author: MINORA, J,

text:
    Loff v. Granville

      Sal Cognetti and Vincent Cimini, for plaintiff.

      Michael Domanish and James Beausoleil Jr., for defendants.
    October 17, 2005
   MINORA, J,

Presently before the court is the motion for summary judgment presented by defendants Cary Kasa, Silverbrook Anthracite Inc. and Casey Kassa Enterprises Inc. (pled as Casey Kasa Enterprises Inc.) (Kasa defendants). The plaintiffs have filed a response to said motion, and the parties argued their respective points at oral argument before the court on October 5, 2005. This matter is now ripe for adjudication.

STATEMENT OF THE CASE

This case began with a series of events which occurred on November 9, 1999, upon Archbald Mountain, Lackawanna County, Pennsylvania. The plaintiff, Loff, and two of his friends began their afternoon by imbibing alcoholic beverages and riding their all-terrain vehicles (ATVs) in the wooded areas between Carbondale City and the Borough of Archbald. The plaintiff alleges that he and his friends traversed up Archbald Mountain in search of a shooting range when they took a wrong turn down an access road leading them to the defendants’ mining site where mining equipment, trucks and trailers were placed upon a clearing in the woods. (N.T. Brad Loff, pp.108, 114-15.) This mining site was owned and operated by defendants Silverbrook Anthracite Inc. and/ or Casey Kasa Enterprises Inc. While upon the defendants’ property the plaintiff was shot in the arm.

At all times relevant to this matter, Casey Kasa Enterprises Inc. and Silverbrook Anthracite Inc. have been incorporated under the laws of Pennsylvania. Silverbrook Anthracite has been and continues to be in the business of mining and water well drilling. Casey Kasa Enterprises Inc. has been and continues to be in the business of transporting the materials exhumed from the mining sites to the preparation plants for processing. Cary Kasa is an owner and officer of both coiporations. Marie Helen Granville was a former employee of Casey Kasa Enterprises Inc. and she remained friends with Mr. Kasa after her employment ended. (N.T. Cary Kasa, p. 64.)

In the days prior to the subject incident, the property owned by the defendant corporations on Archbald Mountain was vandalized. On the morning of November 9, 1999, Mr. Kasa contacted Ms. Granville to assist him in cleaning up from recent vandalism. (N.T. Cary Kasa, pp. 69-72.) Mr. Kasa picked up Granville at her home in Mayfield and then drove his Toyota pickup truck to the site to survey the damage. (N.T. Cary Kasa, pp. 78-79.) Mr. Kasa kept a loaded Mossberg 500E, .410 gauge shotgun in the cab of his pickup. Once on the site, Granville and Kasa, carrying his shotgun, entered the “main” trailer which showed visible signs of vandalism. Mr. Kasa left both Ms. Granville and his .410 gauge shotgun in the main trailer while he went to another area of the site. (N.T. Cary Kasa, pp. 82-83.) After Kasa left Granville alone, the plaintiff and his friends approached the mining site upon their roaring ATVs. Ms. Granville, startled, exited the trailer, with the shotgun at her side. Ms. Granville reportedly was untrained in the use of firearms. (N.T. Marie Helen Granville, p. 39.) She told the intruders that the area was restricted and to turn off their vehicles. When the intruders failed to respond to her request she raised the shotgun as a scare tactic. Allegedly, the gun accidentally discharged, sending a bullet through the plaintiff’s arm. (N.T. Granville, pp. 40-44.) The plaintiff averred that the area was not posted with “no trespassing” signs. The defendants provided conflicting testimony that the area was prominently posted with signs, other warnings and barriers prohibiting entrance upon the private property. (N.T. Cary Kasa, pp. 40-43.)

The plaintiff commenced this action by complaint originally filed on December 12, 2000 and named as defendants Cary Kasa and Marie Helen Granville. The complaint was later amended on April 25,2001, whereby the plaintiff joined defendants Casey Kasa Enterprises Inc. and Silverbrook Anthracite Inc. as captioned above, asserting claims of negligence and respondeat superior. On November 21, 2001, Ms. Granville entered into an agreement with the plaintiff concerning her involvement in this action, which is one of several issues raised by the defendants’ motion for summary judgment that will be discussed further below.

