author: BERNSTEIN, J.,

text:
    Samuel-Bassett v. Kia Motors America Inc.

      James A. Francis and Michael Donovan, for plaintiff.

      Thomas Goutman and Joseph Kernen, for defendant.
    September 17, 2004 —
   BERNSTEIN, J.,

Plaintiff filed this action in January 2001 “on her own behalf and on behalf of all other persons similarly situated” for damages arising out of an allegedly defective brake system in the model year 2000 Kia Sephia automobile which she purchased from Bernicker Kia in Philadelphia, PA. Specifically, plaintiff alleges that her car suffers from a braking defect which causes it to shudder, vibrate, make grinding and groaning noises upon application of the brakes, and that it often is unable to stop. At least five attempts were made to repair Ms. Bassett’s Sephia within the first 17,000 miles by replacing the brake rotors and pads, apparently without lasting success. Although plaintiff allegedly demanded timely rescission of her purchase of the vehicle from the defendant, her demand was refused.

By this action, Ms. Bassett seeks damages for the defendant’s violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1 et seq., and breaches of implied and express warranties. She further seeks to represent a class consisting “of all residents of Pennsylvania who purchased and/or leased Kia Sephia automobiles for personal, family or household purposes within six years preceding the filing of the complaint in this action.”

After a tortuous sojourn in the federal courts, the case has returned to the Court of Common Pleas of Philadelphia County where a record, consisting in large part of the federal court record, was created, and briefing, argument and hearing were expeditiously completed.

DISCUSSION

The sole issue before this court is whether the prerequisites for certification as stated in Pa.R.C.P. 1702 are satisfied. The purpose behind class action suits is “to provide a means by which the claims of many individuals may be resolved at one time, thereby eliminating the possibility of repetitious litigation and providing small claimants with a method to seek compensation for claims that would otherwise be too small to litigate.” DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 397, 676 A.2d 1237, 1239 (1996). For a suit to proceed as a class action, Rule 1702 of the Pennsylvania Rules of Civil Procedure requires that five criteria be met:

“(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.”

Rule 1708 of the Pennsylvania Rules of Civil Procedure requires:

“In determining whether a class action is a fair and efficient method of adjudicating the controversy, the court shall consider among other matters the criteria set forth [below]
“(a) Where monetary recovery alone is sought, the court shall consider
“(1) whether common questions of law or fact predominate over any question affecting only individual members;
“(2) the size of the class and the difficulties likely to be encountered in the management of the action as a class action;
“(3) whether the prosecution of separate actions by or against individual members of the class would create a risk of
“(i) inconsistent or varying adjudications with respect to individual members of the class which would confront the party opposing the class with incompatible standards of conduct;
“(ii) adjudications with respect to individual members of the class which would, as a practical matter, be dis-positive of the interests of other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;
“(4) the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues;
“(5) whether the particular forum is appropriate for the litigation of the claims of the entire class;
“(6) whether in view of the complexities of the issues or the expenses of litigation the separate claims of individual class members are insufficient in amount to support separate actions;
“(7) whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.
“(b) Where equitable or declaratory relief alone is sought, the court shall consider
“(1) the criteria set forth in subsections (1) through (5) of subdivision (a), and
“(2) 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.
“(c) Where both monetary and other relief is sought, the court shall consider all the criteria in both subdivisions (a) and (b).”

The burden of showing each of the elements in Rule 1702 is initially on the moving party. This burden “is not heavy and is thus consistent with the policy that ‘decisions in favor of maintaining a class action should be liberally made.’ ” Cambanis v. Nationwide Insurance Co., 348 Pa. Super. 41, 45, 501 A.2d 635, 637 (1985). The moving party need only present evidence sufficient to make out a prima facie case “from which the court can conclude that the five class certification requirements are met.” Debbs v. Chrysler Corp., 810 A.2d 137, 153-54 (Pa. Super. 2002) (quoting Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 130, 451 A.2d 451, 455 (1982)).

In other contexts, the prima facie burden has been construed to mean “some evidence,” “a colorable claim,” “substantial evidence,” or evidence that creates a rebut-table presumption that requires the opponent to rebut demonstrated elements. In the criminal law context, “the prima facie standard requires evidence of the existence of each and every element.." Commonwealth v. Martin, 727 A.2d 1136, 1142 (Pa. Super. 1999), alloc. denied, 560 Pa. 722, 745 A.2d 1220 (1999). However, “the weight and credibility of the evidence are not factors at this stage____” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001).

In the family law context, “the term ‘prima facie right to custody’ means only that the party has a colorable claim to custody of the child.” McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa. Super. 2000). Similarly, in the context of employment law, the Commonwealth Court has opined that a prima facie case can be established by “substantial evidence” requiring the opposing party to affirmatively rebut that evidence. See e.g., Williams-burg Community School District v. Commonwealth of Pennsylvania, Pennsylvania Human Relations Commission, 99 Pa. Commw. 206, 512 A.2d 1339 (1986).

Courts have consistently interpreted the phrase “substantial evidence” to mean “more than a mere scintilla,” but evidence “which a reasonable mind might accept as adequate to support a conclusion.” SSEN Inc. v. Borough Council of the Borough of Eddystone, 810 A.2d 200, 207 (Pa. Commw. 2002). In Grakelow v. Nash, 98 Pa. Super. 316 (1929), a tax case, the Superior Court said: “To ordain that a certain act or acts shall be prima facia evidence of a fact means merely that from proof of the act or acts, a rebuttable presumption of the fact shall be made; ... it attributes a specified value to certain evidence but does not make it conclusive proof of the fact in question.”

Class certification is a mixed question of fact and law. Debts v. Chrysler Corp., 810 A.2d 137, 154 (Pa. Super. 2002). The court must consider all the relevant testimony, depositions and other evidence pursuant to Rule 1707(c). In determining whether the prerequisites of Rule 1702 have been met, the court is only to decide who shall be the parties to the action and nothing more. The merits of the action and the plaintiffs’ right to recover are excluded from consideration. 1977 Explanatory comment to Pa.R.C.P. 1707. Where evidence conflicts, doubt should be resolved in favor of class certification. In making a certification decision, “courts in class certification proceedings regularly and properly employ reasonable inferences, presumptions, and judicial notice.” Janicik, 305 Pa. Super. at 128, 451 A.2d at 454. Accordingly, this court must refrain from ruling on plaintiff’s ultimate right to achieve any recovery, the credibility of the witnesses and the substantive merits of defenses raised.

“The burden of proof to establish the five prerequisites to class certification lies with the class proponent; however, since the hearing on class certification is akin to a preliminary hearing, it is not a heavy burden.” Professional Flooring Co. v. Bushar Corp., 61 D.&C.4th 147, 153 (Montg. Cty. 2003), citing Debbs v. Chrysler Corp., 810 A.2d 137, 153 (Pa. Super. 2002); Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 130, 451 A.2d 451, 455 (1982). See also, Baldassari v. Suburban Cable TV Co. Inc., 808 A.2d 184, 189 (Pa. Super. 2002); Cambanis v. Nationwide Insurance Co., 348 Pa. Super. 41, 501 A.2d 635 (1985). The prima facie burden of proof standard at the class certification stage is met by a qualitative “substantial evidence” test. However, where relevant defense evidence is presented, it is the plaintiff that has the burden of persuasion and plaintiff runs the risk of nonpersuasion.

Our Superior Court has instructed that it is a strong and oft-repeated policy of this Commonwealth that decisions applying the rules for class certification should be made liberally and in favor of maintaining a class action. Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 407, 615A.2d 428, 431 (1992). See also, Janicik, 305 Pa. Super. at 128, 451 A.2d at 454, citing and quoting 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”).

