KNOWLES v. STANDARD SAVINGS LOAN ASSOC

December 13, 1979.

Plaintiffs-Respondents seek to dismiss appeal from the order of class certification requiring the defendant-appellant to identify class members and providing for membership notification. Appellant argues that class certification is a decision on the merits and affects substantial rights, therefore, appealable by virtue of S.C. Code § 14-3-330 (1976). We disagree.

Class certification, essentially procedural in nature, does not involve substantial or essential legal rights which require attention prior to final judgment. See Ex Parte Ferguson, 82 S.C. 563, 64 S.E. 750 (1909), wherein an order requiring certain individuals be named as defendants was held merely an administrative act, not subject to appeal. Neither does certification reach the "merits" of the underlying cause of action as defined by this Court in Henderson v. Wyatt, 8 S.C. 112 (1887):

An order to involve the merits must finally determine some substantial matter forming the whole or a part of some cause of action or defense in the case in which the order is entitled.

The U.S. Supreme Court recently approved federal decisions holding class certification interlocutory and not subject to immediate appeal. Coopers and Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed. 2d 351 (1978). The rationale of Coopers restricting appellate review in order to prevent the "debilitating effect on judicial administration caused by piecemeal appeal disposition of what is, in practical consequence, but a single controversy" is equally applicable to certification question in this State. Coopers, supra, quoting Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2149, 40 L.Ed. 2d 732 (1974).

We hold that class certification orders are intermediate and interlocutory. Accordingly, the Motion to Dismiss is granted and the appeal is hereby dismissed. Accord, Atreco-Florida, Inc. v. Beliner, 360 So.2d 784 (Fla. 1978) (Per Curiam).