SUMMARY JUDGMENT STANDARD

Pennsylvania Rule of Civil Procedure 1035.2 provides that summary judgment is appropriate only in those cases where the record demonstrates that there is no genuine issue of any essential or material facts and that the moving party is entitled to judgment as a matter of law. Bird Hill Farms Inc. v. United States Cargo & Courier Service Inc., 845 A.2d 900, 903 (Pa. Super. 2004); Conway v. Tink’s Spearment Café Inc., 01 CIV 6105 C.C.P. Lacka. Cty. (Judge Minora, August 13, 2004). In making that determination, the record must be viewed “in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Phillips v. Cricket Lighters, 576 Pa. 644, 651, 841 A.2d 1000, 1004 (2003). Therefore, summary judgment may be entered only “[wjhen the facts are so clear that reasonable minds cannot differ,” Duquesne Light Co. v. Pennsylvania American Water Co., 850 A.2d 701, 703 (Pa. Super. 2004), and it is “free from doubt the moving party is entitled to judgment as a matter of law.” Savage, Sharkey, Reiser & Szulborski Eye Care Consultants v. Tanner, 848 A.2d 150, 153 (Pa. Super. 2004); O’Brien v. Ohio Casualty Ins. Co., 105 Lacka. Jurist 60, 62-63 (2004). “Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof. . . establishes the entitlement of the moving party to judgment as a matter of law.” Downey v. Crozer-Chester Medical Center, 817 A.2d 517, 524 (Pa. Super. 2003) quoting Young v. PennDOT, 560 Pa. 373, 376, 744 A.2d 1276, 1277 (2000). Let us now turn to the issues presented by the defendants’ motion for summary judgment.

DISCUSSION

The first issue centers upon an agreement entered by the plaintiff and defendant Granville on November 21, 2001. Mainly, we must determine whether the plaintiff’s claims against the Kasa defendants have been terminated on account of the agreement made between the plaintiff and Granville. It is the Kasa defendants’ contention that since the plaintiff has settled and released his claims with

Granville, an agent, the remaining claims asserted against the principal, Kasa defendants, have been extinguished. We disagree. The material terms of the agreement at issue are as follows:

“Brad Loff, a competent individual... and Marie Helen Granville, a competent adult individual. . . and her insurance carrier, Selective Insurance Company, hereinafter, “the parties,” that in exchange for the payment of $100,000 made by Marie Helen Granville and her insurance carrier, Selective Insurance Company, to Brad Loff within seven days from the date of the execution of this agreement, Brad Loff will withdraw with prejudice the punitive damages claim he has asserted against Marie Helen Granville in the lawsuit filed to Lackawanna County civil docket no. 2000-CV-6166 as a result of a shooting which occurred involving Brad Loff and Marie Helen Granville on November 9, 1999, and will agree not to enforce any subsequent judgment against Marie Helen Granville which he may obtain against Marie Helen Granville in the lawsuit filed to Lackawanna County civil docket no. 2000-CV-6166 as a result of a shooting which occurred involving Brad Loff and Marie Helen Granville on November 9,1999[.]... In the event the jury would return a verdict for $100,000 or in excess of $100,000, Brad Loff agrees to refrain from enforcing any subsequent judgment he may obtain against Marie Helen Granville only____The parties further understand and agree that this agreement is not a release and shall not be construed as a release.”