Likewise, the Commonwealth Court has held that “in doubtful cases, any error should be committed in favor of allowing class certifi cation.” Foust v. SEPTA, 756 A.2d 112, 118 (Pa. Commw. 2000). This philosophy is further supported by the consideration that “[t]he court may alter, modify, or revoke the certification if later developments in the litigation reveal that some prerequisite to certification is not satisfied.” Janicik, 305 Pa. Super, at 129, 451 A.2d at 454.

Within this context, the court will examine the requisite factors for class certification.

I. Numerosity

To be eligible for certification, appellant must demonstrate that the class is “so numerous that joinder of all members is impracticable.” Pa.R.C.P. 1702(1). A class is sufficiently numerous when “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 should such potential plaintiffs sue individually.” Temple University of the Commonwealth System of Higher Education v. Pennsylvania Department of Public Welfare, 30 Pa. Commw. 595, 603, 374 A.2d 991, 996 (1977) (123 members sufficient); ABC Sewer Cleaning Co. v. Bell of Pa., 293 Pa. Super. 219, 438 A.2d 616 (1981) (250 members sufficient); Ablin Inc. v. Bell Telephone Company of Pennsylvania, 291 Pa. Super. 40, 435 A.2d 208 (1981) (204 plaintiffs sufficiently numerous). Appellant need not plead or prove the actual number of class members, so long as he is able to “define the class with some precision” and provide “sufficient indicia [to the court] that more members exist than it would be practicable to join.” Janicik, 305 Pa. Super. at 132, 451 A.2d at 456.

In this case, the plaintiff’s amended complaint avers that, “according to KMA’s press releases, KMA sold over 166,000 Sephia automobiles in the United States of America for the years 1997, 1998 and 1999 alone.” In her motion for class certification, Ms. Bassett cites to defendant’s response to her interrogatory no. 8, which states that “for 1997-2000, the total number of Sephia automobiles sold or leased within the Commonwealth of Pennsylvania was 10,042.” Joinder of 10,042 plaintiffs is impracticable, the numerosity requirement has been met.

II. Commonality

Common questions are those which arise from a “common nucleus of operative facts.” The second prerequisite for class certification is that “there are questions of law or fact common to the class.” Pa.R.C.P. 1702(2). Common questions exist “if the class members’ legal grievances arise out of the ‘same practice or course of conduct’ on the part of the class opponent.” Janicik, supra at 133, 451 A.2d at 457. Thus, it is necessary to establish that “the facts surrounding each plaintiff’s claim must be substantially the same so that proof as to one claimant would be proof as to all.” Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 409, 615 A.2d 428, 431 (1992). However, where the challenged conduct affects the potential class members in divergent ways, commonality may not exist. Janicik, supra at 133 n.5, 451 A.2d at 457 n.5.

“While the existence of individual questions is not necessarily fatal, it is essential that there be a predominance of common issues shared by all class members which can be justly resolved in a single proceeding.” D’Amelio v. Blue Cross of Lehigh Valley, 347 Pa. Super. 441, 452, 500 A.2d 1137, 1142 (1985). In examining the commonality of the class’ claims, a court should focus on the cause of injury and not the amount of alleged damages. “Once a common source of liability has been clearly identified, varying amounts of damages among the plaintiffs will not preclude class certification.” See Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 409, 615 A.2d 428, 431 (1992). (emphasis in original) Where there exists intervening and possibly superseding causes of damage, however, liability cannot be determined on a class-wide basis. Cook v. Highland Water and Sewer Authority, 108 Pa. Commw. 222, 231, 530 A.2d 499, 504 (1987).

Here, plaintiff argues that the potential class theory of liability is centered on a common grievance: that Kia knowingly sold one automobile model, the Sephia, with a uniformly defective braking system that affected all drivers, which Kia unsuccessfully attempted to remedy in a uniform manner. The amended complaint identifies the following common questions of law and fact:

(1) Whether defendant’s Sephia automobiles possess the brake system defect alleged;

(2) Whether defendant lacks the means to repair the defect or replace the defective brake system;

(3) Whether defendant’s conduct violates the Consumer Protection Law;

(4) Whether the brake system defect constitutes a breach of the implied warranty of merchantability and of express warranty;

(5) Whether defendant has violated and continues to violate the Magnuson-Moss Warranty Improvement Act;

(6) Whether members of the class are entitled to a declaration that defendant’s conduct constitutes a violation of the CPL, a breach of implied and express warranty, and a violation of the Magnuson-Moss Warranty Improvement Act;

(7) Whether members of the class are entitled to be notified and warned about the brake system defect and are entitled to the entry of final injunctive relief compelling defendants to issue a notification and warning to all class members concerning such a defect;

(8) Whether members of the class are entitled to actual damages, representing (i) the failure of consideration in connection with or difference in value arising out of the variance between defendant’s automobiles as warranted and defendant’s automobiles containing the brake system defect; (ii) the depression of resale value of the automobiles suffered by plaintiff and the class arising out of the brake system defect; (iii) sufficient funds to permit plaintiff and the class to themselves repair each affected automobile using proper parts and adequately trained labor; and (iv) compensation for all out-of-pocket monies expended by the plaintiff and the members of the class for repair attempts and loss of use of the vehicles.

There is sufficient record evidence that defendant knew that a vast number of its Sephia automobiles between 1997 and 2001 required replacement of brake pads and rotors at intervals of less than 5,000 miles. According to plaintiff’s evidence, warranty repair statistics demonstrated for model year 1997 cars, 55 percent of all vehicles required brake warranty repair in the first year, and 40 percent in the second. Warranty statistics demonstrated that for model year 1998 cars, 85 percent of all vehicles required brake warranty repair in the first year, and 58 percent in the second. Warranty statistics demonstrated for model year 1999 cars, 70 percent of all vehicles required brake warranty repair in the first year, and “only” 33 percent in the second. Improvement was achieved in the 2000 year model but warranty statistics still demonstrated that 36 percent of all vehicles required brake warranty repair in the first year, and 15 percent in the second. This data clearly indicates a systemic brake problem, identified by plaintiff as related to a design defect causing inadequate heat dissipation from the front brakes. Plaintiff’s evidence is that the common expectation is that brake pad life is between 24,000 and 30,000 mi les and that the Ki a manual itself recommends the first scheduled brake pad inspection at 30,000 miles. In the class vehicles, 1997 to 2000,60 percent had one or more warranty brake repair and in the 1998 vehicle a full 80 percent of vehicles had at least one warranty brake repair. In view of this evidence and given that Ms. Bassett need only show one common question of law or fact and need not prove her case at this juncture, she has satisfied the requirement of commonality with one notable exception.

