author: WETTICK JR., J,

text:
    Bank One Delaware N.A. v. Mitchell

      C.P. of Allegheny County,
    no. GD04-004813.

      William T. Molczan, for petitioner.

      Gregory P. Mitchell, pro se.
    January 27, 2005
   WETTICK JR., J,

The subject of this opinion and order of court is a petition of a credit card company to confirm an arbitration award entered against a respondent who was never ordered by any court to proceed to arbitration and who did not participate in the arbitration proceedings.

In its amended petition to confirm arbitration award and enter judgment thereon, Bank One alleges that on or before August 28, 2003, Bank One and respondent entered into a cardmember agreement which contained a provision to settle by arbitration any claims relating to the agreement. Attached as exhibit A to the petition is a writing that the petition describes as a true and correct copy of the pertinent part of the agreement.

Exhibit A is an undated and unsigned notice with the following heading: “IMPORTANT NOTICE FOR BANK ONE CREDIT CARD COMPANIES ABOUT CHANGES TO YOUR BANK ONE CARDMEMBER AGREEMENT.” The notice states that a provision is being added to the cardmember agreement providing for disputes between the cardholder and Bank One to be resolved by arbitration. The effective date, according to this notice, is March 1, 1998. The notice provides that disputes will be resolved by binding arbitration by the National Arbitration Forum under its Code of Procedure at the time the claim is filed. The notice also provides that the arbitration agreement shall be governed by the Federal Arbitration Act, 9U.S.C. §§1-16.

Bank One’s amended petition alleges that on or around August 29, 2003, Bank One referred this matter to the National Arbitration Forum because respondent had defaulted under the terms of the cardmember agreement. Subsequently, Bank One forwarded to respondent an arbitration claim and a notice of arbitration explaining respondent’s rights and options pursuant to the arbitration process. The claim and the notice, which are attached to Bank One’s amended petition as exhibit B1 and exhibit B2, are attached to this opinion as Attachment 1 and Attachment 2.

The arbitration claim, signed by counsel for Bank One, states that respondent is in breach of the agreement, owing to claimant the principal balance of $6,369.88 plus interest. The prayer for relief seeks an award for the principal amount, interest through the date of filing, additional prejudgment interest, attorney fees, costs of arbitration, and service expenses. The initial provision in the claim is a boldface type statement: “Respondents): This is an arbitration claim against you for money or other relief. You have 30 days to serve the claimant with a written response. If you do not serve the claimant and file with the National Arbitration Forum a written response, an award may be entered against you.”

The notice of arbitration is a form of the National Arbitration Forum which advises the respondent that an arbitration claim has been filed against him. It states that the respondent has 30 days to respond from receipt of service. If he fails to do so, an award may be entered against him that may be enforced in court as a civil judgment. The notice includes a website address and a telephone number from which the respondent can obtain the Code of Procedure. The notice describes two options: the respondent may submit a written response stating his reply and defenses to the claim together with supporting documents or the respondent may request a hearing. The notice also advises the respondent that he may seek the advice of an attorney.

Bank One’s amended petition alleges that after notice was properly given to the respondent, the matter proceeded before an arbitrator who made an award of $6,711.51. The award (amended petition, exhibit C), which is attached to this opinion as Attachment 3, included findings that on or before August 28, 2003, the parties entered into an agreement providing that this matter would be resolved through binding arbitration in accordance with the Forum’s Code of Procedure, the parties had the opportunity to present all evidence and information to the arbitrator, the arbitrator reviewed all evidence and information submitted in this case and that the information and evidence submitted supports the issuance of an award as stated.

Neither the award nor the amended petition to confirm arbitration award states that the respondent participated in any way in the arbitration proceedings.

It is my recollection that at oral argument I was advised that respondent had not participated. Thus, the arbitration award was entered pursuant to Rule 36 of the Forum’s Code of Procedure which governs arbitration proceedings in the absence of a party:

“Rule 36. Arbitration proceedings in absence of a party.

“(A) An arbitrator may issue an award or order when any party has failed to respond, appear, or proceed at a hearing, or otherwise defend as provided in this code.

“(B) If a party does not respond to a claim, an arbitrator will timely review the merits of the claim for purposes of issuing an award or order. The claimant need not submit an additional request for an award.

“(C) An arbitrator may require an affidavit, information or documents from parties who have appeared or conduct a hearing to receive evidence necessary to issue an award or order. Documents submitted in response to an arbitrator’s request shall be filed with the Forum, no later than 30 days after the date of the request.

“(D) Each party making an appearance shall be provided notices relating to a hearing.

“(E) No award or order shall be issued against a party solely because that party failed to respond, appear or defend.”

After the arbitration award was issued, Bank One filed in this court a petition to confirm arbitration award and enter judgment thereon. On May 6, 2004, the sheriff served the petition to confirm the arbitration award on respondent. The amended petition, which is the subject of this opinion, was mailed to respondent on July 27, 2004, and included a notice of the date on which it would be presented: August 6, 2004 at 2 p.m. Respondent did not appear on this date.

Bank One’s petition avers that the petition to confirm the arbitration award and to enter judgment is filed pursuant to 42 Pa.C.S. §7313. Section 7313 reads as follows:

“Section 7313. Confirmation of award by court

“On application of a party, the court shall confirm an award, unless within the time limits imposed by this sub-chapter, grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in section 7314 (relating to vacating award by court) or section 7315 (relating to modification or correction of award by court).”

Since respondent did not appear on the date of the presentation of the amended petition, my role is limited to determining whether, on the face of the record, petitioner (Bank One) is entitled to the relief which it seeks: The confirmation of the arbitration award and the entry of a judgment based on the award.

Since the amended petition for the entry of a judgment is based on an award that was not made by a court, a court may enter a judgment based on the award only if the record, including the writings attached to the amended petition, can support a finding that the arbitrator had jurisdiction over the respondent. The record does not support such a finding.

The determination that respondent agreed to submit Bank One’s claim to an arbitrator was made solely by the arbitrator in his arbitration award. Under settled Pennsylvania law, an arbitrator has no authority to decide questions of jurisdiction. See Shadduck v. Christopher J Kaclik Inc., 713 A.2d 635, 637 (Pa. Super. 1998) (“It is well-settled that the issue of whether a particular dispute falls within a contractual arbitration provision is a matter of law for the court to decide.”); Ross Development Co. v. Advanced Building Development Inc., 803 A.2d 194, 197 (Pa. Super. 2002) (“[T]he question of substantive arbitration is for the courts while procedural arbitration is left to the arbitrators.”); Smith v. Cumberland Group Limited, 455 Pa. Super. 276, 284, 687 A.2d 1167, 1171 (1997) (“the threshold question of whether a party agreed to arbitrate a dispute is a jurisdictional question that must be decided by a court”) (citations omitted); Northampton Area School District v. Skepton, 138 Pa. Commw. 574, 577-78, 588 A.2d 1020, 1022 (1991) (“an arbitrator does not have the power to determine his or her own jurisdiction”) (citation omitted); and Gaslin Inc. v. L.G.C. Exports Inc., 334 Pa. Super. 132, 139, 482 A.2d 1117, 1121 (1984) (an arbitrator’s “power has not been extended to the degree that he may determine his own jurisdiction”).

It is very possible that petitioner (Bank One) can establish that respondent is a party to a credit card agreement containing an arbitration clause and that petitioner’s claim comes within the scope of the arbitration provision. However, petitioner must do so in a court proceeding instituted pursuant to 42 Pa.C.S. §7304(a) before the cardholder is required to arbitrate the dispute.

There is no requirement in the law for a cardholder to participate in an arbitration proceeding in the absence of a court order finding that a credit card issuer is raising a claim governed by an arbitration clause. Since an arbitrator cannot require a respondent to litigate before the arbitrator the issue of the authority of the arbitrator to hear a claim filed by a party alleging that the claim is governed by an arbitration clause, a respondent cannot be penalized for his or her failure to participate in the arbitration proceeding that resulted in an ex parte award against this respondent. In other words, respondent was not required to arbitrate Bank One’s claim until Bank One established in a court that its claim is governed by a valid agreement to arbitrate. Thus, respondent is not bound by the ex parte proceeding even if a court subsequently determines that Bank One’s claim is governed by an arbitration clause.

Proceedings to compel arbitration are governed by 42 Pa.C.S. §7304(a):

“Section 7304. Court proceedings to compel or stay arbitration

“(a) Compelling arbitration. — On application to a court to compel arbitration made by a party showing an agreement described in section 7303 (relating to validity of agreement to arbitrate) and a showing that an opposing party refused to arbitrate, the court shall order the parties to proceed with arbitration. If the opposing party denies the existence of an agreement to arbitrate, the court shall proceed summarily to determine the issue so raised and shall order the parties to proceed with arbitration if it finds for the moving party. Otherwise, the application shall be denied.”

This statute permits only a court to order parties to proceed with arbitration upon a showing of an agreement to arbitrate. It does not allow an arbitrator to order a party to proceed to arbitration.

Section 7304(a), which provides for a party to file an application with the court to compel arbitration (and for the court to determine whether there is an agreement to arbitrate), and sections 7313/7342(b), which provide for a court to confirm an arbitration award, create a scheme of enforcement of an arbitration clause in which a party initially obtains a court order compelling arbitration and, subsequently, a court order confirming the arbitration award. See e.g., Zhaodong Jiang, Federal Arbitration Law and State Court Proceedings, 23 Loy. L.A. L. Rev. 473, 525 (1990). Thus, a party who bypasses section 7304(a) cannot utilize section 7313 or section 7342(b) to confirm an arbitration award entered in an arbitration proceeding in which the respondent did not participate.

