Tenants certified as class in suit over electricity shutoff in apartment complex

Wednesday, January 3, 2001
By Marcy Kowalchuk

Special in the Suburban

A Montgomery County judge has certified a class of former and current tenants of an Elkins Park apartment complex who claim they suffered damages when their electrical power was turned off in April 1998, due to nonpayment of service.

Joanna Johnson, a former tenant of Lynnewood Gardens Apartments in Cheltenham Township, leads the class. Johnson claims that a Cheltenham Township ordinance prohibits electrical shutoff for nonpayment. She also relies on the lease, which states that electrical service can only be stopped "because of accident, emergency, repairs or changes until the work is complete."

The suit accuses Grand Cru Property One Limited Partnerships, the owner of the building, of wrongfully discontinuing electrical service to tenants. The suit also names as defendants the manager of the apartment complex, NHP Management Co., and Energy Management Systems Inc., which oversaw the provision of the electrical service under a contract with Grand Cru.

On behalf of Johnson, Thomas More Marrone, of Feldman Shepherd Wohlgelernter & Tanner filed a fourth amended complaint for claims including breach of contract, breach of warranty of habitability, negligence, violations of Pennsylvania Consumer Protection law and breach of the property management agreement.

The tenants' electrical service was charged as added rent pursuant to their lease agreements. Johnson submitted sufficient evidence showing that the entire class had their electrical service shut off or discontinued, the court held.

In granting Johnson's motion for class certification, Judge William R. Carpenter found Johnson submitted sufficient evidence establishing that common issues of law or fact predominate, thereby satisfying the prerequisites to a class action set out in Rule 1702 of the Pennsylvania Rules of Civil Procedure.

"To begin, the plaintiffs' claim is based on the defendant's act of shutting of all their electric service in April 1998, and the demand of payments thereafter," the court noted. "Further, the claim is based on the misrepresentation by the defendants that they were legally entitled to discontinue service, and charge late fees and penalties to have it reinstated when a Cheltenham township ordinance expressly states the contrary."

The court noted the lease does not give the defendants the right to shut off electrical service to tenants except in the case of accidents, emergency, repairs or changes. Moreover, the Cheltenham Township code states that “no owner may shut off or discontinue any utility required by the code except for temporary interruption caused by repairs, alterations, or emergencies” (Chapter 167, Section 167-5.E).

Further, Johnson cites 23 issues in her motion that if proved for one member of the class, they are proved to all members of the class, the court added.

On behalf of the defendants, attorney Mark J. Hill argued that Johnson's claim for fraud and violations of the consumer protection laws are not common to the class. Specific questions regarding reliance issues exist for each plaintiff that require individual testimony, the defendants maintained.

The court disagreed, finding reliance does not need to be proved in this case because it is implicit in the fiduciary relationship that existed between Johnson and the defendants.

"The class members and defendants were bound by a lease agreement that provided for electric services as added rent. As beneficiaries of the agreement, defendants were bound by law to provide electrical service regardless of default on payment," Judge Carpenter held. "[T]his relationship implicitly establishes the plaintiff's reliance."