3. UTPCPL

Plaintiff’s claims under the UTPCPL fail to satisfy the commonality requirement. To recover under the UTPCPL, plaintiff must prove reliance. See Skurnowicz v. Lucci, 798 A.2d 788 (Pa. Super. 2002). A private UTPCPL plaintiff must show that he or she sustained injury as a result of a defendant’s unlawful act. Weinberg v. Sun Company Inc., 565 Pa. 612, 617, 777 A.2d 442, 446 (2001). Because reliance is an integral element of any UTPCPL claim, it is an inappropriate vehicle upon which to predicate a class action. In Debbs v. Chrysler Corp., 810 A.2d 137, 156 (Pa. Super. 2002), the Superior Court has said:

“The UTPCPL was addressed by our Supreme Court in Weinberg, supra. There, the court held that a plaintiff bringing a private action under the UTPCPL must establish the common-law elements of reliance and causation with respect to all subsections of the UTPCPL. Weinberg, [565 Pa. at 617,] 777 A.2d at 446. Our Supreme Court stated: ‘the UTPCPL’s underlying foundation is fraud prevention. Nothing in the legislative histoiy suggests that the legislature ever intended statutory language directed against consumer fraud to do away with the traditional common-law elements of reliance and causation.’
“Both fraud and UTPCPL claims were at issue in Basile [v. H & R Block Inc., 729 A.2d 574 (Pa. Super. 1999)]. There, the plaintiffs brought a class action against H & R Block as well as Mellon Bank alleging that the defendants failed to disclose that tax refunds under H & R Block’s ‘Rapid Refund’ program were actually short-term, high interest loans. Basile, 729 A.2d at 577. The plaintiffs alleged, inter alia, fraud and violations of the UTPCPL. Id. at 578.
“This court reasoned that, as to the UTPCPL claims, the plaintiffs must show detrimental reliance. The court noted that ‘an action under the UTPCPL may not be amenable to class certification due to discrepancies in the respective levels of reliance displayed by individual class members’ Id. at 584, citing DiLucido, [450 Pa. Super. at 401-402,] 676 A.2d at 1241. The court held that the plaintiffs need not show individualized detrimental reliance with respect to H & R Block, because H & R Block’s fiduciary relationship with the plaintiffs established detrimental reliance as a matter of law. Id. On the other hand, Mellon Bank had no such fiduciary relationship with the plaintiffs. Id. at 585. Therefore, the court concluded that:
“[The plaintiffs] may not assert the reliance inherent in such a relationship to establish this requirement. Rather, because plaintiffs’ claims against Mellon, unlike those against Block, assert conduct outside the confines of an agency relationship, plaintiffs must establish reliance as a matter of fact on the basis of the testimony of individual class members. Because such a showing would vary between class members, plaintiffs’ claims against Mellon are not appropriate for treatment as a class action.
“Id. at 585.”

The court continued:

“As noted above, Rule 1702 requires, for class certification, that ‘there are questions of law or fact common to the class.’ When determining whether a class action is a fair and efficient means of litigating the dispute, ‘one factor to consider is whether common questions of law or fact predominate over any question affecting only individual members.’ Rule 1708(a)(1).
“Our Supreme Court’s directions in Klemow [v. Time Incorporated, 466 Pa. 189, 352 A.2d 12 (1976)] and Weinberg, as well as our own court’s directions inBasile and DiLucido guide us here. In order to prove both common-law fraud and a violation of the UTPCPL, the plaintiffs must show that they suffered harm as a result of detrimental reliance on Chrysler’s fraudulent conduct. See Klemow, [466 Pa. at 197 n. 17,] 352 A.2d at 16 [n.17] (cause of action for fraud includes a showing that the plaintiff acted in reliance on defendant’s misrepresentations and, as such, is not generally appropriately resolved in a plaintiff class action); Weinberg, [565 Pa. at 617,] 777 A.2d at 446 (to sustain a private action under the UTPCPL, plaintiffs must show that they suffered ‘an ascertainable loss as a result of the defendant’s prohibited action’). This court has excused proof of individual detrimental reliance where the defendant has a fiduciary relationship with the plaintiffs. Basile, 729 A.2d at 585. Because no fiduciary relationship has been demonstrated between the class and Chrysler to excuse proof of individualized reliance, the individual questions involving reliance and causation would remain a significant barrier to class certification.” Debbs v. Chrysler Corp., 810 A.2d 137, 157 (Pa. Super. 2002).

The Pennsylvania Supreme Court recently remarked that the causation requirement found in all private UTPCPL actions presented “questions of fact applicable to each individual private plaintiff [that] would be numerous and extensive.” Weinberg v. Sun Company Inc., 565 Pa. 612, 617, 777 A.2d 442, 446 (2001). (The same is true in this case. This cannot be established using class-wide proof.)

While one might question whether such a fundamental, dangerous and potentially life-threatening defect as one involving proper braking could be of such importance to any reasonable vehicle purchaser as to permit presumed class reliance, our appellate courts have clearly and uniformly defined the law as requiring individualized proof of reliance even under the “catch-all” clause of the UTPCPL unless there exists a “fiduciary” relationship between the parties. Accordingly, this one claim is not suitable for class treatment and certification is denied.

III. Typicality

The third step in the certification test requires the plaintiff to show that the class action parties’ claims and defenses are typical of the entire class. The purpose behind this requirement is to determine whether the class representatives’ overall position on the common issues is sufficiently aligned with that of the absent class members, to ensure that pursuit of their interests will advance those of the proposed class members. DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 404, 676 A.2d 1237, 1242 (1996).

Typicality is not identically and thus factual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory. In other words, typicality will generally be found to exist when the named plaintiffs and the proposed class members challenge the same unlawful conduct.

In this case, the plaintiff asserts that her claims are typical of the claims of the proposed class because, like all proposed class members, she purchased a defective Sephia without having received any warning or notification from the defendant of the braking defect, because the defendant’s repeated efforts to repair the vehicle have not been successful and because the defendant has refused to repurchase the vehicle from her. Plaintiff’s claims are typical in these respects. Ms. Bassett has satisfied this prerequisite and presents a typical claim aligned with all other class representatives.

IV. Adequacy of Representation

For the class to be certified, this court must also conclude that the plaintiff “will fairly and adequately assert and protect the interests of the class.” Pa.R.C.P. 1702(4). In determining whether the representative parties will fairly and adequately represent the interests of the class, the court shall consider the following:

“(1) whether the attorney for the representative parties will adequately represent the interests of the class,
“(2) whether the representative parties have a conflict of interest in the maintenance of the class action, and
“(3) whether the representative parties have or can acquire adequate financial resources to assure that the interests of the class will not be harmed.” Rule 1709.
“[U]ntil the contrary is demonstrated, courts will assume that members of the bar are skilled in their profession.” Janicik, 305 Pa. Super, at 136, 451 A.2d at 458. The court presumes that counsel is skilled in their profession. Throughout this litigation plaintiff’s counsel has presented the issues and claims professionally and competently.

The plaintiff herself will adequately represent the interests of the proposed class despite the defendant’s assertion to the contrary. Specifically, the defendant argues that plaintiff is inadequate because she has failed to raise a claim under the Pennsylvania Lemon Law; that her interests are antagonistic to those of the remainder of the proposed class because the brakes on her Sephia actually failed to stop her vehicle resulting in an accident in which she sustained personal injury and property damage on at least one occasion; and that an inspection of plaintiff’s vehicle by the defendant’s representatives revealed nothing.

In reviewing all evidentiary materials produced, we note that although the defendant’s expert did not find anything wrong with the braking system in the plaintiff’s Sephia, there is ample evidence that plaintiff had the brake pads and rotors repaired and replaced more than twelve times by the time the odometer read 45,000 miles and four times by the 12,000-mile mark. Thus, while we do not doubt that the vehicle’s brakes properly function with new pads and rotors and that the vehicle’s brakes may have been fully operational when inspected by defendant’s expert, the vehicle’s repair history nevertheless strongly suggests that the brake pads and rotors could again wear out in an unusually short period of time due to an alleged defective design. Since this is the gravamen of the plaintiff’s class complaint, the plaintiff’s interests are sufficiently aligned with those of the proposed class to render her an adequate class representative.

Plaintiff’s collision with another vehicle due to brake failure does not pit the plaintiff’s individual interests against those of the class. Rather, this experience would likely make Ms. Bassett a more zealous advocate on behalf of the class which she seeks to represent since she has experienced the serious potential consequences of the brake design failure alleged. Plaintiff will function adequately as a representative of the proposed class despite her having had an accident.