Settlement agreements are “contracts and must be considered pursuant to the general rules of contract interpretation.” Miller v. Ginsberg, 874 A.2d 93, 99 (Pa. Super. 2005); Friia v. Friia, 780 A.2d 664, 668 (Pa. Super. 2001). In interpreting contract language it is essential that the court ascertain and give effect to the parties’ intent. Id. It is beyond cavil that the meaning of a clear and unambiguous contract must be determined from the four comers of the contract. Seven Springs Farm Inc. v. Croker, 569 Pa. 202, 801 A.2d 1212 (2002). The Superior Court stated that the court can construe the meaning of a contract only as written and may not modify the plain meaning of the words under the guise of interpretation. Lang v. Meske, 850 A.2d 737, 740 (Pa. Super. 2004). Furthermore, the court may not ignore the clear, plain and unambiguous language of the contract simply because one party to the agreement failed to anticipate associated complications prior to performance. Miller, supra; Friia, supra. The court must decide if the terms of a contract are clear and unambiguous as a question of law. Lang v. Meske, 850 A.2d 737 (Pa. Super. 2004).

Presently, the court is called upon to look to the language of the partial settlement agreement between the plaintiff, Loff, and defendant, Granville. It is evident from the unambiguous terms stating “[t]he parties further understand and agree that this agreement is not a release and shall not be construed as a release” to mean that the parties had no intention to release Granville from the suit. The contract directs that the punitive damages claim asserted against Granville be withdrawn and likewise, any money judgment awarded to the plaintiff in the future be unenforceable against Granville. The effect of this agreement keeps Granville as a named party in the suit, since she has not been released and the negligence action asserted against her remains alive. Resultantly, we can clearly find that the partial settlement agreement between plaintiff and Granville has absolutely no effect upon the remaining defendants. The assertion that November 21,2001 agreement terminates the claims brought by the plaintiff against the Kasa defendants is disingenuous, and the claims of negligence and respondeat superior against the Kasa defendants remain intact and fully actionable by the plaintiff.

The Kasa defendants insist that summary judgment is appropriate in that it is well settled law that the owner of a firearm owes no duty to protect others from a third party’s misuse of the firearm. Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957). Although this declaration has some merit, it is not applicable to the underlying circumstance, nor is it the law of this case. Let us turn to the decision made during the preliminary objection stage of this litigation wherein this court established that “an owner of a weapon owes a duty to all people who might suffer harm or injury from the weapon’s discharge and this includes harm inflicted by a third person if the owner knew or had reason to know that such person was likely to use the weapon in such a manner as to create an unreasonable risk of harm.” Loff v. Granville, 00 CV 6166 C.C.P. Lacka. Cty. (Judge Terrence Nealon, April 25, 2001); citing Frey by Frey v. Smith, 454 Pa.Super. 242, 685 A.2d 169 (1996), alloc. denied, 549 Pa.701, 700 A.2d 441 (1997); see also, Restatement (Second) of Torts §308 (1965-2005). It is likewise the law of the case that in regard to the reasonable foreseeability of the risk of injury, “the fact-finder could infer that... the owner of the gun knew or should have known that [the co-defendant] was likely to use the weapon in such a manner as to create an unreasonable risk of harm.” Id. at 8. Viewing the record in the light most favorable to the non-moving party, there appears to be evidence sufficient by which the jury may infer that the defendants’ actions/inactions presented a situation by which the owner of the gun knew or should have known that the gun may be used in a manner as to create an unreasonable risk of harm. It is clear that there is a factual issue before us appropriate for submission to a jury. Therefore, it is improper for the court to make a factual determination regarding the element of foreseeability or any possible knowledge on the part of the Kasa defendants pertaining to the likelihood that Granville may use the gun in a manner that would create unreasonable risk of harm. It would be inappropriate at this juncture for the court to disregard the pending material factual questions by granting summary judgment. Therefore, it is denied on this basis.

There are several separate issues raised by the defendants’ request for summary judgment regarding the status of the plaintiff upon the Kasa defendants’ property. It is recognized that the standard of care that a landowner owes to an entrant upon his land is dependent upon that individual’s status as a trespasser, licensee or business invitee. Cresswell v. End, 831 A.2d 673 (Pa. Super. 2003); Trude v. Martin, 442 Pa. Super. 614, 660 A.2d 626 (1995). It is the general rule that this determination is a matter of fact proper for a jury. Id. In regard to the status of an individual upon another’s land, the Superior Court has held that where the evidence is insufficient to support more than one conclusion, then the issue may be decided by the court. Cresswell, supra at 675. Presently, that is not the case as the issue of the plaintiff’s status upon the mining site is contested. There has been evidence produced by both the plaintiff and defendants regarding Loff’s status as a trespasser versus as a business invitee. We therefore conclude that the legal status of the plaintiff upon the Kasa defendants’ land is a factual issue which must be determined by the jury. Therefore, summary judgment is denied on this basis.

