery County jail. He was given a preliminary hearing in Delaware County on February 20 and held for court on $25,000 bail. The Delaware County district attorney filed informations against appellant on March 26 charging him with burglary, theft by unlawful taking, theft by receiving stolen property and the unauthorized use of an automobile. Appellant filed no pre-trial motions, and stood mute at arraignment, whereupon a plea of not guilty was entered on his behalf. He waived jury trial and was tried by the court without a jury on July 21. At the close of the Commonwealth’s case appellant demurred, which demurrer was first granted and then denied following objection by the Commonwealth. Appellant presented no defense. The court thereupon found appellant not guilty on the burglary and theft charges, and guilty of receiving stolen goods and unauthorized use of an automobile.

Immediately after this finding of guilt appellant conferred with his trial counsel. Without the trial court’s compliance with Rule 1123(b) and (c) of the Rules of Criminal Procedure trial counsel moved for immediate sentencing and without first making any oral or written post-trial motions. The court refused the motion and ordered a presentence report. Two months later appellant was sentenced to three to six years on the stolen property charge and one to two years concurrent imprisonment on the unauthorized use charge. This appeal followed.

Appellant now argues that the Delaware County Court of Common Pleas lacked the jurisdiction to convict him of these crimes because the evidence adduced at trial was insufficient to establish that the crimes occurred in that county. The Commonwealth disputes appellant’s contention that the evidence was insufficient to establish the locus of the crimes. It further argues that appellant waived the issue by his failure to file post-verdict motions. For the reasons following we now reverse and order appellant discharged.

We reject the Commonwealth’s claim that appellant has waived the jurisdiction question by his failure to file post-verdict motions. As our courts have often stated:

. . . the locus of a crime is always in issue, for the court has no jurisdiction of the offense unless it occurred within the county of trial, or unless, by some statute, it need not. . .

Commonwealth v. Mull, 316 Pa. 424, 426, 175 A. 418, 419 (1934). This is true because the proper place for a trial of a crime is not merely a question of venue but rather one of subject matter jurisdiction. See Commonwealth v. Simeone, 222 Pa.Superior Ct. 376, 294 A.2d 921 (1972). And see Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 206 A.2d 43 (1965). Moreover, it has repeatedly been held that subject matter jurisdiction is not a waivable issue since it goes directly to the power of the court to act, and that it can be raised at any stage in the proceedings. See e.g., Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974); Commonwealth v. Varner, 265 Pa.Superior Ct. 329, 401 A.2d 1235 (1979); Commonwealth ex rel. Yentzer v. Carpenter, 240 Pa. Superior Ct. 202, 362 A.2d 1101 (1976). Thus it is that the jurisdiction question is properly before us.

The merits of the instant case are controlled by the case of Commonwealth ex rel Chatary v. Nailon, supra. The facts of that case were succinctly stated in the opinion by Justice Eagen (later Chief Justice) in this wise:

Two dwelling houses in Montgomery County, Pennsylvania, were burglarized sometime between December 2 and December 7, 1960. Several articles were stolen therefrom, including a camera and a pair of binoculars. On December 10, 1960, for reasons unconnected with the said burglaries, police officers of the City of Philadelphia searched the automobile of Michael Paul Chatary, in the City of Philadelphia, County of Philadelphia, and found certain of the aforementioned stolen articles therein. As a result, Chatary was later indicted in Montgomery County on charges of burglary, larceny and receiving stolen goods.
Chatary was tried on the indictments on April 27 and August 7, 1961, in Montgomery County before a judge without a jury. He was found guilty on the indictments charging the crime of receiving stolen goods, but not guilty on the burglary and larceny indictments.
At trial, the only evidence offered by the Commonwealth to connect Chatary with the crimes charged was his possession of the stolen goods in Philadelphia County, as discovered by the Philadelphia police in the manner hereinbefore related. Chatary testified and denied involvement in the crimes charged and offered testimony in explanation of the presence of the stolen goods in his automobile. The trial judge found the defendant’s denial “incredible” and his explanation of the possession “fantastic.” Nevertheless, he acquitted him of the burglary and larceny charges.