Finally, section 12 of the Pennsylvania Lemon Law, 73 P.S. §1962 provides that “nothing in this Act shall limit the purchaser from pursuing any other rights or remedies under any other law, contract or warranty.” Accordingly, Ms. Bassett’s failure to plead a claim under the Lemon Law does not render her inadequate as a class representative.

“[CJourts 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.” Janicik, 305 Pa. Super, at 136, 451 A.2d at 458. There is no valid issue presented concerning the adequacy of the representative plaintiff or counsel.

V. Fair and Efficient Method of Adjudication

The final criteria under Pa.R.C.P. 1702 is a determination of whether a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

1. Predominance of Common Questions of Law and Fact

The most important requirement in determining whether a class should be certified under 1702(a)(5) and 1708(a)(1) is whether common questions of law and fact predominate over any question affecting only individual members. In addition to the existence of common questions of law and fact, plaintiff must also establish that the common issues predominate. The analysis of predominance under Rule 1708(a)(1) is closely related to that of commonality under Rule 1702(2). Janicik, supra at 141, 451 A.2d at 461.

Predominance of common questions does not require a unanimity of common questions but rather demands that common questions outweigh individual questions. Herein, questions common to the class clearly predominate over those which only affect certain individual owners. Only one model is at issue in this case. The braking system is manufactured in such a way that the parts are fully interchangeable from one model year to the next. That the defendant attempted to correct the defect by numerous design changes is unavailing to rebut that common claims predominate because each change was ineffective.

While defendant is no doubt correct that each vehicle was driven differently by different drivers in different locations and that the vehicles manifested varying symptoms such as pulsating, grinding, vibration and failure to stop, there is nonetheless more than sufficient indicia that a vast number of those Sephias manufactured and sold between 1995 and 2001 experienced some or all of the above symptoms and were subject to the wear-out of their bake pads and rotors before reaching the 5,000-mile mark regardless of who was driving them or where or how they were being driven. There is no evidence to suggest that Kia drivers stop and go more than the drivers of any other vehicles. Moreover, there is further evidence that Kia was aware that there were ongoing problems with the Sephia’s braking system by virtue of the parts sales history of the Sephia’s brake pads and rotors, the technical service bulletins which it issued, its ongoing efforts to redesign and improve its brake pads and rotors and to manufacture them for installation on all model year vehicles, its brake coupon program and the relatively high buy-back rate which the company had for the vehicle. We thus conclude that the questions of whether the Sephia possesses the brake system defect alleged and whether defendant lacks the means to repair the defect or replace the defective brake system such as to render it liable for breach of express and implied warranties and under the MagnusonMoss Warranty Improvement Act do predominate over those issues unique to the individual class members.

2. The Existence of Serious Management Difficulties

Under Pa.R.C.P 1708(2), the court must also consider the size of the class and the difficulties likely to be encountered in the management of the action as a class action. While a court must consider the potential difficulties in managing the class action, any such difficulties generally are not accorded much weight. Problems of administration alone 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 (1st Cir. 1972). 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. Id. (citing Buchanan v. Brentwood Federal Savings & Loan Assoc., 457 Pa. 135, 320 A.2d 117 (1974)). Except for some aspects of individual damage determinations, plaintiff’s class claims a uniformly defective brake system design. This case presents no serious management difficulties.

Neither do potential differences in individual damage claims based upon individual experiences and costs associated with attempts to repair the vehicle pose any serious management difficulty. What this case does pose, if not certified, is the severe potential for inconsistent adjudications and the virtual impossibility of individual remedy.

3. Potential for Inconsistent Adjudications

Pennsylvania Rule 1708(a)(3) also requires a court to evaluate whether the prosecution of separate actions by or against individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class. Tn considering the separate effect of actions, the precedential effect of a decision is to be considered as well as the parties’ circumstances and respective ability to pursue separate actions. Janicik, 305 Pa. Super. at 143, 415 A.2d at 462. Were the impossible task of 10,000 individual lawsuits to occur, the costs would overwhelm any recovery and the likelihood of at least some inconsistent verdicts is a real and present danger amounting to a virtual certainty. Class certification is appropriate under these criteria.

4. Extent and Nature of Any Pre-existing Litigation and the Appropriateness of This Forum

Under Pa.R.C.P. 1708(a)(4), (a)(5), and (a)(6), a court should consider the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues, the appropriateness of the chosen forum and whether the amounts recoverable justify a class action. Considering these factors, the court notes that it is a Pennsylvania class sought for certification and sees nothing inappropriate to the choice of Philadelphia as the jurisdiction for litigation. Philadelphia courts have a well-deserved reputation for effectively managing complex litigation to timely resolution.

Rule 1708 also requires the court to consider the amount of damages sought by the individual plaintiffs in determining the fairness and efficiency of a class action. Thus, a court must analyze whether, in view of the complexities of the issues or the expenses of litigation, the separate claims of individual class members are insufficient in amount to support separate claims. Pa.R.C.P. 1708(a)(6). Alternatively, the rules require that the court analyze whether it is likely that the amounts which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action Pa.R.C.P. 1708(a)(7). This criterion is rarely used to disqualify an otherwise valid class action claim. See Kelly v. County of Allegheny, 519 Pa. 213, 215-16, 546 A.2d 608, 609 (1988) (Trial court erred in refusing to certify a class on the grounds that the class members’ average claim was too small in comparison to the expenses incurred.). However, in Klusman v. Bucks County Court of Common Pleas, 128 Pa. Commw. 616, 631, 564 A.2d 526, 534 (1989), the court said: “Where the issue of damages does not lend itself to a mechanical calculation, but requires separate mini-trials of a large number of individual claims, courts have found that the staggering problem of logistics make the damage aspect of the case predominate and renders the class unmanageable as a class action. State of Alabama v. Blue Bird Body Co. Inc., 573 F.2d 309 (5th Cir. 1978).”

“To verify that each of the 108,107 claims suffered actual damages would present an administrative nightmare because of the overwhelming number of transactions between parties that would be required to be examined. Mekani v. Miller Brewing Co., 93 F.R.D. 506 (E.D. Mich. 1982).... This evaluation of the question of manageability, though ultimately involved with the merits, must be examined in order to determine the efficiency of the class action. In re Industrial Gas Litigation, 100 RR.D. 280 (N.D. Ill. 1983).” Numerous courts have certified classes of large numbers with small amounts of potential recovery. The damages alleged herein, much of which can be ascertained on a model year basis, do not present any such problems and can readily be ascertained and managed.

5. The Separate Claims of the Individual Plaintiffs Are Insufficient in Amount to Support Separate Claims or Their Likely Recovery

Rule 1708 also requires the court to consider the amount of damages sought by the individual plaintiffs in determining the fairness and efficiency of a class action. Thus, a court must analyze whether, in view of the complexities of the issues or the expenses of litigation, the separate claims of individual class members are insufficient in amount to support separate claims. Pa.R.C.P. 1708(a)(6). Alternatively, the rules ask the court to analyze whether it is likely that the amounts which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action. Pa.R.C.P. 1708(a)(7). This criterion is rarely used to disqualify an otherwise valid class action claim. See Kelly v. County of Allegheny, 519 Pa. 213, 215-16, 546 A.2d 608, 609 (1988) (Trial court erred in refusing to certify a class on the grounds that the class members’ average claim was too small in comparison to the expenses incurred.). However, in Klusman v. Bucks County Court of Common Pleas, 128 Pa. Commw. 616, 631, 564 A.2d 526, 534 (1989) the court refused to certify a class whose average recovery would have been $3.55. The Commonwealth Court said: “Where the issue of damages does not lend itself to a mechanical calculation, but requires separate mini-trials of a large number of individual claims, courts have found that the staggering problem of logistics make the damage aspect of the case predominate and renders the class unmanageable as a class action. State of Alabama v. Blue Bird Body Co. Inc., 573 F.2d 309 (5th Cir. 1978).”

