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A Philadelphia judge should not have decertified a class where the defense did not challenge the original class certification order immediately after summary judgment proceedings in the case caused that order’s status to shift from interlocutory to appealable, an en banc panel of the Superior Court has ruled in a 6-3 holding. But the minority in Basile v. H&R Block Inc. reasoned that since H&R Block had been granted summary judgment as to all issues at the trial level, it was not an “aggrieved party” and thus had no right to appeal. The case also appeared to spark a debate within the Superior Court as to whether it should suggest, or even order, a trial judge’s recusal in a particular matter. At the end of its opinion, the majority in Basile strongly suggested that a jurist other than Philadelphia Common Pleas Senior Judge Stephen E. Levin oversee litigation in Basile on remand. “Upon review, [the class members] have not established that the trial judge’s actions merit an order to the trial judge to recuse,” Judge John L. Musmanno wrote. “Nevertheless, we note that two previous decisions of the trial court in this case have been reversed on appeal. This fact alone does not establish partiality, bias or prejudice on the part of the trial judge. However, it might be appropriate upon remand for this case to be assigned to a different judge.” But two members of the panel who otherwise sided with the majority took issue with the fact that the recusal issue was even broached in their opinion. “While the majority in the within case merely ‘recommends’ a different trial judge upon remand, it is becoming a disturbing practice on our court to suggest and in some cases even order that a different trial judge be assigned,” Judge Correale F. Stevens wrote in a separate opinion. He was joined in his opinion by Judge Jack A. Panella. Besides Musmanno, Stevens and Panella, the members of the majority as to the decertification issue were President Judge Kate Ford Elliott and Judges Debra Todd and Seamus P. McCaffery. Judge Maureen Lally-Green, who was joined by Judges Joseph A. Del Sole and Joan Orie Melvin, argued in a dissenting statement that H&R Block had not waived its right to challenge the class certification order in failing to do so immediately after summary judgment was granted. The case is more than a dozen years old and has traveled up and down the ladder of state trial and appellate courts at length. According to the opinions, Sandra Basile had claimed that the “rapid refund” Block had promised her when she hired them to prepare her tax returns in the early 1990s were actually short-term, high-interest loans. Basile’s action was filed in 1993, and a class was certified as to the breach of fiduciary duty claim in 1997. Several months later, however, Levin granted Block a motion for summary judgment. On appeal, a Superior Court panel reversed Levin’s decision as to summary judgment in 1999. In 2000, the state Supreme Court concluded it had not been proved that Block had been acting as the plaintiffs’ agent for the purposes of the transactions in question. On remand, a Superior Court panel found in 2001 that the class members had presented prima facie evidence of a confidential relationship between themselves and Block, and remanded back down to Levin for further proceedings on that issue. It was at this point in the case that Levin allowed Block to file a decertification motion. “Thereafter, [the class members] contend that the trial court scheduled, sua sponte, a settlement conference, at which the trial court recommended that [the plaintiffs] accept a $10 million settlement offer from [Block],” Musmanno wrote. “[They] refused the settlement offer.” The class members filed a recusal motion, but before it was ruled on, Musmanno wrote, Levin granted Block’s decertification motion in January 2004. In December 2004, a three-judge panel of the Superior Court affirmed. (Musmanno, the only nonsenior member of that panel, dissented.) In the latest decision, the majority of the en banc panel concluded that Block had waived its challenge to class certification. They noted that under relevant Pennsylvania case precedent, interlocutory orders – such as class certification orders – that are not immediately appealable are able to be challenged in an appeal of a subsequent, final judgment in a case – such as a summary judgment ruling. “We conclude that the May 1997 interlocutory order of the trial court that granted class certification became appealable when the trial court granted summary judgment in December 1997,” Musmanno wrote. When the class members appealed the summary judgment order, he continued, Block cross-appealed, but only as to the agency relationship issue and not as to class certification. In her dissenting statement, Lally-Green reasoned that Block had not been required to challenge the certification in 1997 in order to preserve the issue for appeal. “I respectfully suggest that, under our current Rules of Appellate Procedure, since H&R Block was not an ‘aggrieved party,’ it cannot be faulted for failing to raise issues in a ‘protective cross-appeal’ that it was not required to file,” she wrote. In his separate opinion as to the trial judge recusal suggestion issue, Stevens argued that “once we suggest a trial cannot be impartial in one case, a lawyer may seek recusal of the trial judge in another matter with similar circumstances.” Basile does not mark the first time Stevens has lodged such an argument. In January 2005, a two-judge majority held in Commonwealth v. Klueber that Northampton County Judge Stephen G. Baratta abused his discretion when he imposed a minimum 33-and-a-half year sentence on a defendant who pleaded guilty to 134 counts of sexual abuse of children. The majority further ordered that on remand, a different judge preside over re-sentencing in the matter. But in a dissent, Stevens argued that the fact that the majority disagreed with the sentence Baratta handed down does not necessarily mean Baratta abused his discretion. Block’s attorney in Basile, William Lamb of Lamb McErlane in West Chester, said that “normally, the issue of recusal is really left to the individual judge. “I can’t understand why the majority phrased it the way they did,” Lamb, a former state Supreme Court justice, said of the apparent suggestion in Musmanno’s opinion that the matter be assigned to a different member of Philadelphia’s common pleas bench. “I’ve never heard of such a thing before.” As for the waiver of the certification challenge issue, Lamb said Block would appeal. Steven Angstreich of Levy Angstreich Finney Baldante Rubenstein & Coren in Philadelphia, who serves as class counsel in Basile, said he believes the members of the panel’s minority incorrectly viewed the class certification and summary judgment orders as one single order. “Thirteen years this case has been kicking around,” he said. “It’s time to get this case to trial.” (Copies of the 14-page opinion in Basile v. H&R Block Inc. , PICS No. 06-0310, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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