The final issue offered by the defendants pertains to immunity provided to landowners pursuant to the Recreational Use of Land and Water Act, 68 P.S. §477-3. We find that the defendants’ arguments are frivolous and that they misapply the Act. The statute provides that a landowner owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition. See 68 P.S. §477-3 As stated within the statute, the purpose of the Act is to encourage landowners to make their land and water available for public recreational use. See 68 P.S. §477-1. The Supreme Court stated that the obvious purpose and legislative intent of the act is that it be applied to land devoted to recreational purposes. Stone v. York Haven Power Company, 561 Pa. 189, 194, 749 A.2d 452, 455 (2000). The court further stated that, “[t]he intention of the Legislature to limit the applicability of the Recreational Use of Land and Water Act [RULWA] to outdoor recreation on largely unimproved land is evident not only from the Act’s stated purpose but also from the nature of the activities it listed as recreational purposes within the meaning of the statute.” Id.

Undoubtedly, the Kasa defendants’ active mining site does not qualify as a tract of land devoted to recreational use. It is arguably the site of an active business, allegedly also posted to keep out trespassers, although the defendants would like this court to believe they should be granted immunity under the Act since their property was allegedly being utilized in a recreational manner by the plaintiff. Cleary such an application of the statute disregards the contested facts of this case, and it further disregards the legislative intent. Given such contested facts, we therefore refuse to grant the Kasa defendants, specifically, Silverbrook Anthracite Inc., immunity based upon the Recreational Use of Land and Water Act. An appropriate order follows.

ORDER

And now, to wit, October 17, 2005, upon consideration of the written arguments of counsel and in accordance with the preceding memorandum the following is hereby ordered and decreed that defendants Cary Kasa, Silverbrook Anthracite Inc. and Casey Kassa Enterprises Inc. (pled as Casey Kasa Enterprises Inc.) motion for summary judgment is denied.

      . The plaintiff, Brad Loff, and his companions reportedly were unarmed. (N.T. Brad Loff, p. 111.)

      . Cary Kasa referred to Granville as his contact person for the Archbald Mountain area. She was designated as such and given a key to gain access after her short employment and because of her close location of her home to the mining site. (N.T. Cary Kasa, pp. 69-76.) (N.T. Marie Helen Granville, pp. 30-31.)

      . Ms. Granville presented deposition testimony that she was unaware that the gun was loaded. (N.T. Granville, pp. 37-38.)

      . Cary Kasa provided deposition testimony that both “No Trespassing” signs were spread throughout the subject area, posted on trees and posted on the gate off the Meridian Street exit. The words “Keep Out” were painted upon rocks along the scale area of the mining site. (N.T. Cary Kasa pp. 40-43, 56-58.)

      . Deposition testimony establishes that the loaded gun was left on the table of the trailer with no instruction as to its use. (N.T. Granville, p. 37.) (N-T. Kasa, pp. 103-104.) Reportedly, there were several previous incidents involving vandalism which was one of the reasons Mr. Kasa carried the gun with him to the mining site on the day at issue. (N.T. Kasa, pp. 78-79, 81.) Mr. Kasa never provided Granville with training in the area of firearm usage. (N.T. Granville, p. 39.)

      . Deposition testimony has been presented regarding the use of Kasa defendants’ property by individuals who were given keys to the main gate by Mr. Kasa for the purpose of driving their vehicles onto the property as well as ATVs. (N.T. Loff, p. 122.) The defendants provide testimony that the area was posted with signs, other warnings and barriers prohibiting entrance upon the private property, despite the plaintiff’s assertions to the contrary. (N.T. Cary Kasa, pp. 40-43.)