What Bank One is attempting to create — by seeking to obtain a judgment pursuant to 42 Pa.C.S. §7313 against a party who did not participate in the arbitration proceedings — is another method for obtaining default judgments that does not provide the same safeguards as those provided by the Pennsylvania Rules of Civil Procedure governing default judgments and that would require the extensive use of judicial resources.

The arbitrator found proper service in accordance with Rule 6 of the Forum Code of Procedure where apparently the only proof of service is a Federal Express customer support trace showing that delivery to Gregory P. Mitchell at 25 Fordham Avenue, Pittsburgh, PA 15229, was made by delivery at 25 Fordham Avenue to (an unreadable first name) with a Federal Express notation of “Signed for by A. Mitchell.” Under the Pennsylvania Rules of Civil Procedure, service must be made by the sheriff by handing a copy to the defendant or to someone that the sheriff identifies as being an adult member of the family with whom defendant resides or, if no family member is found, an adult person in charge of the residence. Pa.R.C.P. 400 and 402.

Pa.R.C.P. 1018.1 requires every complaint to begin with a notice to defend which instructs the defendant to take the paper to the defendant’s lawyer at once and includes the name, address, and telephone number of an office that can provide information about hiring a lawyer or obtaining legal services at a reduced fee or no fee. Under Pa.R.C.P. 1037(b), a default judgment may be entered by the prothonotary only if the complaint contains anoticeto defend. UnderPa.R.C.P. 237.1(a) (2)(ii), a default judgment may not be entered without a 10-day notice mailed after the failure to file a responsive pleading within the time permitted by Pa.R.C.P. 126. These safeguards are not provided in arbitration proceedings.

The Pennsylvania Rules of Civil Procedure and the case law governing default judgments provide greater protection following the entry of the default judgment than the protection afforded the respondent against whom an ex parte arbitration award is entered. A party seeking to open or strike a default judgment has more grounds for doing so including the right to have the judgment opened by filing an answer setting forth a meritorious defense within 10 days of the filing of the default judgment. See Pa.R.C.P. 237.3.

The Pennsylvania Rules of Civil Procedure and the case law governing default judgments are designed to fairly balance the protections afforded a plaintiff and the protections afforded a defendant. Arbitration has never been viewed as a method for circumventing the protections against default judgments afforded defendants in consumer credit transactions. Attempts to use it in this fashion — if permitted by statute — would bring into play many of the constitutional issues raised in connection with the use of confession of judgment clauses in consumer transactions.

Also — and probably most important — Pennsylvania’s default judgment procedures are designed to minimize judicial involvement in the entry of judgments for failure of a defendant to file a responsive pleading. Under Rule 1037(b), responsibility is given to the prothono-tary to review the record to determine if the record supports the entry of the default judgment sought by the plaintiff who has filed a praecipe for the entry of a default judgment. Thus, it is an employee of the prothono-tary — and not a judge — who reviews the record to determine whether defendant has, in fact, failed to file a responsive pleading to the plaintiff’s complaint, whether the record shows that service was properly made pursuant to the Pennsylvania Rules of Civil Procedure, whether the record includes a certificate showing that an important notice was mailed after default and at least 10 days prior to the filing of the praecipe for the entry of a default judgment, and whether the allegations in the complaint support the entry of the judgment which the plaintiff seeks.

In 2004, approximately 8,500 default judgments were entered by the prothonotary in this court. For these 8,500 default judgments, the involvement of a judge was limited to an estimated 150 to 200 petitions to open or strike a default judgment.

If credit card issuers and other consumer lenders are permitted to utilize the procedure that Bank One is proposing rather than the default judgment procedures governed by the Pennsylvania Rules of Civil Procedure, a judge — rather than the prothonotary — would review the creditor’s request for the entry of a judgment. The review that a judge must conduct would be more extensive and more complicated than the review conducted by the prothonotary prior to the entry of a default judgment.

A judge would need to determine whether the record shows that the respondent was properly served with the arbitration claim (i.e., without service the arbitration award is a nullity). Where a plaintiff files a praecipe with the prothonotary for entry of a default judgment, the issue as to service is whether the record contains a proof of service mandated by the Pennsylvania Rules of Civil Procedure, and whether the proof of service establishes that service was made in accordance with the Pennsylvania Rules of Civil Procedure. Service of an arbitration claim will not have been made pursuant to the Pennsylvania Rules of Civil Procedure. Thus, judges would be required to determine, by reviewing the entire record, how service was made and whether this service complied with the due process clause of the United States Constitution (a far more complicated process than the application of the mechanical standards of the Pennsylvania Rules of Civil Procedure). In the present case, for example, a judge would need to determine whether the record showing a Federal Express delivery received by someone whom Federal Express identified as A. Mitchell provided constitutionally adequate notice of the arbitration proceedings to Gregory P. Mitchell.

Assuming that service was adequate, the due process clause requires that the notice of the arbitration proceeding served on a defendant give sufficient notice to the defendant of what is involved in the arbitration proceedings and the steps the defendant must take to defend the claim. Again, the measuring stick is not the Pennsylvania Rules of Civil Procedure but, instead, the due process clause.

Also, since the arbitration award is a nullity without an agreement to arbitrate, a judge would need to determine whether the record shows the existence of an agreement to arbitrate.

In addition, a judge would need to determine that the petition to confirm the arbitration award was properly served and that the judgment which the card issuer seeks is supported by the arbitration award.

Historically, arbitration has been viewed as an alternative method for resolving contested claims. It has never been viewed as a method for obtaining a judgment against a party who was never ordered to arbitrate and who did not participate in the arbitration proceedings. The courts have enforced arbitration agreements because the arbitration of a dispute that would otherwise be litigated in the courts conserves judicial resources. Judicial resources are not conserved by using arbitration proceedings— rather than the courts — to obtain default judgments.

Sections 42 Pa.C.S. 7313 and 7342(b) should be construed in a manner that is consistent with the use of arbitration to resolve contested disputes that would otherwise be litigated in the courts. Thus, these sections should not be construed to operate independently from 42 Pa.C.S. §7304.

In this opinion, I have considered only the Pennsylvania legislation governing arbitration because Bank One’s petition states that it is filed pursuant to 42 Pa.C.S. §7313 and does not refer to the Federal Arbitration Act. However, assuming that the Federal Arbitration Act places some restrictions on the manner in which state courts enforce Federal Arbitration Act arbitration awards, these restrictions would reach only those state procedures that materially interfere with the essential purposes of the Federal Arbitration Act. Jiang, Federal Arbitration Law in State Court Proceedings, 23 Loy. L.A. L. Rev., supra at 520, 532.

It does not appear that the Federal Arbitration Act was designed to provide for ex parte arbitration awards where the defendant was not ordered to arbitrate the claim. Section 4 of the Federal Arbitration Act, 9 U.S.C. §4, permits a party aggrieved by the failure of another to arbitrate under a written agreement for arbitration, to petition the court for an order directing arbitration. This legislation, unlike the Pennsylvania legislation, includes the right of the party opposing arbitration to demand a jury trial of the issue.

Cáse law governing the Federal Arbitration Act states that an important purpose of the Act is to relieve congestion of the courts. If the Federal Arbitration Act would be construed to recognize ex parte arbitration awards in favor of a party who did not obtain an order compelling arbitration, the vast majority of the ex parte awards would be entered in consumer transactions that do not meet the monetary limits for federal court jurisdiction. Congress would not have intended to require the state courts to replace a default judgment procedure that does not involve proceedings before a judge with a procedure to enter ex parte arbitration awards which requires extensive judicial involvement.

I recognize that credit card holders are seldom going to voluntarily participate in arbitration proceedings. I also recognize that it may not be feasible for a credit card company to file in almost every case a petition to compel arbitration pursuant to 42 Pa.C.S. §7304. However, this does not mean that the credit card company which does not file a petition to compel arbitration in every claim will be forced to litigate its contested claims in the Pennsylvania courts.

Under Pennsylvania case law, a party does not waive its right to compel arbitration by filing a complaint. Keystone Technology Group Inc. v. Kerr Group Inc., 824 A.2d 1223 (Pa. Super. 2003). Consequently, a credit card company may file in the Pennsylvania courts a complaint with allegations that its agreement with the defendant includes an arbitration clause and that it intends to obtain a court order compelling arbitration if the defendant denies the claim raised in the complaint. The complaint will be served under the Pennsylvania Rules of Civil Procedure governing service of a complaint.

If the defendant does not file a responsive pleading to the complaint, the cardholder may obtain a default judgment pursuant to Rule 1037. If the defendant files an answer admitting that there is an agreement to arbitrate the claim and denying the claim, the plaintiff may commence an arbitration proceeding and, if successful, file a petition to confirm the arbitration award pursuant to 42 Pa.C.S. §§7313 or 7342(b). If the defendant denies both the claim and that there is an agreement to arbitrate the claim, the cardholder may file a petition to compel arbitration pursuant to 42 Pa.C.S. §7304(a).