“To verify that each of the 108,107 claims suffered actual damages, would present an administrative nightmare because of the overwhelming number of transactions between parties that would be required to be examined. Mekani v. Miller Brewing Co., 93 F.R.D. 506 (E.D. Mich. 1982). Petitioners argue these determinations go to the merits. This evaluation of the question of manageability, though ultimately involved with the merits, must be examined in order to determine the efficiency of the class action. In re Industrial Gas Litigation, 100 F.R.D. 280 (N.D. Ill. 1983). We recognize that numerous courts have certified classes of large numbers with small amounts of potential recovery.” The damages herein are ascertainable, not de minimis and quite capable of determination. No problems exist herein for certification.

6. Appropriateness of Equitable or Declaratory Relief

Since plaintiffs seek injunctive relief, it is necessary to consider the criteria set forth in Pa.R.C.P. 1708(b). Under Pa.R.C.P. 1708(b)(2), where equitable relief is sought, a court should 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. In her amended complaint and proofs, plaintiff claims a uniform defect, and a failure to remedy, warn, or appropriately compensate which may make injunctive relief appropriate under this rule.

Having weighed the Rule 1702 requirements, this court finds that a class action is a fair and efficient method for adjudicating plaintiff’s claim. Accordingly, this court makes the following conclusions of law.

CONCLUSIONS OF LAW

(1) The class is sufficiently numerous that joinder of all its members would be impracticable.

(2) There are questions of law and fact common to the class.

(3) Individual questions of fact exist as it pertains to class claims for violation of the UTPCPL.

(4) The claims raised by plaintiff are typical of those claims belonging to absent class members.

(5) Plaintiff will fairly and adequately assert and protect the interests of the class.

(6) Allowing this case to proceed as a class action provides a fair and efficient method for adjudication of the criteria set forth in Pa.R.C.P. 1708.

CONCLUSION

For these reasons, this court grants in part and denies in part plaintiff’s motion for class certification in accordance with the order issued herewith:

(1) A class is herby certified as to Count II, III and IV of the amended complaint and defined as follows:

“All residents of the Commonwealth of Pennsylvania who purchased and/or leased model year 1995-2001 Kia Sephia automobiles for personal, family or household purposes for a period of six years preceding the fding of the complaint in this action.”

(2) Plaintiff Shamell Samuel-Bassett is designated class representative.

(3) Plaintiff’s counsel are appointed as counsel for the class.

(4) The parties shall submit proposals for a notification procedure and proposed form of notice to class members within 20 days from the date of this order. Discovery for trial, if necessary, shall commence.

ORDER

And now, September 17,2004, upon consideration of plaintiff’s motion for class certification, all responses in opposition, the respective memoranda, all matters of record, and in accordance with the contemporaneous memorandum opinion, it is hereby ordered and decreed as follows:

(1) Plaintiff’s motion for class certification is granted in part, denied in part.

(2) A class is hereby certified as to Count II, III and IV of the amended complaint and defined as follows:

“All residents of the Commonwealth of Pennsylvania who purchased and/or leased model year 1995-2001 Kia Sephia automobiles for personal, family or household purposes for a period of six years preceding the filing of the complaint in this action.”

(3) Plaintiff Shamell Samuel-Bassett is designated class representative.

(4) Plaintiff’s counsel are appointed as counsel for the class.

(5) The party shall submit proposals for a notification procedure and proposed form of notice to class members within 20 days from the date of this order. Discovery for trial, if necessary, shall commence.


source: Caselaw Access Project

author: VALASEK, J.,

license: Public Domain

text:
    Emerick v. Fox Raceway

      C.P. of Armstrong County,
    no. 2000-0659-Civil.

      Jonathan B. Mack and Jason E. Matzns, for plaintiffs.

      James R. Miller and Roger R. Pnz, for defendants.
    July 21, 2004
   VALASEK, J.,

— This case arises as a result of injuries the then-minor plaintiff, Frank Emericlc, suffered in a motocross accident April 16, 2000, at Fox Raceway. Minor plaintiff filed a complaint in negligence against Fox Raceway and its owners by and through his mother, Katherine Emericlc. The mother also made a claim for damages in her own right. Defendants have filed a motion for summary judgment, arguing that they had no duty to minor plaintiff, that he is barred from recovery under the doctrine of assumption of risk, and that the mother cannot maintain her claim for loss of consortium. The facts unequivocally established by the record are as follows.

STATEMENT OF THE FACTS

On the day of the accident, minor plaintiff Frank Emerick was 16 years and nine months of age. He did not have his parents’ permission to participate in the motocross race and, in fact, knew that they did not wish him to race at all. Frank Emerick depo., pp. 45-47. Nevertheless, minor plaintiff went to Fox Raceway with his sister, Kassie Emerick, his friend, Robert Schrencengost, and his then-girlfriend with the intention to race that day. Id., pp. 43-48.

Fox Raceway was at the time of the accident a member of the American Motocross Association (AMA), the governing body of motocross racing, which among other things promulgates rules concerning the registration of participants. AMA rules state that “[n]o rider under the legal age of majority in the state in which the meet takes place may compete without the written consent (signature on liability releases and entryforms) of his/her parents or legal guardians present at the meet. ” AMA rules, chapter 2(A)(4), exhibit 2 of plaintiffs’ brief, (emphasis added)

The rules further state: “[a] ‘minor’ release form must be completed for every minor participating in the day’s activities. The parent, legal guardian or authorized adult must print and sign where designated on the releases.” AMA rules, p. 45, exhibit 3 of plaintiffs’ brief. AMA rules provide that the referee or clerk of a course may ask to see any rider ’ s proof of age at sign-in. AMA rules, chapter 5(A)(l)a, exhibit 4 of plaintiffs’ brief.

The event in which minor plaintiff was injured was not an AMA-sanctioned event. However, defendant Dana Hennessy, an owner and primary operator of Fox Raceway, testified at his deposition that Fox Raceway followed AMA rules concerning the hosting of events and registering of participants, regardless of whether or not the race being hosted was an AMA-sanctioned event. Hennessy depo., pp. 46-47.

Hennessy said Fox Raceway had adopted the following policies and procedures. If an individual looked 30 years of age or younger, Fox Raceway personnel would ask how old the individual was, and if an individual looked 20 years of age or younger, the person would ask the individual to produce a valid identification. Id., pp. 66-67. He stated, “That is pretty much the policy for all of the other racetracks that I am familiar with,” indicating that he had checked with them. Id., p. 67.

Flennessy later contradicted himself, stating that individuals under the age of 20 were not required to show any identification. Id., p. 116. At that point, he said he had initially required participants to produce photo identification, but abandoned that policy after the first two or three races he hosted at Fox Raceway because participants did not have any photo identification with them. Id.

Hennessy said Fox Raceway’s policy and procedure concerning parental consent for minors was that a minor participant was to have a parent or legal guardian sign him in to race, and that as a general rule, the parent or legal guardian was required to sign in the minor in the presence of Fox Raceway personnel. Id., pp. 69-70.