Id. 416 Pa. at 282, 206 A.2d at 44. (Footnote omitted). The jurisdiction question was not raised pre-trial, although Chatary did raise it in his post-verdict motions. (In the instant case there was some discussion of the jurisdictional facet of the case between appellant’s demurrer and the verdict, but none pre-trial.) Chatary’s appeal to this Court was quashed as untimely. He then filed a petition for writ of habeas corpus below which was denied; from that denial he appealed to the Supreme Court. In discussing the merits of Chatary’s appeal Justice Eagen wrote:

... It is ... well established that unexplained possession in the defendant of property recently stolen is evidence that he is the thief. Also, if the larceny was committed in the perpetration of breaking and entering, such possession is evidence of guilt of the charge of statutory burglary. Also, if the indictment charges receiving stolen goods only, the unexplained possession is evidence of guilt of that crime. See, Commonwealth v. Gomori, 192 Pa.Superior Ct. 325, 161 A.2d 649 (1960); Commonwealth v. Joyce, 159 Pa.Superior Ct. 45, 46 A.2d 529 (1946). However, such evidence is not conclusive and may be rebutted. It is for the trier of fact alone to say whether the guilt of the defendant is a reasonable inference, fairly deducible from his possession of recently stolen property, in light of all the circumstances, including the reasonableness of his explanation, if any, as to how he came into possession: Commonwealth v. Newman, 276 Pa. 534, 120 A. 474 (1923); Commonwealth v. Kaufman, 179 Pa.Superior Ct. 247, 116 A.2d 316 (1955); Commonwealth v. Joyce, supra; and, Commonwealth v. Dock, 146 Pa.Superior Ct. 16, 21 A.2d 429 (1941).
But while evidence of such possession is, in itself, sufficient to warrant a jury in finding that the defendant is guilty of the crime of receiving stolen goods, it is not, in itself, sufficient to establish jurisdiction and venue, where, as here, the possession in the defendant was found in another county. While it is true that venue may be proved by circumstantial evidence (2 Wharton, Criminal Evidence § 928 (11th ed. 1935)), the record herein fails to disclose any circumstance (other than the possession) upon which an inference of venue could be based. While the possession does give rise to an inference of guilt, it does not, in itself, and should not, under the circumstance presented, permit an inference that the goods were received in the county in which they were stolen. This would be contrary to logic and practical experience, especially in these days of rapid transportation and communication.
Moreover, as above noted, the possession gives rise to a rebuttable inference only. When the trial court found the defendant “not guilty” of the burglaries and larcenies, this finding established conclusively that the defendant was not at the scene of these crimes, either as a principal or an accessory. Since Montgomery County’s connection with the crime, for which the defendant was convicted, was limited, under the evidence, to the fact that the burglaries and larcenies occurred there, the above finding by the court destroyed the only evidentiary link connecting the defendant with the reception of the goods in that county. The trial evidence was, therefore, insufficient to establish proper venue and jurisdiction.
Sfc * * * *
It may be asserted that the verdict of guilty necessarily included a finding that the crime was committed where laid in the indictment and is, therefore, conclusive thereof. While there are statements in several cases to support this contention (See e.g., Commonwealth v. Bubnis, 197 Pa. 542, 47 A. 748 (1901); Commonwealth v. Kaiser, 184 Pa. 493, 39 A. 299 (1898); Commonwealth ex rel. Koffel v. Myers, 184 Pa.Superior Ct. 270, 133 A.2d 570 (1957)), an examination of the record in each of these cases discloses that there was sufficient testimony therein to establish proper venue. In the present case, the evidence was clearly insufficient in this respect. Moreover, the dicta referred to in Bubnis, Kaiser and Koffel, supra, are inconsistent with the rulings in other cases, wherein judgments of conviction and sentence in the courts below were reversed on appeal because of the lack of sufficient evidence in the record to establish the fact that the crime occurred in the trial county. See, Commonwealth v. Tarsnane, 170 Pa.Superior Ct. 265, 85 A.2d 606 (1952); Commonwealth v. Wojdakowski, 161 Pa.Superior Ct. 250, 53 A.2d 851 (1947). Cf. Commonwealth v. Mull [316 Pa. 424, 175 A. 418], supra.

Id. 416 Pa. at 283-285, 206 A.2d at 45-56. Such is also the posture of the instant case. When the lower court found appellant not guilty of the burglary and theft by unlawful taking charges it destroyed any nexus between the remaining charges and the jurisdiction of the Delaware County court to convict appellant. As in Commonwealth ex rel. Chatary v. Nailon, supra, the evidence of proper jurisdiction was insufficient and the convictions must be reversed.

The judgments of sentence are vacated, convictions reversed and appellant is ordered discharged.