In summary, I am denying Bank One’s amended petition to confirm arbitration award and enter judgment thereon for two reasons:

First, in the absence of a court order compelling the respondent to proceed with arbitration, the arbitrator does not have any jurisdiction over a respondent who never participated in or otherwise acknowledged the arbitration proceeding.

Second, since 42 Pa.C.S. §§7304(a), 7313 and7342(b) are part of a statutory scheme for enforcing arbitration agreements, a court shall confirm an arbitration award under section 7313 or section 7342(b) only if the respondent either was ordered to proceed with arbitration pursuant to section 7304(a) or voluntarily participated in the arbitration proceeding.

For these reasons, I enter the following order of court:

ORDER

On January 27, 2005, it is hereby ordered that the amended petition of Bank One Delaware N.A., to confirm arbitration award and to enter judgment thereon is denied.

ATTACHMENT 1

Exhibit B1

IN THE NATIONAL ARBITRATION FORUM CLAIM

Bank One Delaware N.A.,

formerly known as First USA Bank N.A.,

successor in interest to FCC National Bank N.A., c/o

Mann Bracken LLC

229 Peachtree Street, NE

Suite 700, International Tower

Atlanta, GA 30303-1601

USA, CLAIMANT,

RE: Bank One Delaware N.A. v. Gregory P. Mitchell Forum File Number: FA0308000191166 Account No *

Gregory P. Mitchell Pittsburgh, PA 15229 USA, RESPONDENT(S)

RESPONDENT(S): THIS IS AN ARBITRATION CLAIM AGAINST YOU FOR MONEY OR OTHER RELIEF. YOU HAVE 30 DAYS TO SERVE THE CLAIMANT WITH A WRITTEN RESPONSE. IF YOU DO NOT SERVE THE CLAIMANT AND FILE WITH THE NATIONAL ARBITRATION FORUM A WRITTEN RESPONSE, AN AWARD MAY BE ENTERED AGAINST YOU.

COMES NOW, claimant, Bank One Delaware N.A., formerly known as First USA Bank N.A., successor in interest to FCC National Bank N.A. (claimant or Bank One), and states its claim against respondent and shows this honorable Forum the following:

(1) Respondent is in breach of the cardmember agreement, to which claimant succeeds as obligee following the merger of the original issuer, FCC National Bank with First USABank N.A. and the subsequent merger of First USA Bank N.A. and claimant. The material provisions of the agreement and amendments thereto are quoted below. Counsel for claimant will provide exemplar agreements and/or amendments via e-mail or regular mail upon request.

(2) Respondent’s breach arises from his/her failure to honor the payment terms of the agreement. Revolving credit was extended to respondent in reliance upon the terms of the agreement. The debt, which is the subject of the instant claim, arises from revolving credit extended to respondent in the form of credit card account number

(3) Respondent(s) continuing default under the terms of the agreement has resulted in a present principal debt on account due and owing to claimant in the amount of $6,369.88, as reflected in the attached account summary, plus interest accrued through the date of filing in the total amount of $216.13. Interest continues to accrue upon the principal balance due at the rate of 6.00 percent. The foregoing interest rate is the pre-judgment legal rate of interest authorized by the state law governing the agreement (as quoted immediately below), to wit, the law of the State of Delaware:

“GOVERNING LAW: THIS AGREEMENT AND YOUR ACCOUNT WILL BE GOVERNED BY THE LAW OF THE STATE OF DELAWARE AND, AS APPLICABLE, FEDERAL LAW.”

Submitted for the convenience of the tribunal is a true and correct copy of the relevant statute, 6 Del. C. §2301, appended hereto as exhibit “A”, [not published herein]

(4) This account was declared as a bad debt on March 31,2002, at which point it was 210 days delinquent. The date of the last payment received on the account was July 30,2001. Despite repeated attempts by claimant and claimant’s counsel and/or agents to resolve this claim short of resort to the remedy sought herein, respondent(s) has/have not paid the amounts due or otherwise made provision for an accord and satisfaction of the claim at bar.

(5) Claimant proceeds herein pursuant to the following provision of the agreement, as amended:

“Arbitration: Any claim, dispute or controversy (claim) by either you or us against the other, or against the employees, agents or assigns of the other, arising from or relating in any way to this agreement or your account, including claims regarding the applicability of this arbitration clause or the validity of the entire agreement, shall be resolved by binding arbitration by the National Arbitration Forum, under the Code of Procedure in effect at the time the claim is filed. Rules and forms of the National Arbitration Forum may be obtained and claims may be filed at any National Arbitration Forum office, www.arb-forum.com, or P.O. Box 50191, Minneapolis, Minnesota 55405, telephone 1-800-474-2371. Any arbitration hearing at which you appear will take place at a location within the federal judicial district that includes your billing address at the time the claim is filed. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9U.S.C. §§1-16. Judgment upon any arbitration award may be entered in any court having jurisdiction.

“This arbitration agreement applies to all claims now in existence or that may arise in the future except for claims by or against any unaffiliated third party to whom ownership of your account may be assigned after default (unless that party elects to arbitrate). Nothing in this agreement shall be construed to prevent any party’s use of (or advancement of any claims, defenses or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security or property interests for contractual debts now or hereafter owed by either party to the other under this agreement.

“IN THE ABSENCE OF THIS ARBITRATION AGREEMENT YOU AND WE MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT, AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS, BUT EXCEPT AS OTHERWISE PROVIDED ABOVE, ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION.”

(6) Claimant respectfully requests an award in its favor for the amounts reflected in paragraph 3 herein together with the costs, fees and expenses of collection described more fully at subparagraphs Athrough C of this paragraph. The foregoing elements of ancillary relief are provided for by the agreement (as quoted immediately below) and authorized by the laws of the State of Delaware.

“Default/Collection Costs: Your account will be in default and we may demand immediate payment of the entire amount you owe us without giving you prior notice if: (1) in any month we do not receive your minimum monthly payment by the payment due date; (2) you make purchases or obtain cash advances in excess of your credit line; (3) you fail to comply with this agreement; (4) there is a filing for your bankruptcy; (5) you die or become incapacitated; (6) we believe in good faith that the payment or performance of your obligations under this agreement is impaired for any other reason. As permitted by applicable law, you agree to pay all collection expenses actually incurred by us in the collection of amounts you owe under this agreement (including court costs and the fees of any collection agency to which we refer your account) and, in the event we refer your account after your default to an attorney who is not our regularly salaried employee, you agree to pay the reasonable fees of such attorney. We will not be obligated to honor any attempted use of your account if a default has occurred or we have determined to terminate your account or limit your account privileges (as described below).” (emphasis added)

Submitted for the convenience of the tribunal are true and correct copies of the relevant statutes, to wit, 10 Del. C. §3912, appended hereto as exhibit “B” and 5 Del. C. §951, appended hereto as exhibit “C”. [not published herein]

(A) Attorney’s fees;

(B) Costs of arbitration: (i) A filing fee of $35 already incurred by claimant; (ii) a commencement fee as may be incurred; (iii) any administrative fees as may be incurred; (iv) any other or further fees as may be incurred in the course of these proceedings;

(C) Expenses incurred by the claimant in serving the respondent with this claim.

Wherefore, claimant respectfully requests the issuance of an award in its favor as follows:

(a) In the amount of $6,369.88 for the principal amount of debt due and owing from respondent to claimant;

(b) In the amount of $216.13 for interest accrued on said principal amount through the date of this filing;

(c) For prejudgment interest at the legal rate of 6.00 percent from the date of this filing through the issuance of award;

(d) Attorney’s fees of $636.99;

(e) All costs of arbitration as may be incurred by claimant in the course of these proceedings;

(f) Service expenses as incurred in serving this claim upon respondent;

(g) Any other or further relief that this honorable Forum deems appropriate.

The undersigned asserts, under penalty of perjury, that the information contained in this claim and the supporting documents attached hereto are true and correct.

RESPONDENT(S) MUST SEND A WRITTEN RESPONSE TO THE NATIONAL ARBITRATION FORUM, WITH A COPY TO THE CLAIMANT, WITHIN 30 DAYS OR AN AWARD MAY BE ENTERED IN FAVOR OF THE CLAIMANT.

James D. Branton, Esq., for the claimant Claimant Contact:

Mann Bracken LLC

Attention: James D. Branton, Esq.

229 Peachtree Street, NE Suite 700, International Tower Atlanta, GA 30303-1601 1-800-817-3214 arbitration@mannbracken. com

ATTACHMENT 2

Exhibit 2

NOTICE OF ARBITRATION

Dear Respondent,

AN ARBITRATION CLAIM HAS BEEN FILED AGAINST YOU.

Enclosed and served upon you is the Initial Claim. You may obtain a copy of the Code of Procedure, without cost, from the claimant or from the Forum at WWW.ARBITRATION-FORUM.COM or 800/474-2371.

IF YOU DO NOT SERVE THE CLAIMANT AND FILE WITH THE FORUM A WRITTEN RESPONSE, AN AWARD MAYBE ENTERED AGAINST YOU. AN ARBITRATION AWARD MAY BE ENFORCED IN COURT AS A CIVIL JUDGMENT

YOU HAVE 30 DAYS TO RESPOND FROM RECEIPT OF SERVICE.