Michele Hetrick, a representative of Fox Raceway who was the person in charge of the registration process there, testified about the raceway’s age verification and parental consent policies and procedures:

“Q: What is your understanding of the age verification policy at Fox Raceway?
“A: I ask everyone how old they are. If they look like they are under — you know, if they look under age, if they look under 30,1 will ask them for ID. If they tell me they are 18, in good faith, I believe them.
“Q: Now, if they look under 30, what steps do you take to verify what their age is?
“A: I would ask them for ID. If they look — well, I thing [sic] the first I said was if they look between 20 and 30. If they look like they are under age, I will ask them for ID....
“Q:... Now, for those individuals that look under age to you, what is it that you do to verify those individuals’ ages?
“A: Either ask if their parents are there, ask for ID. If they can’t produce either one of that, then they don’t race.
“Q: So if an individual looks under age to you, you ask them if their parents are present?
“A: First I ask for ID.
“Q: You ask them for a photo ID?
“A: Uh-huh. Yes....
“Q: And if they tell you they don’t have a photo ID?
“A: I will ask them if they have a parent there.
“Q: And if they tell you they don’t have a parent present, what do you do?
“A: They can’t race.
“Q: Do you tell them?
“A: Yep. Sorry, you can’t race.” Hetrick depo., pp. 30-32.

According to minor plaintiff, a day or two prior to racing at Fox Raceway, his friend, Bob Schrecengost, told him he could probably race there, even without parental consent, because they did not check IDs. Frank Emerick depo., p. 51. It is undisputed that Fox Raceway personnel allowed minor plaintiff to enter an adult motocross race despite his being under the age of 18 and did not ask him for any identification.

After completing and submitting the adult entrant paperwork to Fox Raceway and paying an entry fee, minor plaintiff proceeded to line up for the first adult race. Mere moments after the race began, minor plaintiff tried to drive his motocross bike between two riders ahead of him at approximately 60 miles an hour, struck one of the bikes, and fell. Frank Emerick depo., pp. 116-122. As a result of the accident, minor plaintiff suffered injuries which resulted in permanent quadriplegia. He is now confined to a wheelchair.

The testimony elicited from minor plaintiff during his deposition establishes that he had ridden motorbikes for approximately 11 years, Frank Emerick depo., pp. 21-22, and that he understood that racing motorcycles was dangerous. Id., pp. 55, 67. Minor plaintiff admitted that his parents had forbidden him from racing because they believed it was dangerous. Id., pp. 46-47. He also admitted that he had misrepresented his age when he registered for the race by selecting and presenting to Fox Raceway release and waiver of liability forms for racers 18 years of age and older. Id., pp. 45, 48, 63, 86.

Plaintiffs submitted an expert report by Stan Brekne in opposition to defendants’ motion for summary judgment. In Brekne’s opinion:

“The age verification procedures employed at Fox Raceway were inadequate. Hosts of these types of activities should reasonably anticipate and expect the possibility that a minor will misrepresent his/her age in order to participate in a racing event. . . . Therefore, it is necessary that hosts of these types of events take appropriate steps to verify the accurate age of participants. The most practical step would be to require participants to produce valid photo identification during the registration process. This step would significantly eliminate the possibility of a minor misrepresenting his/her age in order to participate in a racing event. A policy that simply relies on the truthfulness of minors is not reasonable and in reality equates to having no policy at all.” Plaintiffs’ expert report, p. 6.

DISCUSSION

The standard to be used by a trial court in determining whether a motion for summary judgment should be granted is well established. Pa.R.C.P. 1035.2(2) provides that summary judgment shall be granted “if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

In determining whether to grant summary judgment, a trial court must resolve all doubts against the moving party and examine the record in a light most favorable to the non-moving party. Kelly v. Ziolko, 705 A.2d 868, 870 (Pa. Super. 1997). Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Id. The moving party bears the burden of proving that there is no- genuine issue of material fact and that judgment as a matter of law is appropriate. Butterfield v. Giuntoli, 448 Pa. Super. 1, 11, 670 A.2d 646, 651 (1995).

In a negligence action such as the instant case, the elements required to be pled and proven by a plaintiff are:

“(1) [T]he existence of a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct; (2) a failure on the part of the defendant to conform to that duty, or a breach thereof; (3) a causal connection between the defendant’s breach and the resulting injury; and (4) actual loss or damage suffered by the complainant.” Atcovitz v. Gulph Mills Tennis Club Inc., 571 Pa. 580, 586, 812 A.2d 1218, 1222 (2002), citing Orner v. Mallick, 515 Pa. 132, 135, 527 A.2d 521, 523 (1987).

Defendants’ motion for summary judgment contains three prongs: (1) that Fox Raceway owed no duty to minor plaintiff; (2) that minor plaintiff assumed the risk of injury and hence is barred from recovery; and (3) that plaintiff cannot maintain a claim for loss of consortium. We first address the loss of consortium argument.

It is well established in Pennsylvania that “claims for loss of consortium are limited to spouses and do not extend to the loss of a child’s consortium.” See Jackson v. Tastykake Inc., 437 Pa. Super. 34, 39, 648 A.2d 1214, 1217 (1994), citing Quinn v. City of Pittsburgh, 243 Pa. 521, 90 A. 353 (1914). Accordingly, Katherine Emerick’s claim for loss of consortium with respect to her son in Count II of the complaint cannot be maintained as a matter of law.

However, a careful reading of Count II of the complaint shows that it is not limited to allegations of loss of consortium. Specifically, paragraph 22 alleges that plaintiff mother

“lost the comfort and society of her youngest son and has sustained both emotional and economic damages, including, but not limited to, the following:
“(a) Loss to [sic] society and companionship of her youngest son, Rocky Emerick;
“(b) As Rocky Emerick was the ‘man of the house,’ a loss of services, as he was responsible for yard work, home repairs and other such duties;
“(c) medical bills
“(d) costs for repairs to the home; and
“(e) Loss of past, present and future income due to the failure of her son, Rocky Emerick, to be able to assist her in her family-run equine business.” Paragraph 22 of complaint, (emphasis added)

It is clear from the above that plaintiff mother is seeking compensation for economic damages in addition to damages for loss of consortium. Under Pennsylvania law, plaintiff mother is entitled to recover such damages. As the court explained in Stambaugh v. Smith:

“In the case of injury to a minor child, Pennsylvania courts have allowed parents to recover money necessarily expended in treatment of the child’s injuries and for lost earnings of the child during his minority: Meisel v. Little, 407 Pa. 546, 180 A.2d 772 (1962). Pecuniary losses to parents of minor children which are recoverable at law are based upon the parents’ duty to maintain, protect and educate the child and their right to the earnings of the child during its minority: Woeckner v. Erie Electric Motor Company, 182 Pa. 182, 37 A. 936 (1897). As stated by the Pennsylvania Supreme Court in Goodhart v. Penna. R. Co., 177 Pa. 1, 14, 35 A. 191 (1896): ‘The expenses for which a plaintiff may recover must be such as have actually been paid, or such as in the judgment of the jury are reasonably necessary to be incurred. The plaintiff cannot recover for the nursing and attendance of the members of his own household, unless they are hired servants.’ ” 18 D.&C.3d 780, 786-87 (Franklin Cty. 1981). (emphasis added) See also, Steiner by Steiner v. Bell Telephone Co. of Pa., 358 Pa. Super. 505, 515, 517 A.2d 1348, 1353 (1986) (“A parent can recover only pecuniary losses, such as loss of services and medical expenses, for injury to his child.”); Simmons v. Parkette National Gymnastic Training Center; 670 F. Supp. 140, 142 (E.D. Pa. 1987) (“Under Pennsylvania law personal injury to a minor gives rise to two separate and distinct causes of action, one the parents’ claim for medical expenses and loss of the minor’s services during minority, the other the minor’s claim for pain and suffering and for the losses after minority.”).

