*2 JOHNSON, CIRILLO, DEL Before SOLE and JJ. CIRILLO, Judge. from an order in the Court of appeal
This is an entered County sustaining prelimi- Montgomery Common Pleas of objections appellee Compa- Suburban Cable Television nary (Suburban) in dismiss- ny, Inc. the nature a demurrer and (Clifton). appellant Zebbie J. Clifton We ing complaint affirm. Correc- incarcerated at the Graterford prisoner is a
Clifton Prison) (the Graterford, In tional Institution Home-Vue, June, 1992, Perkiomen the Commonwealth and (Perkiomen) into a which provided entered Inc. cable service would install and maintain television Perkiomen 1,942 original The cells in the Prison. prison individual a years, to continue thereafter on term of the contract was basis. year-to-year convenience, required
For administrative from or on behalf payments to collect on to Perkiomen a payments inmates and then remit these for main- monthly responsibility Perkiomen assumed basis. repair the cable neces- taining keeping good equipment and The reception from each outlet. sary good safe installed responsible equipment for the cable inmates were fact, required were in their cells. the inmates placed agreed pay sign they retainer which responsibility *3 damaged destroyed. if the converter was up cable $50.00 written Finally, upon year’s that one provided Commonwealth, renegotiate its notice Perkiomen could to the rates, subject accep- the Commonwealth’s written cable 1986, company all and tance. In Perkiomen sold franchise rights to Suburban. December, 1987, responsibility
In a retainer signed Clifton in cell. Subur- in order to receive cable television services his price notice the Commonwealth that a ban sent a $1.00 service, March placed be on all cable effective increase would 1, not given The notice was Commonwealth 1989. in time stated the contract. Clif- requisite period within the ton, Prison, therefore, filed complaint objecting a with regarding The record not clear the rate increase. of Clifton’s initial complaint. outcome November, 1989, notice to the In sent a second Suburban be dis- informing it that basic service would 1990, that, January 1, and regular price at its as of continued instead, slightly a a contracted would be offered at package Again, complaint a with the Prison. higher price. Clifton filed Suburban, 1, 1990, eliminated its January promised, On as 142 it package replaced higher priced
basic with a combination package. in complaint against
Clifton filed a Suburban the Court of of Montgomery County claiming Common Pleas that Subur- (the Prison) ban breached its contract with the Commonwealth provide in that was bound to Suburban cable services to the price. sought preliminary injunction, Prison at a set Clifton a as compensatory punitive damages. response as well complaint, preliminary objections to Clifton’s Suburban filed in a Following hearing, the nature of demurrer. the Honor- injunctive able Albert R. Subers denied Clifton’s motion for Thereafter, relief. the Honorable Bernard- A. Moore sus- preliminary objections tained Suburban’s and dismissed Clif- complaint. appeal ton’s This followed. appeal,
On Clifton one our presents issue for review: Whether the trial court erred granting pre Suburban’s liminary objections in the nature of a holding demurrer and Clifton, services, as a and a prisoner subscriber of cable remedy has no at law as a third-party beneficia ry to the contract between Suburban and the Common wealth?
In an an appeal sustaining from order preliminary demurrer, objections the nature of a this court applies the same standard employed by the trial court: all material facts complaint set forth as well as all reasonably inferences therefrom are admitted purposes deducible as true for the Criste, Kyle review. v. McNamara & (1985); A.2d Magnetic Analysis Corp., Baker v. (1985). *4 188, 192, 470, Pa.Super. 500 A.2d 472 The question whether, presented by averred, the demurrer is on the facts the law with that no says certainty recovery possible. is any Where doubt exists as to whether a demurrer should be sustained, it should be resolved favor of overruling the Baker, Kyle, supra; demurrer. supra.
Although between the Commonwealth and may have been consummated with the Perkiomen/Suburban intent to benefit the inmates at the Graterford Correctional
143
to the
(e.g.,
provide
cable television services
Institute
inmates),
public
of
the
of
policy
the nature
this contract and
a
that the inmates have
preclude
finding
this Commonwealth
as
beneficiaries.
third-party
to sue under
(1983),
Liederbach,
47,
501 Pa.
Intended (1) promise ... a of a agreed beneficiary Unless otherwise recognition right if of a beneficiary is an intended beneficiary appropriate performance in the to effectu- is parties of either ate the intention (a) satisfy will an obli- performance promise of the beneficiary; gation promisee pay money (b) promisee indicate that the intends the circumstances beneficiary promised perfor- the benefit of give mance.
(2) a is beneficiary beneficiary An incidental who not an beneficiary. intended (1979) (emphasis § 302 Contracts 366,
added);
Pa.
A.2d
Scarpitti Weborg,
see also
v.
147
Co.,
(1992);
Pa.Super.
Strutz
State Farm Mut. Ins.