You have a number of options at this time. You may:

(1) Submit a written response to the claim, stating your reply and defenses to the claim, together with documents supporting your position. Your response must be served on the claimant and filed with the Forum. Read Forum Code of Procedure Rule 13. A counterclaim, cross-claim or third-party claim may also be served and filed, and accompanied by the fee as provided in the fee schedule. Forms for such response and claims may be obtained from the Forum. If you fail to respond in writing to the claim, an award may be entered against you and in favor of the claimant and you will lose your case.

(2) Demand a document hearing or a participatory hearing. You may request a hearing in your response or in a separate writing. Unless you have agreed otherwise, an in-person participatory hearing will be held in the Judicial District where you reside or do business. You may also request a hearing on-line or by telephone. Your written request for a hearing must be filed with the Forum. You must also serve a copy of your request on the claimant and any other parties. Read Forum Code of Procedure Rules 25 and 26.

(3) Have other options. You may seek the advice of an attorney or any person who may assist you regarding this arbitration. You should seek this advice promptly so that your response can be served and filed within the time required by the Code of Procedure. If you have any

questions or need help in responding, you may contact the Forum.

The Forum is an independent and impartial arbitration organization, which does not give legal advice or represent parties. THIS SUMMARY IS NOT A SUBSTITUTE FOR READING AND UNDERSTANDING THE CODE OF PROCEDURE WHICH GOVERNS THIS ARBITRATION.

National Arbitration Forum P.O. Box 50191

Minneapolis, MN USA 55405-0191 (651) 631-1105, (800) 474-2371 info@arb-forum. com ARBITRATION-FORUM.COM

ATTACHMENT 3

Exhibit C

NATIONAL ARBITRATION FORUM

Bank One Delaware N.A.

c/o Mann Bracken LLC

229 Peachtree Street, NE

Suite 700, International Tower

Atlanta, GA 30303-1601, CLAIMANT(s),

AWARD

RE: Bank One Delaware N.A. v. Gregory P. Mitchell

File Number: FA0308000191166

Claimant File Number: ****************

Gregory P. Mitchell

Pittsburgh, PA 15229, RESPONDENT(s).

The undersigned arbitrator in this case FINDS:

(1) That no known conflict of interest exists.

(2) That on or before August 28,2003, the parties entered into an agreement providing that this matter shall be resolved through binding arbitration in accordance with the Forum Code of Procedure.

(3) That the claimant has filed a claim with the Forum and served it on the respondent in accordance with Rule 6.

(4) That the matter has proceeded in accord with the applicable Forum Code of Procedure.

(5) The parties have had the opportunity to present all evidence and information to the arbitrator.

(6) That the arbitrator has reviewed all evidence.and information submitted in this case.

(7) That the information and evidence submitted supports the issuance of an award as stated.

Therefore, the arbitrator ISSUES:

An award in favor of the claimant, for a total amount of $6,711.51.

Entered in the State of Pennsylvania

Kathleen Daerr-Bannon, Esq.

Arbitrator

Date: 10/29/2003

ACKNOWLEDGEMENT AND CERTIFICATE OF SERVICE

This award was duly entered and the Forum hereby certifies that a copy of this award was sent by first class mail postage prepaid to the parties at the above referenced addresses on this date.

Honorable Harold Kalina Director of Arbitration 10/29/2003

      . This petition is almost identical to numerous other petitions that counsel representing credit card companies have either filed or have refrained from filing until resolution of the petition that is the subject of this opinion and order of court.

      . This notice added an arbitration clause to existing cardmember agreements, effective March 1, 1998. However, Bank One’s petition does not allege that its agreement with respondent, which was the subject of the arbitration proceedings, was entered into prior to March 1, 1998. It avers only that respondent and Bank One entered into a cardmember agreement on or before August 28, 2003.

      . Bank One attached to the amended petition an exhibit B3, as proof of service, a Federal Express customer support trace showing delivery at 25 Fordham Avenue on September 9, 2003, with a signature by a person whom Federal Express identified as A. Mitchell.

      . Rule 6 of the Forum’s Code of Procedure provides that, after being notified by the Forum that the claim has been accepted for filing, the claimant (Bank One) shall serve on the respondent a copy of the initial claim and the Forum’s notice of arbitration. Rule 7 provides that after the claimant files a proof of service, the Forum mails to respondent a second notice of arbitration which advises the respondent that he or she has 30 days from the date of service or 14 days from the date of this notice, whichever is later, to file with the Forum a written response.

      . The service of this petition by the sheriff upon the respondent satisfied the requirement of 42 Pa.C.S. §7317 which provides that notice of an initial application for an order of court which is governed by the Uniform Arbitration Act shall be served in the manner provided by law for the service of a writ of summons in a civil action.

      . While it does not matter for purposes of this opinion, I believe that Bank One seeks to confirm an arbitration award made pursuant to common-law arbitration. The applicable provision for confirming a common-law arbitration award is 42 Pa.C.S. §7342(b) which provides “[o]n application of a party made more than 30 days after an award is made by an arbitrator under section 7341 (relating to common-law arbitration) the court shall enter an order confirming the award and shall enter a judgment or decree in conformity with the order.”

      . Under settled Pennsylvania law, judicial inquiry is limited to determining whether a valid agreement to arbitration exists between the parties and if so, whether the dispute involved is within the scope of the arbitration provision. Highmark Inc. v. Hospital Service Association, 785 A.2d 93, 98 (Pa. Super. 2001). A matter shall proceed to arbitration if a court determines that a valid agreement to arbitrate exists between the parties and that the dispute involved is within the scope of the arbitration provision. Keystone Technology Group Inc. v. Kerr Group Inc., 824 A.2d 1223, 1227 (Pa. Super. 2003).

      . Section 7304(a) applies to both common-law and statutory arbitration. See section 7342(a).

      . For statutory arbitration — but not for common-law arbitration— a party, by participating in the arbitration proceeding, does not waive its right to vacate the arbitration award on the ground that there was no agreement to arbitrate provided that the party raised the issue at the arbitration hearing (i.e., the court does not defer to the arbitrator). Compare 42 Pa.C.S. §7314(a)(l)(v) with section 7341.

      . This is consistent with the well-established principle of statutory construction that statutes or parts of statutes that relate to the same class of things are to be construed together, if possible. Casiano v. Casiano, 815 A.2d 638, 642 (Pa. Super. 2002); 1 Pa.C.S. §1932.

      . Code of Procedure Rule 6.B.2 provides that service of the initial claim shall be effective if done by “Delivery by a private service with the delivery receipt signed by a person who received the document.”

      , For example, the confession of judgment procedures ofthe 1970s in consumer transactions were found to unconstitutionally shift the burden to the defendant to challenge the entry of the confessed judgment. In the same way, the burden would be shifted to the defendant if a judgment can be entered against a respondent who did not participate in the arbitration proceedings unless the respondent can show that he or she never entered into an agreement containing an arbitration clause. The only differences are that a confessed judgment could not be entered without a writing signed by the defendant containing a confession of judgment clause and a confessed judgment would be opened if the defendant could produce evidence which in a jury trial would require the issues to be submitted to a jury.

      . In many instances, the petitions were filed within 10 days of the entry of the default judgment so the only issue before the court (assuming the petition to open was contested) was whether the proposed answer stated a meritorious defense. See Rule 237.3(b).

      . The arbitration clause upon which Bank One relies states that arbitration under this clause will be governed by the Federal Arbitration Act. However, the Federal Arbitration Act does not establish an independent basis for federal jurisdiction (see Southland Corp. v. Keating, 104 S.Ct. 852, 861 n.9 (1984); Harry Hoffman Printing Inc. v. Graphic Comm. Int. Union, 912 F.2d 608, 611 (2d Cir. 1990)), so in this transaction — and in most consumer credit transactions — a credit card company must look to the state courts to confirm its arbitration awards.

      . The pleading will establish that the arbitrator had jurisdiction to hear the claim.

      . The Civil Procedural Rules Committee ofthe Pennsylvania Supreme Court is recommending that New Rules of Civil Procedure 1326 et seq. be promulgated to govern proceedings to compel arbitration and to confirm arbitration awards in consumer credit transactions. The recommendation was published for comment on the home page of the administrative office of the Pennsylvania courts on January 20,2005. This proposal, which governs only consumer credit transactions, creates a procedure similar to the procedure described in this portion of this opinion.


source: Caselaw Access Project

author: LESKINEN, J,

license: Public Domain

text:
    DeWeese v. Calkins Media Inc.

      C.P. of Fayette County,
    no. 1209 of 2002.

      Geoffrey R. Johnson, for plaintiff.

      Charles Kelly, for defendants.
    C. Clark Hodgson Jr. and Jonathan F Bloom, forln-tervenor.
    February 16,2005
   LESKINEN, J,

Before this court is the motion to compel discovery and/or for sanctions filed by defendants on May 19, 2004. An evidentiary hearing was held on August 20, 2004, and post-hearing submissions were received by the court through October 19, 2004.

At issue is the “speech and debate clause” privilege as set forth in the Pennsylvania Constitution as it applies to the plaintiff’s use of (and disclosure of his use of) the House Minority Caucus Special Leadership Account, a bank account containing public funds. Plaintiff’s original complaint, and his first amended complaint, both contained defamation counts directed at the defendants’ use of the term “slush fund” as it relates to that bank account, but those counts were withdrawn, and are not contained in the plaintiff’s second amended complaint filed on September 10, 2004.

