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Between the allocatur, briefing and argument processes, it can take years for a case to be decided by the Pennsylvania Supreme Court. But it took the justices just over six months to dispose of the most recent appeal in Basile v. H&R Block Inc., a case that raises tough questions about how state law treats class decertification and appeals brought by non-aggrieved parties. In a paragraph-long per curiam order filed late Tuesday, the court vacated the Superior Court’s most recent holding in the marathon litigation and remanded with instructions to discuss precedent and rules concerning the matter’s two key issues. Defense counsel James Sargent of Lamb McErlane in West Chester said he believes that with the order, the justices are “certainly saying to the Superior Court, �Take another look at our rules. Take a look at your own decisions. You got it wrong.’” “This is really an extraordinary relief in the sense that I can remember only two summary grants of allocatur in the year that I was on the court,” said Sargent’s partner William Lamb, who was appointed an interim justice in 2003. Steven Angstreich of Levy Angstreich Finney Baldante Rubenstein & Coren in Philadelphia, who serves as plaintiffs counsel in Basile, did not immediately respond to a call seeking comment. Basile is more than 12 years old and has traveled up and down the ladder of state trial and appellate courts at length. According to opinions filed in the case, Sandra Basile had claimed in her 1993 complaint that the “rapid refunds” Block had promised her when she hired them to prepare her tax returns in the early 1990s were actually short-term, high-interest loans. A class was certified as to Basile’s breach of fiduciary duty claim in 1997. Several months later, however, Philadelphia Common Pleas Senior Judge Stephen E. Levin ruled in favor of a Block motion for summary judgment. On appeal, a 1999 Superior Court panel reversed Levin’s decision as to summary judgment. But 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, but sent the case back down for resolution of other challenges to the plaintiffs’ claims. 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, which he granted in January 2004. In December 2004, a three-judge panel of the Superior Court affirmed. In March, an en banc panel of the Superior Court had ruled 6-3 that Levin should not have decertified the class in Basile since 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. In so holding, the majority of the en banc panel argued 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,” Judge John L. Musmanno wrote on behalf of the majority. When the class members appealed the summary judgment order, Musmanno continued, Block cross-appealed, but only as to the agency relationship issue and not as to class certification. In her dissenting statement in Basile, Judge Maureen 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 [Pennsylvania's] 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. The justices seem to have been persuaded by Lally-Green’s take: One of the two precedents they specifically instructed the Superior Court to discuss in its next Basile decision is Lally-Green’s 2002 50-page opinion in Debbs v. Chrysler Corp., in which Lally-Green and two colleagues opted to decertify a proposed statewide class. The Debbs panel reasoned that Pennsylvania civil procedure rules forbid using the complaint amendment process to transform a garden-variety tort claim into a potentially massive class action. Lamb was co-defense counsel in Debbs as well. The other precedent cited by the justices in their remand order in Basile was Justice Max Baer’s 2005 opinion in Hospital and Healthsystem Association of Pennsylvania v. Department of Public Welfare, which reviews tests for determining whether or not a particular party in a matter should be considered aggrieved. The justices’ Basile order also directs the Superior Court to discuss relevant Pennsylvania rules: Rules of Appellate 501 and 511 concern aggrieved parties and cross-appeals, respectively, while Rule of Civil Procedure 1710 deals with class certification issues. “There are some appellate judges [in Pennsylvania] who believe that even though the other side didn’t lose, in order to protect the record in the event that the loser wins on appeal, [the other side has] to file a cross-appeal,” Lamb said. “And the Supreme Court [is saying in its Basile order], �That’s just not the rule’.” If the Superior Court en banc panel majority’s March holding in Basile were allowed to stand, Sargent said, “The courts would be inundated with useless, immaterial cross-appeals.”

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