(1992).
must be
requirements
Pursuant
Section
two
a
under
an intended
met in order
assert
claim
a contract as
first
of the
sets forth
beneficiary.
prong
The
test
third-party
empowers the
court to
standing requirement
which
trial
determine,
discretion,
whether third-party
its
(Sec
in a
case. Restatement
appropriate
particular
status is
ond)
302(1)
(1979);
at
§
Scarpitti,
of Contracts
The
satisfaction of
prong requires
ment
of Contracts
at
(1) Chapter apply The rules stated this to contracts with government governmental agency except to the extent contravene the the law application policy would the contract or authorizing prescribing remedies its breach. 313(1) § (emphasis of Contracts
added). Nguyen Conference, See v. United States Catholic
145 (W.D.Pa.1982); Acc. v. General Flamini F.Supp. (1984). Assur., Pa.Super. Fire & Life a few circumstances 313 articulates a to Section Comment *6 beneficiary third-party to confer it is not advisable which government contracts: status under a direct may inappropriate which make Among factors for arrangements govern- the are against promisor action claims, of settlement litigation the and control over mental excessive service impairment the likelihood burden, as of alternatives such availability and the financial insurance. (em- § 313 cmt. a of Contracts added).
phasis mind, Judge we with Moore agree these standards With inmates at wholly inappropriate permit find the and it for cable televi- attempt Graterford to enforce and into Commonwealth Subur- entered the sion services the flow of may hamper intervention Allowing ban. such services, costs of may up and drive the these and other the of this Commonwealth. maintaining prisons regulating considerations, third- Notwithstanding the above-mentioned in this case because inappropriate status is party that the Common- the of the contract demonstrates language inmates to standing upon not the wealth did intend confer First, of the paragraph the opening sue under the contract. and the Common- agreement names Perkiomen/Suburban is named parties agreement. prisoner No wealth as the Second, the important, and more as to this contract. and Suburban only the contract states Specifically, the agreement. terms of the enforce the may rates may renegotiate its that Suburban provides written notice to the Commonwealth upon year’s one the ex- written Under approval. the upon Commonwealth’s contract, therefore, no prisoners have of the press terms or the rates challenge negotiation either the did not the Commonwealth changes Why unilateral thereof. unauthorized rate in- challenge apparently question appeal. of this beyond purview creases is we affirm trial Accordingly, court’s order sustaining objections in preliminary the nature of a demurrer and dis- missing complaint.
Order affirmed. SOLE, J.,
DEL dissenting files a opinion. SOLE,
DEL Judge, dissenting. Appellant prisoner is a at incarcerated the Graterford Cor- Graterford, rectional Institution in June of Home-Vue, the Commonwealth and Perkiomen Inc. install, contracted for Perkiomen to maintain and sell cable prison. television service to the This agreement contained a list of buildings be wired service which included all 1,942 the prison. cells at
Inmates responsi- were subscribe to service and were *7 ble for payment monthly charge. change the No of the charge amount of the was the permitted company unless year notified the Commonwealth one of its request advance the rate with the renegotiate Appellant Commonwealth. is an inmate and subscriber to the service. Suburban Cable Perkiomen, Company, Television Inc. is the successor to 10, Daniel McMonigle manager. M. is its On November gave the company price notice to the users that a new was 1,1990. January effective on There prior was no notice to the Commonwealth nor did it agree increase. filed suit an
Appellant seeking injunction and declaratory relief to the prevent increase. The trial court sustained Appellees’ Preliminary Objections finding Appellant that was not entitled to enforce the agreement terms the between the and the Commonwealth Defendants. The af- Majority however, firms; I since view the underlying agreement creat- persons
ed benefits situated as is I Appellant, must dissent.
The question simply put
is—does the contract with the
create a
of persons
class
who are intended
can
beneficiaries that
seek its enforcement? The Majority
that
correctly states
the law in this area
substantially
was
Liederbach,
v.
Guy
Court
changed by
Supreme
the
(1983)
Con-
47,
Accordingly, we express only parties where both the beneficiary itself, in the contract an intention benefit third Co.], Ins. Pa. 70 A.2d Spires supra [364 Hanover Fire [v. unless, 828], compelling recog circumstances are so that to effectuate beneficiary’s right appropriate nition an parties, performance the intention of the and the satisfies promisee pay money beneficiary of the obligation indicate that the intends to promisee or the circumstances promised perfor the benefit of the give Liederbach], Guy Pa. 459 A.2d supra [v. [501 mance. 744], readily Appel-
Applying that standard we can conclude in the Nor does expressly lant was not mentioned contract. satisfy an performance agreement by Appellees of the However, obligation Appellants owed the Commonwealth. *8 I that the circumstances lead to the conclusion that conclude (Commonwealth) promisee, give intended to benefit increases, rate promised performance, renegotiated inmates. keep Appellant sepa- must in mind that entered into
We for the cable service under the terms rate contract were bind- agreement. agreement master The terms that they on would for their ing pay the inmates and dictated how The con- responsibility equipment. service and their and the part Appellee tract manifests an intention or Commonwealth that it is the inmates who are intended to benefit from the installation of the cable service. Appellant, although name, not specifically by mentioned certainly falls within the class of persons who are intended to benefit from contract, who, service, by subscribing for the became a part of that class. I agree
Nor do that type this is the of government contract precludes third enforcement. Here the class of persons sought to be affected was determined those per- sons contracting promisor, with the a contemplated event which was sought by the promisor. This is not a contract that provides in general for the public good, and therefore not subject enforcement, to individual provides one that for a purely public purpose, such as road Therefore, maintenance. I dissent. Pennsylvania, Appellant,
COMMONWEALTH of FOWLER, Appellee. Esdras Superior Court of
Argued Jan. 1994.
Filed June 1994.