The remaining pertinent allegations of the second amended complaint revolve around the allegation that plaintiff gave his word at a videotaped editorial board meeting in October 2000 that he would fully disclose all of the expenditures from that account, and subsequently “broke his word” on or before June 3,2001, by failing to make such disclosures. It is clear from reviewing the transcript of the meeting attached to the complaint that plaintiff did not promise full disclosure of all expenditures from the account at that time, although he stated that he had “a strong hunch” that he would release details of his own expenditures. (There is a letter from plaintiff to defendants attached to the complaint that appears to detail $10,354.90 of plaintiff’s own expenditures from January 2001 through May 2001.)

Defendants claim that plaintiff did make a promise of full disclosure at a subsequent meeting, in a subsequent phone call, and/or in subsequent correspondence. This appears to be contradicted by the June 5, 2001 publication that, according to the complaint, stated:

“In an appearance before the newspaper’s editorial board last fall, DeWeese promised to release the details of his use of the leadership account.”

Despite repeated formal and informal requests from this court, counsel for the defendants has refused to provide details or substantiation concerning such other alleged meetings, phone calls, or correspondence. Despite his own refusal to provide this pertinent information, counsel for the defendants asserts that he will be unable to defend the case if he is not given details of the expenditures made from the “Special leadership account.” (This is ironic, given that the alleged failure to make such disclosure is the basis of the alleged defamatory statements.) Specifically, however, counsel asserts that there are allegations remaining in the second amended complaint that can only be defended by showing details of the expenditures from the account.

At the hearing, counsel for the Pennsylvania Legislature intervened, and, independently of the plaintiff, objected to the disclosure of detailed expenditures from the special leadership accounts. A copy of House Rule 14 was received into evidence.

It is clear that plaintiff does not personally have the authority, consistent with House Rule 14, to fully disclose all of the expenditures made from the account. While Rule 14 is not a source of privilege separate from the constitutional “speech and debate clause” privilege, the rule establishes that the special leadership accounts are viewed by the entire legislature as being legitimately part of the legislative process. Under the “speech and debate clause,” this court cannot require the plaintiff to disclose anything legitimately surrounding the legislative process. All this court can do is sanction the plaintiff by dismissing any portion of his claims that the defendants cannot fairly defend without the information sought.

It is also clear that the plaintiff has attempted to avoid this aspect of the dispute by voluntarily withdrawing such claims. The remaining question, therefore, is simply whether or not the plaintiff was thorough enough in doing so. Counsel for the defendant specifically asserted that there were claims plaintiff overlooked. As a result, this court took the time to painstakingly go through all 93 paragraphs set forth in the second amended complaint, and has found that plaintiff was thorough enough. There are no claims or allegations remaining that would, in fairness, require any disclosure of the expenditures made from the special leadership account in order to defend. The issue is simply whether or not the plaintiff “broke his word,” and the expenditures actually made are entirely irrelevant.

The defendants are entitled to discover any fact within the possession and control of the plaintiff, “not privileged, which is relevant to the subject matter involved in the pending action,” or that is “reasonably calculated to lead to the discovery of admissible evidence.” Pa. R.C.P. 4003.1. At this point, defendants have not shown that the evidence they are seeking to obtain by way of their motion falls within that rule.

The motion has already been successful for the defendants, because it did result in plaintiff voluntarily withdrawing all claims that the use of the phrase “slush fund” was defamatory. However, given that withdrawal, this court can grant no further relief.

ORDER

And now, February 16, 2005, in accordance with the foregoing opinion, this court hereby denies defendants’ motion to compel discovery and/or for sanctions which was filed on May 19, 2004.


author: GRIM, P.J.,

text:
    Pouleson v. Pouleson
    C.P. of Berks County,
    no. 02-1395.

      Eugene C. LaManna, for plaintiff

      Eric C. Diggan, for defendant.
    February 14, 2005
   GRIM, P.J.,

This case is before the court on plaintiff’s petition to open and/or strike divorce decree and defendant’s response and motion for sanctions. The following are the pertinent facts.

The parties were married for approximately 12 years and have two children. Plaintiff, Mary Elizabeth Poule-son (Wife), vacated the marital residence upon the parties’ separation in October 2001. Shortly after their separation, both parties consulted attorneys and attempted to reach an agreement to address the marital issues. Although several drafts of agreements were made, none were executed.

In the fall of2003 the parties filed for joint bankruptcy ■ in the Eastern District of Pennsylvania. Each party provided the attorney for the bankruptcy with the marital assets and debts in his or her possession. Defendant, Christoper R. Pouleson (Husband), listed, inter alia, a defined benefit plan and a 401 (k) plan from his employer.

In January 2004, the parties discussed the execution of a postnuptial agreement. Husband offered what he considered was a fair proposal. Wife accepted the proposal. He told her that she could save money by firing her attorney. Consequently, Wife terminated her attorney’s services. She then signed the agreement drafted by Husband’s attorney.

Wife contends that she signed the agreement because Husband intimidated her. She was afraid that if she did not acquiesce to Husband’s proposals he would make it difficult for her to see the children. The parties were divorced on February 6,2004, and the divorce decree was incorporated into the agreement.

Pursuant to the agreement Wife received 50 percent of Husband’s 401 (k) plan. Wife asserts that until recently she did not know that Husband had a defined benefit plan. Husband maintains that, although he gavie the information about his two retirement plans to the bankruptcy attorney, he assumed that they were one and the same.

Wife now wants a share of Husband’s defined benefit plan. She requests the court to open the divorce decree to address the issue of Husband’s defined benefit plan.

23 Pa.C.S. §3332 governs the opening or vacating of a divorce decree:

“Section 3332 Opening or vacating decrees

“A motion to open a decree of divorce or annulment may be made only within the period limited by 42 Pa.C.S. §5505 (relating to modification of orders) and not thereafter. The motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity. A motion to vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or a fatal defect apparent upon the face of the record must be made within five years after entry of the final decree. Intrinsic fraud relates to a matter adjudicated by the judgment, including perjury and false testimony, whereas extrinsic fraud relates to matters collateral to the judgment which have the consequence of precluding a fair hearing or presentation of one side of the case.”

Since Wife is alleging extrinsic fraud, the divorce decree may be opened because it is within five years after the entry of the decree.

In order to void a contract due to a fraudulent misrepresentation, the party alleging fraud must prove by clear and convincing evidence:

(1) a representation;

(2) which is material to the transaction at hand;

(3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false;

(4) with the intent of misleading another into relying on it;

(5) justifiable reliance on the misrepresentation; and

(6) resulting injury proximately caused by reliance.

Whether reliance on an alleged misrepresentation is justified depends on whether the recipient knew or should have known that the information supplied was false, for purposes of determining whether the agreement can be voided based on a fraudulent misrepresentation. Where the means of obtaining the information in question were not equal, the representations of the person believed to possess superior information may be relied upon. Porreco v. Porreco, 571 Pa. 61, 811 A.2d 566 (2002).

In the case sub judice, there was a false representation made that was material to the entry of the agreement, i.e., that Husband had only a 401 (k) plan through his employer. It is unclear whether Husband provided the information about the defined benefit plan to his divorce attorney. Wife was certainly justified in relying on the misrepresentation since the information was only in Husband’s possession. Wife did not have an attorney at the time of the execution of the agreement and there is no indication that a defined benefit plan was discussed in the prior drafts of agreements by the attorneys. For purposes of marital agreements, full disclosure of the parties’ financial resources is a mandatory requirement. Stoner v. Stoner, 572 Pa. 665, 819 A.2d 529 (2003). As a result of relying on Husband’s misrepresentation, Wife was injured by not receiving a share of a marital asset. For the above reasons, the court finds that Wife is entitled to open the decree to divide equitably the defined benefit plan.

Assuming agruendo that Wife did not prove by a preponderance of the evidence that Husband intentionally misled her into relying on his representation, the court would still find that the decree should be opened.

The penultimate paragraph in the recitals clause of the agreement reads as follows:

“By signing this agreement both parties hereby acknowledge that they agree and understand that they have been advised that they have a right to an independent appraisal of all marital assets, copies of all bank statements and or other financial statements and that the misstatement of the value of any asset or the concealment of any assets may effect this agreement and this agreement may be subject to reopening by either party as a result of the failure of either party to disclose the true value of the marital assets in accordance with the decision of the Superior Court in the case of Mormello v. Mormello, 452 Pa. Super. 590, 682 A.2d 824 (1996).”

A basic tenet of contract law is that when the language of a contract is clear and unambiguous its meaning must be determined by an examination of the content of the agreement itself. The court must construe the agreement only as written and may not modify the plain meaning under the guise of interpretation. Little v. Little, 441 Pa. Super. 185, 657 A.2d 12 (1995).

The plain meaning of the agreement is that the misstatement of the value of any asset or the concealment of any assets may impact the agreement. For whatever the reason, Husband’s defined pension plan was concealed from Wife. This is a major asset of the marriage and impacts on Wife’s rights. In Mormello, the Superior Court held that a postnuptial property settlement agreement was invalid because it did not contain a full and fair disclosure of the value of the marital estate. In that case, the wife had no knowledge as to the husband’s monthly pension payments or his gross salary, the agreement failed to state the value of the husband’s pension and the wife’s disability payments, and the valuation of the amount remaining on the mortgage on the house did not accurately reflect the husband’s monetary obligation to the wife. Whether adequate disclosure has been made will depend on the facts and circumstances of individual cases.