      . “Recreational purpose” includes, but is not limited to . .. hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, water sports, cave exploration and viewing or enjoying historical, archaeological, scenic, or scientific sites. 68 P.S. §477-2(3).


source: Caselaw Access Project

author: MOTTO, P.J.,

license: Public Domain

text:
    Commonwealth v. Hanna

      Birgitta C. Tolvanen, for Commonwealth.

      Nick A. Turco Jr., for defendant.
    August 11, 2005
   MOTTO, P.J.,

Before the court for disposition is the defendant’s motion to suppress evidence.

The issue to be decided by the court is whether the Pennsylvania State Police had the authority to obtain information from defendant’s mental health records from the Lawrence County Mental Health/Mental Retardation Administrator without a warrant in the investigation of a charge of violating 18 Pa.C.S. §6111 and 18 Pa.C.S. §4904.

The defendant was charged under 18 Pa.C.S. §6111, providing false information during the sale or transfer of firearms and under 18 Pa.C.S. §4904, unsworn falsification to authorities.

18 Pa.C.S. §6105(c)(4) specifically prohibits a person who has been involuntarily committed to a mental institution from possessing, manufacturing, selling or transferring firearms.

The defendant attempted to purchase a Taurus 9mm pistol at Allegheny Outfitters on 1116 Croton Avenue, New Castle, Pennsylvania, 16101, in Lawrence County. The defendant filled out the Pennsylvania State Police Application/Record of Sale of a Firearm form. He answered “no” to question 31, which stated, “Have you ever been convicted of a crime enumerated in section 6105(b), or do any of the conditions under 6105(c) apply to you?” The applicable portion of 18 Pa.C.S. §6105(c)(4) prohibits the possession orpurchase ofafirearm by “A person who has been adjudicated as an incompetent or who has been involuntarily committed to a mental institution for inpatient care and treatment.” John Klenotic, the administrator of the Lawrence County Mental Health/Mental Retardation office, informed State Trooper Weller that defendant’s mental health records indicated that the defendant had four separate involuntary commitments to a mental institution for inpatient care and treatment.

The issue before the court is whether it was permissible for a Pennsylvania State Trooper to obtain the mental health records of the defendant, or information thereon, without a search warrant.

The confidentiality of mental health records is addressed by the Mental Health Procedures Act, 50 P.S. 7111, which provides:

“(a) All documents concerning persons in treatment shall be kept confidential and, without the person’s written consent, may not be released or their contents disclosed to anyone except:

“(1) those engaged in providing treatment for the person;

“(2) the county administrator, pursuant to section 110;

“(3) a court in the course of legal proceedings authorized by this act; and

“(4) pursuant to federal rules, statutes and regulations governing disclosure of patient information where treatment is undertaken in a federal agency....

“(b) This section shall not restrict judges of the courts of common pleas, mental health review officers and county mental health and mental retardation administrators from disclosing information to the Pennsylvania State Police or the Pennsylvania State Police from disclosing information to any person, in accordance with the provisions of 18 Pa.C.S. §6105(c)(4) (relating to persons not to possess, use, manufacture, control, sell or transfer firearms).”

In a case analogous to the one presently before the court, the Pennsylvania Superior Court stated:

“Section 6105(c)(4) of the crimes code specifically prohibits persons who have been involuntarily committed to a mental institution from possessing, or obtaining a license to possess, a firearm. Consequently, section 7111 of the MHPA clearly authorized the trial court to disclose the information regarding appellant’s commitment . . . .” Commonwealth v. Emmil, 866 A.2d 420, 422-23 (Pa. Super. 2005).

Accordingly, the State Trooper was authorized to receive the defendant’s mental health records without a search warrant. The only difference between the Emmil case and this case is that in Emmil the trial court ordered the records disclosed to the State Trooper and in this case Trooper Weller received the information from John Klenotic, the Lawrence County Mental Health/Mental Retardation Administrator and Custodian of Records. It is expressly stated in 50 P.S. 7111(b) that county mental health and mental retardation administrators are permitted to disclose information to Pennsylvania State Police. Therefore, there is no reason the State Trooper in this case could not acquire the record without a search warrant since there is no mention of a required search warrant in the statute, and no issue of constitutionality of the search is raised.

