*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. 459 A.2d 744 Guy v. (Sec- adopted Court the Restatement Pennsylvania Supreme ond) (1979) § of Common- 302 as the law this of Contracts rights. Section 302 third-party beneficiary wealth concerning states: and Incidental Beneficiaries

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 609 A.2d at 150. second (b). (a) (b) (a) either section subsection Subsections may intended as types define the two claimants who be any under contract. Restate- given beneficiaries third-party *5 144 (Second) (b) 302(l)(a), (1979); § Scarpitti,

ment of Contracts at 609 A.2d at 150. Here, Moore exercised his discretion and found it to Judge third-party beneficiary be to confer status to inappropriate Judge under these circumstances. prison Specifically, inmates to prisoners] standing Moore held that “state do not have contracts entered into the Commonwealth.” Scar- enforce Moore, therefore, required was not pitti, supra. Judge of the Restatement test. analyze prong second contracts, case, in pose such as the one this Government in third-party beneficiary rights difficulties the area of unique extent, because, member of the every public to some such a contract. directly indirectly intended benefit from The of Corrections enters into con- Commonwealth/Bureau food, services, etc., equipment, clothing, regulate tracts for public large its correctional facilities. The at maintain benefits from these contracts to the extent that government they ought assure that those who be incarcerated will be incarcerated, that those who are incarcerated will already all pay society. grant their debts to To members of the incarcerated, public, including those to enforce such contracts, however, government contrary would be public policy Consequently, of this Commonwealth. courts of this Commonwealth must take a more narrow view of third- beneficiary status this context and a more apply whether a third for stringent party qualifies test determine status. (Second) § The Restatement of Contracts 313 speaks pertinent contracts. Section 313 government part, pro- vides:

(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, 459 A.2d 744 when Previously, party to be a third adopted. § 302 was tracts contract, the contract must parties both beneficiary of agreement promi- intention in the that the expressed have the obligation party. was to that third sor’s further and Supreme the Court went change, Given this 366, Pa. 609 A.2d Scarpitti Weborg, 530 agreement as “intended plaintiffs the to enforce an permitted doing so implied of the contract.” party third beneficiaries the court stated: party party hold that a becomes a third

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.