The court finds that, in the instant case, adequate disclosure was not made to Wife. In accordance with the foregoing opinion, the court enters the following order.

ORDER

And now, after hearing argument and consideration of the briefs, the court opens the divorce decree dated February 6, 2004, and amends the postnuptial agreement dated January 25, 2004, as follows:

(1) Defendant, Christopher R. Pouleson (Husband), shall pay to plaintiff, Mary Elizabeth Pouleson (Wife), the sum of $3,500 payable as follows:

(a) $1,000 within 30 days of the receipt of this order.

(b) The balance of $2,500 to be payable at the rate of $500 per month.

(2) Wife shall receive an amount equal to 60 percent of the present value of Husband’s monthly payments from Husband’s State Farm Insurance Companies defined benefit plan. The money shall be distributed by QDRO to Wife. Wife shall prepare the QDRO and the parties shall cooperate in the execution and filing of the QDRO.

(3) The parties shall share equally the costs associated with the drafting of the QDRO and the payment of all taxes, penalties, and interest. Husband shall pay his share of the costs within 30 days from the completion of the QDRO.

(4) Interest on any unpaid balances owed by Husband shall accrue at 8 percent per annum from April 1, 2005, until paid in full.

(5) Both parties shall take all actions necessary to accomplish this transfer without adverse tax effect or realization of income at the time of the transfer.

(6) The balance of Husband’s plan shall be and remain the sole and exclusive property of Husband.

(7) All other provisions of the postnuptial agreement shall remain in full force and effect.

(8) Defendant’s motion for sanctions is denied.


author: PLATT, RJ,

text:
    Commonwealth v. Almodovar

      C.P. of Lehigh County,
    no. 3406 of 2004.

      Lisa R. Cipoletti, senior deputy district attorney, for Commonwealth.

      Richard A. Webster, assistant public defender, for defendant.
    January 25, 2005
   PLATT, RJ,

Presently before the court is the defendant’s omnibus pretrial motion consisting of a motion to suppress. For the reasons stated below, the defendant’s motion must be granted.

I. SUMMARY OF FACTS

On August 27, 2003, at approximately 11:21 p.m., Officer Timothy Yarush of the Emmaus Police Department was on patrol in a marked police cruiser. Officer Yarush was driving at the time, following behind a black Cadillac, from State Avenue to Main Street in Emmaus. The defendant, Juan Almodovar, was the driver of the Cadillac. Officer Yarush followed the Cadillac for approximately 5 or 6 blocks (1/2 to 3/4 of a mile), during which time he observed the Cadillac violate the lane markings; the Cadillac was observed to have its left wheels cross the double yellow (center) line of the roadway twice, and to ride with its right wheels on (but not beyond) the white fog line (the right-hand boundary of the lane) several times. Officer Yarush decided to conduct a traffic stop and cite the driver of the Cadillac for careless driving. He followed the Cadillac until he felt they were in a safe location, and then conducted the traffic stop.

When Officer Yarush approached the Cadillac, he smelled alcohol and observed other indications, such as bloodshot eyes and Mr. Almodovar’s hands shaking, that suggested Mr. Almodovar might have been driving under the influence of alcohol. Officer Yarush conducted field sobriety tests, which Mr. Almodovar failed, and conducted a PBT, which gave a blood alcohol reading of 0.06 percent. A records check showed that Mr. Almodo-var’s driving privileges were suspended at the time. Officer Yarush decided that, although he did not feel he had strong enough evidence to charge Mr. Almodovar for DUI, he also could not allow Mr. Almodovar to continue driving. Officer Yarush gave Mr. Almodovar the opportunity to telephone someone to come get the Cadillac, but Mr. Almodovar was unable to get anyone to do so. Officer Yarush then decided to impound the Cadillac, rather than leave it by the roadside. In accord with department policy, Officer Yarush conducted an inventory of the car’s contents, particularly looking for valuables. During this inventory he found a rock of crack cocaine in a plastic bag in the ashtray. Mr. Almodovar was charged with possession of a controlled substance.

A hearing on defendant’s omnibus pretrial motion was held January 3,2005. Defendant’s and Commonwealth’s briefs on the issues were received January 12 and 19, respectively.

II. SUPPRESSION

The defendant alleges in his omnibus pretrial motion that there was no probable cause for this vehicle stop. He further requests that the cocaine seized as a result of the subsequent inventory search be suppressed.

Section 6308(b) of the Vehicle Code, 75 Pa.C.S. §6308(b), provides:

“Whenever a police officer . . . has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.”

In Commonwealth v. Battaglia, 802 A.2d 652, 655 (Pa. Super. 2002), the court had occasion to review the precise meaning of this section.

“The legislature has vested police officers with authority to stop a vehicle when they have ‘articulable and reasonable rounds to suspect a violation’ of the Vehicle Code. 75 Pa.C.S. §6308(b).

“If the alleged basis of a vehicular stop is to permit a determination whether there has been compliance with the Motor Vehicle Code of this Commonwealth, it is encumbent [sic] upon the officer to articulate specific facts possessed by him, at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in violation of some provision of the Code.

“Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113, 1116 (1995) (citations omitted) (emphasis in original). While at first glance these two phrases — ‘articulable and reasonable grounds’ and ‘probable cause’ — might seem to express different standards, they, in fact, do not. In Whitmyer, the Supreme Court addressed this mistaken notion:

“ . . . when we balance the underlying interests of the individual and the government, the two standards amount to nothing more than a distinction without a difference.”

I note that the controlling cases on the subject are all heavily fact-dependant rulings; see inter alia, Battaglia, supra; Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 983 (2001); Commonwealth v. Baumgardner, 767 A.2d 1065 (Pa. Super.2001); Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 113 (1995); Commonwealth v. Lindblom, 854 A.2d 604 (Pa. Super. 2004); Commonwealth v. Mickley, 846 A.2d 686 (Pa. Super. 2004); Commonwealth v. Garcia, 859 A.2d 820 (Pa. Super. 2004). Indeed, recognizing the confusion the issue engenders, the Superior Court has attempted to clarify a rule as best they can: in Garcia, they said

“[D]eciding a matter under the Gleason standard is not an easy task. But a close reading of the Gleason rationale, combined with careful attention to the facts of that case, lead us to conclude that where a vehicle is driven outside the lane oftraffic for just a momentary period of time and in a minor manner, a traffic stop is unwarranted. Thus, appellant Gleason’s crossing of the berm line on two occasions for a second or two were [sic] inadequate to support a traffic stop, while appellant Lindblom’s repeated weaving within his lane, coupled with his driving over the center double lines and the berm line four or five times, provided probable cause to support a lawful traffic stop.” Id. at 823. (footnote omitted)

So the task now before the court is to determine whether defendant’s driving exceeded the “momentary and minor” standard of Gleason. I must also follow the Superior Court’s reasoning in the recent case of Commonwealth v. Klopp, 863 A.2d 1211 (Pa. Super. 2004).

“In granting suppression of evidence seized, the suppression court ruled that erratic driving is not a per se violation of the Vehicle Code so as to justify a traffic stop, and appellee’s driving did not pose a hazard to other motorists.

“[T]he defendant posed no safety hazard when her vehicle crossed the double yellow lines on the sole occasion when there was oncoming traffic. There was no impact. The oncoming driver moved an unspecified distance within his or her lane but there is no evidence that they left the lane. The driver took no drastic evasive action in response to the defendant’s crossing of the center lines. No other evidence of oncoming traffic was presented to the court. Therefore, at the time of the stop, Trooper Dziedzic lacked specific facts, which would have provided probable cause to believe that the defendant was in violation of section 3309(1) [Driving on roadways laned for traffic].” Klopp, at 1213. (internal citations omitted)

The Commonwealth contends that the car’s left wheels crossing the double yellow line twice in a five to six block distance, and his right wheels riding on the white fog line, were sufficient probable cause to stop the Cadillac and cite defendant for careless driving. The standard is whether the defendant’s driving exhibited a careless disregard for the safety of persons or property.

The Cadillac’s left wheels, and only the left wheels, were observed to cross the double yellow line; there is no testimony suggesting that the Cadillac crossed over the line completely or mostly, and would have been in danger of a head-on collision with oncoming traffic. The Cadillac’s right wheels rode on, but did not cross over, the white line which marked the right boundary of the lane. There is no testimony that any traffic, person, or property was endangered by defendant’s driving. Officer Yarush did not conduct a traffic stop as soon as he observed the Cadillac violate the lane markings, but rather waited until they reached what he considered a safe location to do so.

I also note that, viewing the facts, they are more similar to those cases which have been determined to not have had probable cause to effect a traffic stop. The Cadillac did not cross entirely into the oncoming lane of traffic; only the left wheels crossed the double yellow line. The left wheels crossed the double yellow line only twice briefly. The Cadillac never interfered with oncoming traffic. The right wheels never crossed beyond the right white line lane boundary. And (as Baumgardner and Battaglia state) a vehicle weaving within its own lane does not justify a stop.

Using Garcia’s “momentary and minor” standard, I find that there did not exist probable cause to stop defendant’s vehicle. As such, the defendant’s motion, seeking to suppress the evidence obtained from the inventory search of his vehicle, viz., the cocaine, must be granted.