Although the defendant has cited to the court the Federal Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, the court does not find any provision thereof that would prevent the application of the Mental Health Procedures Act. The federal statute deals with standards for exchange of health care information in order to improve operation of the health care system and to accommodate the needs of health care providers and insurers of health care. The statute makes no reference to the legality of divulging mental health records to the Pennsylvania State Police to enforce provisions of the crimes code relating to the unlawful possession or use of firearms, and defendant cites no provision of the federal statute that would make such disclosure unlawful.

In accordance with the court’s ruling in Emmil and 50 P.S. 7111(b), the defendant’s motion to suppress is denied.

ORDER

And now, August 11,2005, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that defendant’s motion to suppress is denied.


author: BERNSTEIN, J.,

text:
    Salkin v. Mastercard International Inc.

      Howard D. Scher, for plaintiff.

      Thomas P. Manning, for defendant.
    October 9, 2005
   BERNSTEIN, J.,

This appeal presents straightforward issues: (1) Whether a non-party to a contract may invoke a contract’s arbitration clause to dismiss all allegations in a class action lawsuit, and (2) when dismissal is denied, may that non-party to the contract claim aright of interlocutory appeal by having characterized their motion as a motion to compel arbitration.

This class action was commenced on August 20,2004, deriving from defendant Mastercard International Incorporated’s allegedly unlawful charges for international financial transactions. Defendant Mastercard International Incorporated is not a bank, does not issue Mastercard credit cards and has no contract with either the representative plaintiff or any class member. Preliminary objections which did not raise the issue that class action was prohibited were filed and sustained in part by order of January 26, 2005.

On December 2, 2004, a case management order was issued setting discovery, motion deadlines and projected a class certification hearing date. On March 24, 2005, plaintiff filed a motion for partial summary judgment together with a motion for class certification. On March 28, 2005, defendant Mastercard International Incorporated filed a motion entitled “petition to compel arbitration,” a motion which is really a motion to dismiss all class allegations and compel representative plaintiff’s individual claim to arbitration. By order dated June 2, 2005, plaintiff’s motion for partial summary judgment was denied. By order dated June 7, 2005, defendant’s “petition to compel arbitration and for a stay of proceedings” was denied. It is from this order that the defendant appealed to the Superior Court on June 9,2005. On June 10, 2005, the court extended discovery for the purpose of conducting previously court-ordered depositions. By order dated July 12, 2005, defendant’s second motion for stay was denied and pursuant to plaintiff’s “motion to overrule frivolous claims of privilege,” a special master was appointed to review hundreds of pages of allegedly privileged documents. Before the special master could rule, the activities of the special master halted when the Superior Court issued a stay of proceedings.

Defendant Mastercard International Incorporated does administrative work and financing for numerous banks which issue Mastercard credit cards to consumers. Defendant Mastercard International Incorporated has no agreement with representative plaintiff or any other class member. Defendant Mastercard International Incorporated filed a petition to dismiss all class allegations and remand only plaintiff Salkin’s individual action to arbitration. The only basis for defendant Mastercard International’s motion is the cardholder agreement between representative plaintiff and Chase Bank, a non-party. The court held a hearing on “defendant’s emergency motion for stay” on June 30, 2005, at which the parameters of this motion to remand for arbitration were clarified.

“The Court: You’re not a party to that agreement are you?

“Mr. Scher: Well...

“The Court: You are a party?

“Mr. Scher: We are not a signatory to that agreement.

“The Court: Are you a party?

“Mr. Scher: Well if the party you know is ...

“The Court: Well it can’t be an ‘if.’ You know what a party is. I know what a party is, particularly a party to a contract has been defined since medieval England. On behalf of your client are you a party to that agreement?

“Mr. Scher: The word party is contained in third-party beneficiary.

“The Court: Are you a party?

“Mr. Scher: We are not a direct party.

“The Court: Are you a party for that agreement?