Because Katherine Emerick’s claim for loss of consortium with respect to her son cannot be maintained as a matter of law, the court will grant summary judgment in favor of defendants on that claim. However, the court will allow plaintiff mother’s claim for cognizable economic damages to continue. As to that part of defendants’ motion for summary judgment, it is denied.

We turn next to the argument that as a matter of law, defendants had no duty to minor plaintiff because Fox Raceway is an amusement facility and the risk of a motocross rider being injured while participating in a motocross race is inherent in the nature of the activity itself.

In support of this “no-duty” proposition, defendants cite Romeo v. Pittsburgh Associates, 787 A.2d 1027, 1030 (Pa. Super. 2001), which restated the general rule in Pennsylvania that “operators of a baseball stadium, amusement park, or other such amusement facilities have no duty to protect or to warn spectators from ‘common, frequent and expected’ risks inherent in the activity. ” Id., citing Hughes v. Seven Springs Farm Inc., 563 Pa. 501, 762 A.2d 339, 343 (2000). (emphasis added)

la Romeo, the plaintiff was injured by a foul ball while sitting in the stands during a Pittsburgh Pirates baseball game. The court said, “[T]he risk of being struck by a foul ball while sitting in the bleachers is exactly the type of ‘common, frequent, and expected5 risk inherent in a baseball game" and held that the defendant ball club had no duty to warn or protect plaintiff in that situation. Id. at 1031.

Romeo contrasted its case with the fact situation in Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978). In Jones, the Pennsylvania Supreme Court upheld a jury verdict for a plaintiff who had been struck by a foul ball during pregame batting practice while using the interior walkway from the stadium’s outer concourse to the seats. The Jones case, which analyzed the line of “no-duty" cases at great length, is extremely instructive on the parameters of the “no duty" rule. The Supreme Court noted there, “Only when the plaintiff introduces adequate evidence that the amusement facility in which he was injured deviated in some relevant respect from established custom will it be proper for an ‘inherent-risk' case to go to the jury." Id., 483 Pa. at 84, 394 A.2d at 550. (emphasis added)

The court further explained that an amusement facility “will be liable for injuries to his patrons only where he fails to ‘use reasonable care in the construction, maintenance and management of [the facility], having regard to the character of the exhibitions given and the customary conduct of patrons invited.’" Id. at 81, 394 A.2d at 549. (citations omitted) (emphasis added)

The Jones court found that the facts before it presented exactly such a case, since “[t]he openings built into the wall over right field are an architectural feature of Three Rivers Stadium which are not an inherent feature of the spectator sport of baseball. They are not compelled by or associated with the ordinary manner in which baseball is played or viewed.” Id. at 86, 394 A.2d at 551. Thus, the court ruled the defendant could be found liable to the plaintiff for what was, in essence, a case alleging negligent design.

The Jones court cautioned that the “no-duty” rules “apply only to risks which are ‘common, frequent and expected,’ Goade, supra, and in no way affect the duty oftheatres, amusement parks and sports facilities to protect patrons fromforeseeably dangerous conditions not inherent in the amusement activityId. at 85, 394 A.2d at 551. (emphasis added)

Jones went on to discuss the duties of a possessor of land toward business invitees:

“Possessors of land owe a duty to protect invitees from foreseeable harm. Restatement (Second) of Torts §§341A, 343, 343A (1965). With respect to dangers which are obvious, the Restatement rule provides:
“ ‘A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.’ Restatement (Second) of Torts §343A.
“Comment f to that section is worthy of note:
“There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection.
“Thus, an invitee in certain circumstances must be protected even from obvious dangers.” Id. at 88, 394 A.2d at 552. (emphasis added)

In the instant case, defendants argue that minor plaintiff is deemed to have anticipated, and in fact did anticipate, the obvious risk of being injured while racing. As a result, defendants argue, Fox Raceway had no duty to protect minor plaintiff from harm.

Plaintiffs respond that the very essence of their case is that defendants failed to exercise reasonable care in the management of Fox Raceway by failing to employ reasonable procedures to verify the age of racers and to obtain parental consent if needed. Plaintiffs state:

u[T]his is a policy and procedure case concerning the defendants ’ age verification and parental consent pro cedures. (See plaintiffs’complaint at paragraphs 10,11, 16(a), (b), (d), (e), (f), (h), and (j).) (See also,plaintiffs’ expert report attached hereto____) The primary areas of inquiry are twofold: (1) what procedures, if any, were employed by defendant Fox Raceway to verify the age of participants and obtain parental/legal guardian consent on behalf of minor participants; and (2) were those procedures reasonable under the circumstances.” Plaintiffs’ brief in response to motion for summary judgment, p. 4. (emphasis added)

Defendants concede that an owner of an amusement facility has a duty to exercise reasonable care in the management of it. See defendants’ motion for summary judgment, para. 9; defendants’ brief, p. 10. However, defendants claim that minor plaintiff’s injuries were not a result of their management practices: i.e., their failure to verify his age before allowing him to enter an adult race. Rather, they claim that his injuries resulted from his deliberate misrepresentation of his age and an accident which was an inherent risk of racing.

The court disagrees with defendants’ analysis. We find that the danger to be guarded against here was the entirely foreseeable possibility that a minor would try to misrepresent his age and the concomitant danger of allowing a minor to unilaterally choose to engage in an attractive but dangerous activity without appropriate parental guidance and consideration concerning the minor’s ability to safely participate in that activity.

As the Pennsylvania Supreme Court stated in the case of Styer v. Reading, 360 Pa. 212, 217, 61 A.2d 382, 385 (1948), the question is whether “the conduct of the children [was] a foreseeably dangerous activity... creating an unreasonable risk of bodily harm to them[.]” Id. Styer involved a negligence action against a city for injuries resulting when an 11 -year-old plaintiff was struck in the eye with a rubber-tipped badminton shuttlecock batted by another child in a small poorly-lighted room constituting part of a public playground that the city operated.

After the children batted the shuttlecock between them for several minutes at a close distance without a net in the presence of the playground leader, plaintiff told her companion that she intended to quit playing and tossed the shuttlecock to him. He in turn batted it back at her as she turned away and the shuttlecock struck her in the eye, causing the eye to ultimately be removed. The court held that the city had a duty to exercise reasonable care to control the behavior of the children, and that the negligence of one child toward another was not an independent, intervening act which absolved the city of responsibility for proper supervision of the children at the playground.

As the court noted in Styer, “Children must be expected to act upon immature judgment, childish instincts and impulses; others who are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions accordingly.” Id. at218, 61 A.2d at 385. (citations omitted)

Fox Raceway’s own representatives testified they had a policy to prevent minors from racing at the facility unless they had a parent or legal guardian’s signed consent and to ask for photo IDs if an entrant appeared to be under age. Implicit in Fox Raceway’s adoption of that policy was the recognition that minors must be safeguarded from themselves and protected from their own indiscretion and immature judgment.

Pennsylvania law recognizes this reality and as a consequence, imposes numerous restrictions upon minors. For example, minors are deemed incapable of possessing the legal capacity to enter into binding contracts. Simmons v. Parkett National Gymnastic Training Center, 670 F. Supp. 140 (E.D. Pa. 1987). Minors are not permitted to institute, settle or otherwise resolve a legal claim on their own behalf. See Pa.R.C.P. 2027 and 2039. Additionally, minors are not granted or are denied the legal right to marry, vote, purchase alcoholic beverages and cigarettes, and serve in the military. The rationale behind such restrictions is that minors are presumed to be incapable of making informed, knowing and intelligent decisions concerning their own best interests.