ORDER

And now, January 25, 2005, after a hearing on the defendant’s omnibus pretrial motion, and for the reasons set forth in the accompanying opinion, it is hereby ordered that the defendant’s omnibus pretrial motion be and is granted. The evidence seized, the cocaine, is suppressed.

      . The walk-and-turn, the one-leg stand, and the finger-to-nose tests.

      . This section was amended effective February 1,2004. Since the incident in question took place prior to the amendment of the statute, the prior version of the statute applies to this case.


author: MINORA, J.,

text:
    Currie v. Phillips

      C.P. of Lackawanna County,
    no. 03-CV-378.

      Richard M. Jurewicz, for plaintiff.

      Richard G. Fine and Jeffrey E. Havran, for defendant Phillips.

      Howard A. Rothenherg, for defendant Lyons, individually and t/d/b/a Mulberry Street Inn aka Oscar’s.

      James Doherty, for additional defendant Pippet.

      Timothy E. Foley and Daniel Cummins, for additional defendant Potts.

      Ben Nicolosi, for additional defendant Raymond.

      Joseph McNulty Jr., for additional defendant Every.

      Patrick Gibbons, for additional defendant Faherty.

      Carl J. Guagliardo, for additional defendant Barnes.

      Gerard J. Cipriani and Eugene F. Hickey II, for additional defendant Pearce.

      Thomas J. Kelley, for additional defendant Clearkin.

      James J. Conaboy, for additional defendant Poli.

      James C. Haggerty and James D. Celia, for additional defendant Constable.
    January 18, 2005
   MINORA, J.,

INTRODUCTION

Presently before the court is a motion for judgment on the pleadings pursuant to Pa.R.C.P. 1034, brought by additional defendant, Ryan Potts. The plaintiff and original defendant, David Phillips, have filed timely responses together with their briefs in opposition to said motion to which the additional defendant, Ryan Potts, filed a reply brief in support of his motion for judgment on the pleadings. The parties have presented their respective arguments to the court on September 29,2004. We now consider this matter ripe for disposition. The allegations as set forth in the pleadings are as follows:

STATEMENT OF THE CASE

The within action was commenced by the plaintiff, J. Craig Currie, administrator ad prosequendum of the estate of Robert Christopher Skaf, on January 23, 2003. Plaintiff’s complaint alleges that Robert Christopher Skaf died April 28,2002 after attending a party at 415 Taylor Avenue, Scranton, Pennsylvania, where he had consumed alcoholic beverages. The original complaint names David Phillips and Robert R. Lyons, with his business entity, the Mulberry Street Inn, as defendants in this matter. The original defendant, David Phillips, owned the apartment building at 415 Taylor Avenue, Scranton, Pennsylvania and leased said premises to a number of the additional defendants, including Ryan Potts, Timothy Pippett, Kevin Clearkin, Brian Shields, Matthew Barnes, Christopher Poli and Christopher Constable. The complaint further alleges that on the night in question, after attending the party at 415 Taylor Avenue, Skaf, the deceased, went to a bar owned and operated by the defendant, Lyons, known as “Oscar’s,” where he consumed additional alcoholic beverages. At the time of Skaf’s death, he was 20 years of age and, therefore, a minor for alcohol consumption purposes within the Commonwealth of Pennsylvania.

Skaf’s estate commenced the within action against Phillips as the owner of 415 Taylor Avenue, Scranton, Pennsylvania, where Skaf was found dead on April 28, 2002. Apparently, Skaf had gone to those premises to stay for the night and at some time during the early morning hours of April 28, 2002 he attempted to walk up a flight of stairs in which there were no handrails or railings and apparently fell causing fatal injuries. Skaf’s estate likewise filed suit against Lyons, the owner of Oscar’s Bar, where Skaf had last consumed alcoholic beverages on April 27 and April 28, 2002.

After service of the initial complaint, the original defendant, David Phillips, filed a writ of summons joining numerous additional defendants including the moving defendant, Ryan Potts. The joinder complaint was ultimately filed by Phillips on September 29,2003, presenting claims against the additional defendants, including Potts, for negligence and social host liability. Two additional defendants, Jared Every and James Pearce filed preliminary objections to the joinder complaint which were resolved by memorandum and order of this court dated July 22, 2004.

The Phillips’ joinder complaint avers that Potts was a tenant of 415 Taylor Avenue, Scranton, and on April 27, 2002, he collectively sponsored the “Second Annual Beer Pong Tournament” with the other tenants of 415 Taylor Avenue which was held upon said premises. Additionally, Potts had assisted in organizing the event as well as advertising the tournament together with the other additional defendants. It is also noted that contestants and attendees of the party were required to pay $5 to gain entrance to the event. Throughout the evening, the additional defendants provided nine kegs of beer to all party participants, including those under the age of 21.

The joinder complaint avers that Potts, among others, was charged with and had pled guilty to violations of 18 Pa.C.S. §6310.1(a) as well as 47 Pa.C.S §4-492 (2). In the joinder complaint as well as the answer and brief in opposition to Potts’ motion for judgment on the pleadings of original defendant, David Phillips, conspicuously failed to state that those guilty pleas were ultimately withdrawn or that the Court of Common Pleas of Lackawanna County, per the Honorable Terrence Nealon, permitted the withdrawal of the pleas and that Potts was ultimately accepted into Lackawanna County Accelerated Rehabilitative Disposition (ARD) Program.

Phillips’ joinder complaint includes two causes of action against Potts, one sounding in negligence (Count I) and one sounding in social host liability (Count II). That joinder complaint alleges that the additional defendants are solely liable and/or jointly and severally liable to the plaintiff and/or over to original defendant, David Phillips, for indemnity and/or contribution. On May 14, 2004, additional defendant Potts filed a motion for judgment on the pleadings regarding both the negligence count and the social host liability count. The premise of Potts’ motion is that the inapplicability of the social host doctrine concerning a minor’s incompetence in handling alcohol acts as a bar shielding a minor from any theory of liability regarding the service of alcohol. We will further examine this matter in detail below.

DISCUSSION

Judgment on the Pleadings

As noted above, the parties have presented their arguments to the court therefore rendering this matter ripe for disposition. As this court has done previously in Discover Bank v. Palma, 03 CIV 2748, C.C.P. Lacka. Cty. (Judge Minora December 1, 2004), we will now outline the standard of review for a motion for judgment on the pleadings.

Motions for judgment on the pleadings are governed by Pa.R.C.P. 1034 which states in pertinent part:

“(a) After the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings ...

“(b) The court shall enter such judgment or order as shall be proper on the pleadings.”

We must remember that judgment on the pleadings is only proper where the pleadings establish that there are no material facts in dispute and the movant is clearly entitled to judgment as a matter of law. Teamann v. Zafris, 811 A.2d 52 (Pa. Commw. 2002), appeal denied, 574 Pa. 755, 830 A.2d 976 (2003), appeal denied, 574 Pa. 761, 831 A.2d 600 (2003). Like all summary judgments entered without trial, judgment on the pleadings may be entered only in clear cases free from doubt where there are no issues of material fact, and only where it is so clear that trial would clearly be a fruitless exercise. Otterson v. Jones, 456 Pa. Super. 388, 690 A.2d 1166 (1997), re-argument denied, appeal granted, 550 Pa. 707, 705 A.2d 1310 (1997), appeal dismissed as improvidently granted, 553 Pa. 421, 719 A.2d 309 (1998). It is the uncertainty of factual questions that makes it inappropriate to grant judgment on the pleadings. Greer v. U.S. Steel Corp., 475 Pa. 448, 380 A.2d 1221 (1977). The court in its determination of whether there is a dispute upon the facts “must confine its consideration to the pleadings and relevant documents.” AIU Insurance Co. v. Barxha, 2004 WL 2439234, 1 (Pa.Com.Pl.) citing Cole v. Lawrence, 701 A.2d 987, 988 (Pa. Super. 1997). Additionally, “neither party may be deemed to have admitted conclusions of law.” AIU Insurance Co., supra at 1; see also, Mellon Bank N.A. v. National Union Fire Insurance Co. of Pittsburgh, 768 A.2d 865, 868 (Pa. Super. 2001).

Presently, the additional defendant, Potts, has moved that this court enter judgment on. the pleadings in his favor. While the plaintiff, estate of Skaf, and original defendant/third-party plaintiff, David Phillips, request that this court deny the defendant’s motion because the pleadings are not yet closed.