“Mr. Allegaert (on behalf of defendant Mastercard International Incorporated): If I may, your honor, we’re not a party to that agreement, defendant Mastercard acknowledges that we’re not a party to plaintiff’s cardholder agreement.”

Defendant Mastercard International Incorporated is relying on the claim that they have chosen to be a third-party beneficiary of a contract to which they are not a party. They call this unsupported theory “equitable estoppel.” To present an arguable interlocutory appeal, defendant Mastercard International Incorporated is compelled to transmogrify a motion which seeks the “dismissal of all class allegations” into “remand to arbitration” and, by legerdemain, transform the words “third-party beneficiary” (which they clearly are not) into “equitable estoppel.” The reality is, defendant claims that because the agreement between the named plaintiff and his bank, a non-party to this litigation, required arbitration of individual claims between a cardholder and the bank, and preclude class action litigation, as a third-party beneficiary defendant is entitled to the same option.

The claim that the defendant herein imposed unlawful hidden charges is no different than any other dispute between a customer who makes a consumer purchase using his credit card and any other seller. A seller who is not a party to the credit card contract between the purchaser and his bank has no right to claim their dispute must go to arbitration, neither does defendant herein.

In fact, defendant Mastercard International Incorporated’s claim that arbitration is mandated as a third-party beneficiary is actually a non-appealable motion to dismiss this class action. At the hearing of June 30, the court investigated this nature of the motion:

“The Court: Really you claim to go to arbitration with the motion to dismiss all class actions because in going to arbitration you’re really seeking to enforce a clause that says you can’t bring a class action in arbitration, right?

“Mr. Allegaert: That is correct, your honor, but we disagree with your honor’s characterization of our petition as being a motion to dismiss all class actions.

“The Court: So it’s a motion to go to arbitration, the effect of which is to dismiss all class allegations, correct? Or incorrect?

“Mr. Allegaert: The effect of it would be to preclude this plaintiff from proceeding further in this court.

“The Court: Now answer my question. It’s a motion to order the case to arbitration without any class action allegations, correct?

“Mr. Allegaert: Correct.”

Plaintiff alleges that Mastercard International Incorporated has been unjustly enriched by hiding a “currency conversion fee” into the transaction amount charged cardholders through their bank whenever cardholders purchase goods or services in currencies other than U.S. dollars. Plaintiff has filed this lawsuit on behalf of himself and 400,000 other Pennsylvania cardholders who have paid such hidden fees. Plaintiff asserts no claim against any issuing bank or any defendant other than Mastercard International Incorporated. Plaintiff does not rely on any contractual relationship between the cardholder and the defendant for their claim. Mastercard International Incorporated, in their answer to the amended complaint, affirmatively states that there is no relationship contractual or otherwise with plaintiff or any other Pennsylvania cardholder class member.

There simply is no agreement to arbitrate between plaintiff and Mastercard International Incorporated. Mastercard International Incorporated is not a party to any cardholder agreement containing an arbitration clause. A non-party cannot avail itself of an arbitration clause contained in a contract. See Cumberland-Perry Area Vocational-Technical School Authority v. Bogar & Bink, 261 Pa. Super. 350, 396 A.2d 433 (1978). A contractual arbitration clause has never been extended to claims by or against non-parties. See PBS Coal v. Hardhat Mining Inc., 429 Pa. Super. 372, 632 A.2d 903 (1993) and Schoellhammer’s Hatboro Manner Inc. v. Local Joint Executive Board, 426 Pa. 53, 231 A.2d 160 (1967). Arbitration agreements are to be strictly construed and not extended by implication. Emmaus Municipal Authority v. Eltz, 416 Pa. 123, 204 A.2d 926 (1964). There is no “equitable estoppel” exception to the requirement of contractual privity to an agreement which would require this court to dismiss all class allegations in order to send this matter to arbitration. There is no “equitable estoppel” exception to privity to extend the grasp of the arbitration clause in a contract between a cardholder and his bank to the dismissal of all class action allegations. Further, the contract upon which defendant relies specifically includes only claims asserted by or against the parties to the contract, namely the representative plaintiff and his bank.