This legal presumption concerning minors has great significance here. This is a case where defendants owned and operated a motocross racetrack for profit so that individuals could engage in the dangerous sport of motocross racing. Motocross racing holds a particular fascination for young people, who may or may not be able to maturely engage in it. That question is for their parents or legal guardians to decide. Although owners and operators of such facilities are certainly not insurers, they have a duty to take reasonable measures to safeguard against minors participating in such dangerous activities without parental consent.

When a person constructs or operates a dangerous or hazardous instrumentality, Pennsylvania law imposes a duty of exercising a correspondingly high degree of care on the part of those creating such structures. Stewart v. Motts, 539 Pa. 596, 601, 654 A.2d 535, 537 (1995). “[T]he care which it is reasonable to require of [an] actor varies with the danger involved in his act and is proportionate to it[, and t]he greater the danger, the greater the care which must be exercised____” Id., quoting Restatement (Second) of Torts §298.

As defendants warn in their entry forms and releases, motocross racing is a dangerous sport. Fox Raceway had a duty to create and follow reasonable procedures to ensure that minors did not misrepresent their age to race without parental consent. Given what defendants themselves admit was a high degree of danger, a high degree of care was required.

What is the source of defendants’ duty? It comes from the duty to exercise reasonable care in the management of its facility. See Romeo, supra; Hughes, supra and Jones, supra. It can also be implied from the AMA standards which Fox Raceway adopted as its own, Flennessy’s admission that the other racetracks he checked with required the production of photo IDs, and public policy considerations. As the Pennsylvania Superior Court noted in Petrongola v. Comcast-Spectacor L.P.:

“Whether a duty exists under a particular set of facts is a question of law. It has long been hornbook law that a duty arises only when one engages in conduct which foreseeably creates an unreasonable risk of harm to others. . ..
“Whether a duty exists is ultimately a question of fairness. The inquiry involves weighing the relationship of the parties, the nature of the risk and the public interest in the proposed solution. Our duty analysis depends on many factors and is necessarily rooted in public policy considerations, i.e., our ideas of history, morals, justice, and society in general in determining where the loss should fall.... Furthermore, duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the question____To give it any greater mystique would unduly hamper our system of jurisprudence in adjusting to the changing times.” 789 A.2d 204, 210 (Pa. Super. 2001). (emphasis added)

An analysis of the “no-duty” cases defendants cite in attempting to avoid liability reveals that the underlying rationale of the cases is basically rooted in what the courts consider to be good public policy. The courts’ rationale is that many amusement activities are understood to carry a certain risk, and that it is not fair to sue the purveyor of the activities for injuries one sustains where one has expressly or impliedly assumed the risk of such injuries. Implicit in the cases is an underlying assumption that such activities are beneficial to society, and that individuals who engage in them make rational choices about whether or not to participate.

We believe it is also important to consider other public concerns, such as a minor’s admittedly diminished capacity to appreciate risks to his own health and safety, and to make informed judgments about such risks. The necessity of erecting legal safeguards against the foreseeably rash decisions of minors is already well established in Pennsylvania law.

Where, as here, a racetrack operator can effectively guard against the risk of a minor misrepresenting his age to participate in a race that poses substantial physical danger through the minimal measure of requiring him to produce a photo ID, and where defendants themselves have said that inquiring into a racer’s age was their “policy,” to declare that the operator has no duty to take reasonable measures to verify a racer’s age is contrary to good public policy.

The same reasoning militates against barring minor plaintiff’s suit on the basis of the defense of assumption of risk. The Pennsylvania Supreme Court has recently reiterated that “[a]s a general rule, the doctrine of assumption of the risk, with its attendant ‘complexities’ and ‘difficulties,’ see generally, Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993). . . has been supplanted by the Pennsylvania General Assembly’s adoption of a system of recovery based on comparative fault in the Comparative Negligence Act. 42 Pa.C.S. §7102(a)-(b).” Hughes v. Seven Springs Farm Inc., 563 Pa. 501, 762 A.2d 339, 341 (2000). See also, Romeo v. Pittsburgh Associates, 787 A.2d at 1031 (“With a few minor exceptions, the assumption of risk doctrine has since been abolished in Pennsylvania, and... the Pennsylvania Supreme Court [has] recast the assumption of risk analysis ... in terms of the ‘no-duty’ rule.”).

Recent appellate decisions have emphasized that “a plaintiff will not be precluded from recovering except where it is beyond question that he voluntarily and knowingly proceeded in the face of an obvious and dangerous condition and thereby must be viewed as relieving the defendant of responsibility for his injuries.” Bullman v. Giuntoli, 761 A.2d 566, 570 (Pa. Super. 2000) (emphasis in original), quoting Struble v. Valley Forge Military Academy, 445 Pa. Super. 224, 665 A.2d 4 (1995).

A release of liability agreement executed by a minor is not enforceable in Pennsylvania because it is contrary to public policy. Simmons v. Parked National Gymnastic Training Center, 670 F. Supp. 140 (E.D. Pa. 1987); Shaner v. State System of Higher Education, 40 D.&.C.4th 308 (Dauphin Cty. 1998). Tt makes no sense to limit a minor’s ability to expressly assume a risk (by signing a release in advance), and at the same time allow him to impliedly assume that very risk.

For all these reasons, we find that minor plaintiff did not either expressly or impliedly assume the risk of injury while racing, and as such, is not barred from recovery. Although it cannot be said that a 16-year-old bears no responsibility for his actions, we find it much more appropriate to submit the issue of the parties’ comparative negligence to the jury than to bar recovery against defendants as a matter of law.

Defendants’ motion for summary judgment on the grounds that defendants had no duty to minor plaintiff and that minor plaintiff assumed the risk of injury while racing is hereby denied. The court will grant partial summary judgment in favor of defendants as to the mother’s loss of consortium claim.

An appropriate order will be entered.

ORDER

And now, July 21, 2004, for reasons set forth in the foregoing opinion, it is hereby ordered as follows:

(1) the plaintiff Katherine Emerick’s claim for loss of filial consortium is hereby dismissed; and

(2) defendants’ motion for summary judgment is denied in all other respects.

      . Although this court did rule that plaintiff parents could proceed with their loss of “comfort and society’’ claim for the death of their minor son in Wynkoop v. Luke, 43 D.&C.4th 16 (Armstrong Cty. 1999), that was in the context of a wrongful death claim only. We held that under the Wrongful Death Statute, such loss could be compensable if, and only if, it resulted in a pecuniary loss.

      . See Telega v. Security Bureau Inc., 719 A.2d 372 (Pa. Super. 1998) (no duty rule did not bar recovery by spectators at professional football game against provider of stadium security service for injuries incurred during disturbance among fans seeking souvenir ball in end zone).

      . The difficulty of separating the inquiry of whether a duty exists from the question of assumption of risk necessitates that the two will sometimes be discussed in tandem rather than separately. See Carrender v. Filterer, 503 Pa. 178, 188, 469 A.2d 120, 125 (1983) (citations omitted) (emphasis added) (“to say that the invitee assumed the risk of injury from a known and avoidable danger is simply another way of expressing the lack of any duty on the part of the possessor to protect the invitee against such dangers.”).

      . To the extent that their complaint proffered any other theories of recovery, plaintiffs have now expressly withdrawn them. See brief in opposition to motion for summary judgment, p. 2, para. 5.

      . See O’Leary Estate, 352 Pa. 254, 256, 42 A.2d 624, 625 (1945), which said: “All lawyers know that the protection of infants is one of the chief concerns of the law. The rule is that no one may deal with a minor, except for necessaries. ... An infant is not competent to contract. This positive inhibition is the way of the law to protect infants against their own lack of discretion and against the snares of designing persons.”

      . See also, Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166, 1169 (2000) (“The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and [the] foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.”).