The arguments presented by the opposing parties are compounded as follows. The plaintiff asserts that the pleadings are not yet closed because at the time the motion for judgment on the pleadings was filed, preliminary objections filed by other additional defendants were pending before the court. The plaintiff contends that the original defendant, Phillips, will be amending his join-der complaint to conform to the order this court entered on the preliminary objections. Moreover, the plaintiff maintains that it is yet to file its complaint against the additional defendants under a separate docket number indicating that judgment on the pleadings would be premature. Both the original defendant and plaintiff contend that because the plaintiff has filed a separate action under a separate docket number the pleadings remain open. Additionally, it is asserted by the original defendant, Phillips, that to grant the additional defendant’s motion for judgment on the pleadings is premature at this juncture because the parties have not yet taken depositions of the parties. This line of argument is amiss. Pursuant to the Pennsylvania Rule of Civil Procedure 1034, a party may move for judgment on the pleadings after the relevant pleadings are closed, but within such time as not to unreasonably delay the trial. A court is not to consider depositions taken by the parties or any other material outside the record of the pleadings including answers to interrogatories, admissions and affidavits. Goodrich-Amram 2d § 1034(B); Bensalem Township School District v. Commonwealth, 518 Pa. 581, 544 A.2d 1318 (1988). When the court conducts its inquiry on a motion for judgment on the pleadings, it should confine its deliberation to the pleadings and relevant documents remembering not to consider any affidavits, depositions or briefs. Gallo v. J.C. Penney Casualty Insurance Co., 328 Pa. Super. 267, 476 A.2d 1322 (1984). The only pleadings which are relevant to the cause of action presently before the court are those pleadings which explicitly involve the cause of action before the court and more specifically the issues before the court, not those involving some other cause of action and some other parties filed under another docket number. The arguments regarding the premature nature of the additional defendant’s motion are therefore meritless. The court will consider this motion for judgment on the pleadings filed to this term and number on its merits pursuant to Pa.R.C.P. 1034.

The first issue that must be clarified is whether a minor may be held liable for injuries sustained as a proximate result of furnishing alcohol to another minor under the social host doctrine. We are guided by the following case law in making the determination that minors cannot be found liable under the social host doctrine.

Let us start by first defining the social host doctrine. Generally, this principle is used to assign liability in negligence to the “host” as one who furnishes alcohol to a “guest” whereby the guest becomes intoxicated and sustains injuries to himself or causes injuries to a third party. The basis for liability upon the host is that he is the person who provided the intoxicating beverages, setting in motion the events which led to the complained of injuries. Kapres v. Heller, 536 Pa. 551, 640 A.2d 888 (1994); see Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983) (definition compiled from various social host theories used in several jurisdictions). The term “minor” when used in the context of social host liability is utilized to refer to individuals under the age of 21. Kapres, 536 Pa. 551, 640 A.2d 888 (19-year-old plaintiff was referred to as a minor); Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983) (18 year old was considered a “minor”); see also, 75 Pa.C.S. §3801. The Pennsylvania State Legislature has declared a blood alcohol reading of .08 percent presumes an individual is under the influence of alcohol. 75 Pa.C.S. §3802(a). This standard has been used as a benchmark by our courts and legislature to encompass that degree of intoxication that renders a person under the influence of alcohol.

The prevailing view on the matter of social host liability is found in the Pennsylvania Supreme Court case Kapres v. Heller, 536 Pa. 551, 640 A.2d 888 (1994). There the Supreme Court was confronted with the identical issue involving social host liability. In Kapres, the plaintiff was a college student at Clarion University and attended three separate alcohol-related parties all hosted by minors on the night in question. The plaintiff, who was only 19 years old, ingested alcohol at all three parties, and while walking home that night, he was struck by a vehicle and sustained numerous injuries. At the time of the accident the plaintiff had a blood alcohol content of .196, which was significantly higher than the legal limit of 0.10 percent in 1986. See 75 Pa.C.S. §3802 (1986). The plaintiff brought causes of action against the minor hosts who served him alcohol under the social host doctrine. In his claims, he asserted that his intoxication proximately caused him to be hit by an automobile driven by an additional defendant. The minor defendants filed motions for summary judgment on the basis that they owed no duty to the minor plaintiff for injuries sustained as a result of his intoxication, which prohibited the plaintiff from recovery against the defendants as a matter of law. The motions for summary judgment were granted and affirmed by the Superior Court and subsequently the Supreme Court on appeal. In the opinion of the Supreme Court, Justice Cappy wrote, “it is more logical and consistent with the prevailing view on social host liability in this Commonwealth to find that one minor does not owe a duty to another regarding the furnishing or consumption of alcohol.” Kapres, at 557, 640 A.2d at 891. (footnote omitted) We will now expand on the basis of this theory below.

In Kapres, the court ultimately found that a plaintiff and defendant, who were both minors, were incompetent as a matter of law in handling alcohol. Kapres, supra at 557, 640 A.2d at 891. A minor is responsible under the law for his/her own actions in either furnishing or consuming alcohol. Id. at 557, 640 A.2d at 891. This notion was coupled with the standard set by the Supreme Court of Pennsylvania in Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983) where it addressed the idea of social host liability. In Klein the court found that where an able bodied individual consumes alcohol, “it is the consumption of alcohol rather than the furnishing of the alcohol, which is the proximate cause of any subsequent occurrence.” Klein, supra at 148, 470 A.2d at 510. (emphasis added) The view accepted by the Klein court follows the common-law view. See Anno: Damage from the Sale or Gift of Liquor or Drug. 97 A.L.R.3d 528 §2 (2004); 45 Am. Jur.2d Intoxicating Liquor §553. TheKapres court as well as others agreed that there can be no liability on the minor social host who serves alcohol to guests.

There is an exception to the rule established in Klein which involves furnishing alcohol to a minor by an adult. This exception was established by the court in Congini v. Portersville Valve Company, 504 Pa. 157, 470 A.2d 515 (1983). The Supreme Court held that the rule in Klein is inapplicable in those situations where an adult provides a minor with alcohol. Congini, supra. The concept that a minor is incompetent to handle alcohol has necessitated the exception to the rule of Klein. Id. The premise for the exception is grounded in insuring the safety of minors. Yet, the minor himself is not totally blameless in this factual setting because the Congini court further held that the minor’s contribution to his/her injuries, or contributory negligence, will also be taken into account. Id. at 164, 470 A.2d at 518. This holding brings us back to the assertions made in Kapres case where the court expands upon the theory in Klein whereby under the law minors are considered incompetent to handle alcohol. It is logic and consistency that led the Supreme Court to hold that one minor owes no duty to another minor under the guise of social host liability regarding the furnishing and consumption of alcohol. We too agree that a minor is not liable to another minor for injuries that might have been sustained as a result of the host minor’s distribution of alcohol to another under the age of 21. Therefore, the pleadings establish that there are no material facts in dispute upon the issue of social host liability. It is therefore proper to grant the additional defendant Potts’ judgment on the pleadings upon this issue.

Negligence

Count I of the joinder complaint of original defendant Phillips alleges a claim in negligence upon the additional defendants, including Ryan Potts, the movant asserting the following actions and inactions as the basis of the negligence claim:

(a) Selling alcoholic beverages to individuals, including decedent Robert Skaf, under the age of 21;

(b) Providing alcoholic beverages to individuals, including decedent Robert Skaf, under the age of 21;

(c) Furnishing alcoholic beverages to individuals, including decedent Robert Skaf, under the age of 21;

(d) Permitting Mr. Skaf to consume alcoholic beverages when they knew or should have known that he was under the age of 21;

(e) Allowing Mr. Skaf to consume alcoholic beverages when they knew or should have known that he was under the age of 21;

(f) Inviting Mr. Skaf to consume alcoholic beverages when they knew or should have known that he was under the age of 21;

(g) Allowing Mr. Skaf to become intoxicated;

(h) Organizing a beer pong tournament and targeting individuals and/or students, including decedent Robert Skaf, under the age of 21;

(i) Negligence as a matter of law for furnishing liquor or malt or brewed beverages to Robert Skaf, he being less than 21 years of age, his age being known to additional defendants, in violation of 18 Pa.C.S. §6310.1;

(j) Negligence as a matter of law for violating the “Liquor Code,” 47 Pa.C.S. §4-493(1); and

(k) Negligence as a matter of law for violating the “Liquor Code,” 47 Pa.C.S. §4-492(2).

As cited above, a minor is responsible under the law for his/her own actions in either furnishing or consuming alcohol. The additional defendant requests a favorable judgment on the pleadings in regard to the negligence claim. Yet, according to the standard of review set forth above, judgment on the pleadings is only proper where the pleadings establish that there are no material facts in dispute and the movant is clearly entitled to judgment as a matter of law. Teamann, supra. The acts and events that gave rise to the fatal injuries of Robert Skaf took place at several locations and included a number of individuals including the additional defendants and original defendants, David Phillips and Robert R. Lyons individually and in his business capacity. Simply stated, there presently are material facts that are in dispute in regard to the negligence action asserted against Potts. There are also factual disputes as to whether the potentially negligent acts of Ryan Potts would cause him to be liable to the plaintiff or over to the original defendant Phillips for contribution or indemnification. Therefore, because this is not a clear case that is free from doubt whereupon there are no issues of material fact, we cannot grant the additional defendant’s motion for judgment on the pleadings upon the issue of negligence. A comprehensive order consistent with this memorandum follows.

ORDER

And now, to wit, January 18, 2005, upon consideration of additional defendant Potts’ motion for judgment on the pleadings, verbal and written arguments of counsel and in accordance with the preceding memorandum it is hereby ordered and decreed that the additional defendant Potts’ motion for judgment on the pleadings be granted in part and denied in part.

(1) Additional defendant, Potts’ motion for judgment on the pleadings is granted because as a minor he is incompetent to handle alcohol and therefore he cannot be held liable under the social host doctrine for furnishing alcohol to a minor who was subsequently injured as a proximate result of his intoxication.

(2) The additional defendant Potts’ motion for judgment on the pleadings concerning the negligence count is denied.

      . Selling or furnishing liquor or malt or brewed beverages to minors.

      . Correct cite 47 P.S. §4-492(2); Unlawful acts relative to malt or brewed beverages, i.e., selling said beverages without liquor license.