All class members are Pennsylvania residents. All signed up for and received their credit cards in Pennsylvania. All were billed in Pennsylvania. All paid their credit card bills in Pennsylvania. Defendant Mastercard International Incorporated claims that, by virtue of an arbitration clause in a contract to which it is a stranger, that the procedural right of class action litigation afforded to Pennsylvania citizens by case law and by rules of civil procedure adopted by the Pennsylvania Supreme Court are negated.

Pennsylvania favors class action treatment in appropriate cases. It is the policy of the Commonwealth of Pennsylvania that class certification rules should be liberally applied in favor of maintaining a class action. See Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 615 A.2d 428 (1992); Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 451 A.2d 451 (1982).

The claim presented is that the currency conversion fee on cardholders’ purchases overseas was one percent of the purchase price. Thus, even $1,000 in purchases would result in an illegal charge of only $10. Although the claim as class matter for 400,000 Pennsylvania residences could amount to millions of dollars, no individual could ever possibly pursue an action. The costs of pursuing 400,000 individual claims is totally prohibitive in comparison to recovery and would clearly preclude any remedy for minor wrongs. The entire purpose of class action litigation is to provide a vehicle for parties whose claims are not sufficient to allow for individual lawsuits. There is a “long-standing public policy of this Commonwealth to permit the aggregation of small claims which otherwise would not be litigated in individual actions.” Kelly v. County of Allegheny, 519 Pa. 213, 223, 546 A.2d 608, 612-13 (1988). “A critical fact in this litigation is that every individual stake in the damage award he seeks is only $70. No competent attorney would undertake this complex anti-trust action to recover so inconsequential an amount. Economic reality dictates that petitioner’s suit proceed as a class action or not at all.” Eisen v. Carlisle and Jacquelin, 417 U.S. 156 (1974). As the Superior Court said in McNulty v. H&R Block Inc., 843 A.2d 1267, 1273, “Avoiding the public court system to save time and money is a laudable society goal. But avoiding the public court system in a way that effectively denies citizen access to resolving every day social disputes is unconscionable. Goals favoring arbitration of civil disputes must not be used to work oppression. When the goals given in support of contract clauses like this are used as a sword to strike down access to justice instead of a shield against prohibitive costs, we must defer to the over-riding principle of access to justice.”

Accordingly, for the reasons set forth above, the decision of this court to deny the motion to dismiss, characterized as a motion to order arbitration without any right to class action status, should be affirmed because defendant Mastercard International Incorporated has no right to invoke Chase Bank’s right under a contract to which Mastercard International Incorporated is not a party.

      . The contract only allows the bank or the plaintiff the right to demand arbitration. It does not make arbitration mandatory. Defendant Mastercard International Incorporated actually claims the right to step into Chase Bank’s shoes to make and enforce this demand.

      . Amended complaint paragraph 4.

      . See also, paragraphs 2, 5, 18, 19, 22, 24, 25, 37 and 44 of defendant Mastercard International Incorporated’s answer to amended complaint.

      . Mastercard International Incorporated wishes to analogize to rulings in multi-district litigation in New York. However, there can be no analogy. In the New York litigation plaintiffs are asserting anti-trust and conspiracy claims against Mastercard International Incorporated, Visa and several issuing banks. In the New York multi-district litigation, plaintiffs have alleged agency, joint venture, common control and conspiracy.
      In the present case there is no conspiracy claim, no claim whatsoever is asserted against any bank. The case is presented exclusively against Mastercard International Incorporated based upon its own allegedly illegal practice. Plaintiff does not seek any agency liability, joint or several liability or any other form of secondary or vicarious liability against defendant Mastercard International Incorporated.

      . Since defendant Mastercard International Incorporated is not a party to the contract between Chase Bank and the named representative plaintiff or any class member and has no right to invoke its preclusion of class action status, the court has not analyzed whether an arbitration agreement which precludes class action litigation by a contract of adhesion violates Pennsylvania public policy.