dissenting. I respectfully dissent from the majority’s holding that an order, “pursuant to Civ. R. 23(C) determining that an action shall or shall not be maintained as a class action, is a final appealable order * * *.” (Emphasis added.) A ruling that an action may be maintained as a class action is totally different from the denial of certification. Hence, I cannot initially accept that they both should be treated the same on the issue of appealability as final orders.
The majority bases its holding on Amato v. General Motors Corp. (1981), 67 Ohio St. 2d 253, 21 O.O. 3d 158, 423 N.E. 2d 452, wherein it was held that certification affects a substantial right and is made in a special proceeding. I agree that class certification affects a substantial right. However, I do not agree that it is done in a “special proceeding.” Additionally, I can find no *76support for such a holding concerning class certification either in Ohio or other jurisdictions.
Recently this court determined that an order in a declaratory judgment action pursuant to R.C. Chapter 2721 affected a substantial right in a special proceeding in General Acc. Ins. Co. v. Insurance Co. of North America (1989), 44 Ohio St. 3d 17, 540 N.E. 2d 266. However, a declaratory judgment is an independent action determining legal rights. This is not the case with certification of a class action, which is a preliminary procedure. To term a preliminary procedure provided by rule a special proceeding would consequently have broad ramifications and open the door to a flood of piecemeal appeals.
Consequently, if class certification is not a special proceeding, in order for it to be a final order, we must consider the remaining criteria found in R.C. 2505.02 which define final orders other than ones made in special proceedings. R.C. 2505.02 defines “final order” as including “[a]n order that affects a substantial right in an action which in effect determines the action and prevents a judgment * * *.” Class certification does neither. We simply have to look to Civ. R. 23(C)(1), which provides as follows:
“As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.” An order which may be changed or modified is interlocutory.
“* * * An interlocutory judgment is provisional or preliminary; it is made before a final decision, for the purpose of ascertaining a matter of law or fact preparatory to a final judgment, or it determines some preliminary or subordinate point or plea, or settles some step, question, or default arising in the progress of the cause, but does not adjudicate the ultimate rights of the parties or finally put the case out of court. * * * For some purposes, a judgment is not regarded as final until expiration of the period which the judgment remains within the inherent power of the court to modify or vacate * * (Footnotes omitted; emphasis added.) 47 American Jurisprudence 2d (1969) 123-124, Judgments, Section 1053.
From this it can be seen that certification of a class neither determines the action nor prevents a judgment. At any time during the proceedings the court can decertify part or all of the class. It would be wholly inconsistent with a considerable line of cases to hold that if a party opposing certification does not appeal within thirty days of certification its right to appeal is lost. The reason is that at any time during trial of the certified class action the court may change its previous order. There would be no reason for a party to attempt an appeal from such an obviously interlocutory order.
Other jurisdictions have held that certification of a class action is not immediately appealable. The court in Pincus v. Mut. Assurance Co. (1974), 457 Pa. 94, 321 A. 2d 906, stated:
“We note at the outset that an order permitting a suit to proceed as a class action is not only an interlocutory order, but also that it is the type of interlocutory order which is not usually appealable. Piltzer v. Independence, Federal Savings and Loan Association, 452 Pa. 402, 319 A. 2d 677 (1974). See also Thill Securities Corp. v. New York Stock Exchange, 469 F. 2d 14, 17 (7th Cir. 1972); Walsh v. Detroit, 412 F. 2d 226 (6th Cir. 1969); 9 J. Moore, Federal Practice 110.13[9], at 184-87 (2d Ed. 1973).” Id. at 96-97, 321 A. 2d at 908.
“Since the appellants’ claim is, in *77reality, an objection to the propriety of the class action, it can properly be resolved on appeal after final judgment below. To hold otherwise would encourage piecemeal determinations and consequent protraction of litigation. Piltzer, supra." Id. at 98, 321 A. 2d at 909.
Arizona has a statute similar to Ohio’s as to final judgments. Section 12-2101, Ariz. Rev. Stat. Additionally, Arizona R. Civ. P. 23(c)(1) is identical to Ohio’s in that it provides that such an order “may be altered or amended before the decision on the merits.” Arizona has also held that denial of a motion for decertification of a class is an interlocutory order and cannot be immediately appealed since it neither determines the action nor prevents a judgment. See Eaton v. Unified School Dist. No. 1 of Pima Cty. (App. 1979), 122 Ariz. 391, 595 P. 2d 183, affirmed (1979), 122 Ariz. 377, 595 P. 2d 169.
This court in Roemisch v. Mutual of Omaha Ins. Co. (1974), 39 Ohio St. 2d 119, 68 O.O. 2d 80, 314 N.E. 2d 386, held in the syllabus that: “An order of a trial court, pursuant to Civ. R. 23(C)(1), determining that an action may not be maintained as a class action is a final, appealable order, pursuant to R.C. 2505.02.” Other jurisdictions have similarly held that denial of class certification is final. See Darr v. Yellow Cab Co. (1967), 67 Cal. 2d 695, 63 Cal. Rptr. 724, 433 P. 2d 732 (the California Supreme Court concluded that a class action termination order was in legal effect a final judgment from which an appeal lies); Reader v. Magma-Superior Copper Co. (1972), 108 Ariz. 186, 494 P. 2d 708; McConnell v. Commonwealth of Pennsylvania, Dept. of Rev. (1983), 503 Pa. 322, 469 A. 2d 574; In re Estate of Freedman (1982), 307 Pa. Super. 413, 453 A. 2d 651. The reasoning that such orders are final is usually based upon the “death knell” theory which was rejected in Coopers & Lybrand v. Livesay (1978), 437 U.S. 463, 477, wherein the court stated that:
“Accordingly, we hold that the fact that an interlocutory order may induce a party to abandon his claim before final judgment is not sufficient reason for considering it a ‘final decision’ within the meaning of 1291 [, Title 28, U.S. Code].” Thus, this issue was settled in the federal courts. The Livesay decision also commented on the fact that under Fed. R. Civ. P. 23 (c)(1) an order involving class status may be “altered or amended before the decision on the merits.” Id. at 469, fn. 11. Even if a denial of certification of a class were immediately appealable on the basis that the denial prevented a judgment and was a death knell to the action, there is no basis for similar treatment of a grant of certification.
In the instant case the trial court certified the class of defendants. The defendants proceeded with the case and did not attempt to seek an immediate appeal. The majority now chooses to affirm the dismissal of defendants’ appeal, relying on the holding of Amato, supra.
If we were to accept that class certification is a special proceeding we still would not have a final appealable order since the trial court pursuant to Civ. R. 23(C)(1) may .change its order of certification at any time prior to a decision on the merits. Such an order is clearly interlocutory and cannot be considered a final appealable order under R.C. 2505.02. It is interesting to note that an Illinois Supreme Court rule succinctly accomplishes what this court is trying to do through case law.9 *78To allow this appeal now is for this court to engage in judicial legislation. R.C. 2505.02 was never intended to apply to actions such as the one before this court.
Based upon the foregoing, I would allow the appellant the right to raise the issue of class certification and would decide this issue upon the merits.
The Illinois Supreme Court has adopted Supreme Court Rule 308 which allows interlocutory appeals in certain circumstances.
*78“Interlocutory Appeals by Permission
“(a) Requests. When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that ah immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved. Such a statement may be made at the time of the entry of the order or thereafter on the court’s own motion or on motion of any party. The Appellate Court may thereupon in its discretion allow an appeal from the order.” Cf. Section 1292(b), Title 28, U.S. Code.