      . 18 Pa.C.S. § 3925.

      . 18 Pa.C.S. § 3928.

      . Although still represented by Delaware County Public Defender’s Office, appellant is no longer represented by trial counsel, nor is trial counsel still affiliated with that office.

      . Rule 1123(b) and (c) read:
      (b) If the defendant agrees on the record, the post-verdict motions may be made orally at the conclusion of the trial. The defendant may also within the ten (10) day period on the record voluntarily and understandingly waive the filing of post-verdict motions. Prior to the acceptance of such waiver the trial judge shall, pursuant to paragraph (c) of this Rule, advise the defendant on the record that waiving of post-verdict motions shall preclude raising on appeal any issues which might have been raised in such motions.
      (c) Upon the finding of guilt, the trial judge shall advise the defendant on the record:
      (1) of the right to file post-verdict motions and of the right to the assistance of counsel in the filing of such motions and on appeal of any issues raised therein;
      (2) of the time within which he must do so as set forth in paragraph (a); and
      (3) that only the grounds contained in such motions may be raised on appeal.
      Pa.R.Crim.P. 1123(b) and (c).

      . Subsequent to perfecting this appeal a petition for leave to file a motion for new trial nunc pro tunc was filed below and denied. No appeal was filed from the denial of this petition.

      . See also Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 206 A.2d 43 (1965); Commonwealth v. Lawrence, 282 Pa. 128, 127 A. 465 (1925); Simmons v. Commonwealth, 5 Binney 617 (1813); Commonwealth v. Ohle, 291 Pa.Superior Ct. 110, 435 A.2d 592 (1981); Commonwealth v. Varner, 265 Pa.Superior Ct. 329, 401 A.2d 1235 (1979); Commonwealth v. Simeone, 222 Pa.Superior Ct. 376, 294 A.2d 921 (1972); Commonwealth ex rel. Ritchey v. McHugh, 189 Pa.Superior Ct. 515, 151 A.2d 659 (1959); Commonwealth v. Tarsnane, 170 Pa.Superior Ct. 265, 85 A.2d 606 (1952); Commonwealth v. Wojdakowski, 161 Pa.Superior Ct. 250, 53 A.2d 851 (1947); Commonwealth v. Sexton, 107 Pa.Superior Ct. 69, 162 A. 678 (1932); Commonwealth v. Bingaman, 51 Pa.Superior Ct. 336 (1912).

      . We need not now determine the effect, if any, of appellant’s failure to argue the failure of the trial court to conduct a Rule 1123 colloquy. That question remains undecided here, as it did in Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981). As we stated there:
      In the past, there has been some question with regard to this Court’s sua sponte review of the record to determine whether the lower court complied with Rule 1123(c). Several cases have held that the absence of a specific allegation by appellant that his waiver was unintelligent or involuntary precludes an independent review of the record. Commonwealth v. Tegano, 265 Pa.Super. 453, 402 A.2d 526 (1979); Commonwealth v. Smith, 258 Pa.Super. 148, 392 A.2d 727 (1978); Commonwealth v. Harmon, 267 Pa.Super. 224, 406 A.2d 775 (1979). However, another line of decisions mitigates the harshness of the automatic waiver rule by reasoning that if the record is devoid of an 1123 colloquy by the lower court then appellant cannot be found to have Imowingly waived his rights thereunder. Commonwealth v. Johnson, 258 Pa.Super. 214, 392 A.2d 760 (1978); Commonwealth v. Steffish, 243 Pa.Super. 309, 365 A.2d 865 (1976).

        Id, 288 Pa.Superior Ct. at 296-297, 431 A.2d at 1056.

      . The trial court, in its memorandum opinion did not address the merits of the appeal. The court sua sponte acknowledged its failure to conduct the Rule 1123 colloquy but concluded nevertheless that appellant understood “what he was doing.” The court went on to state that it might have considered allowing appellant to file post-trial motions nunc pro tunc if appellant had informed the lower court of his reasons for taking the appeal. We note that appellant’s failure to file a concise statement regarding the reasons for the appeal is not a violation of Rule 1925(b) of the Rules of Appellate Procedure, because the lower court never ordered appellant to file such a statement. According to Rule 1925(b) the lower court must order a concise statement of matters complained of on appeal and an appellant must fail to comply with such directive before this Court can find waiver under that Rule. See Pa.R.A.P. 1925(b).