Butera v. Atlantic Richfield Co.
| Decision Date | 26 June 1973 |
| Docket Number | 71-10706 |
| Citation | 63 Pa. D. & C.2d 232 |
| Parties | Butera v. Atlantic Richfield Company |
| Court | Pennsylvania Commonwealth Court |
Preliminary objections to amended complaint in assumpsit.
John C. Butera, for plaintiff.
Meyer E. Maurer and Ronald H. Israelit, for defendant.
Plaintiff filed a complaint in assumpsit on September 7, 1971, in his own right and as a member of a class against the Atlantic Richfield Company and same was served on September 27, 1971. Defendant filed preliminary objections to the complaint on October 15, 1971. The preliminary objections were briefed and argued before the court en bane on June 12, 1972. At that time, plaintiff expressed a willingness to file an amended complaint and did so on July 6, 1972. On this original submission of the case to the court, this left only for consideration defendant's demurrer. On July 24, 1972, defendant filed preliminary objections to the amended complaint. These encompassed both a motion for a more specific pleading as well as a demurrer. These were submitted to the court for disposition on additional briefs only.
Plaintiff has brought a class action under the Goods and Services Installment Sales Act of October 28, 1966, Spec. Sess., P. L. 55, 69 PS § 1101-2303, seeking to recover finance charges billed and collected by ARCO from their credit card holders that were in excess of the maximum allowed by such act, viz., 11/4 percent per month or 15 percent per year, as well as reasonable attorneys' fees and costs.
Plaintiff brings the action as a credit card holder of ARCO and a member of the class of ARCO credit card holders in Pennsylvania. There are three reasons why the complaint must be dismissed as a class action. The first reason is that plaintiff does not allege that all ARCO credit card holders in Pennsylvania were billed for finance charges. Obviously, some ARCO credit card holders paid their bills in full at all times and made no use of the installment sales agreement. The second reason is that the complaint does not allege that the ARCO credit card holders bought the goods primarily for family, personal or household purposes as required by 69 PS § 1201(1)! " 'Goods' means tangible chattels bought for use primarily for personal, family, or household purposes." Businesses, large and small, use credit cards to obtain consumer goods and services. Plaintiff's complaint does not differentiate between business users of ARCO credit cards and personal users of ARCO credit cards. Only ARCO credit card holders, who purchase for family or personal use, are protected by the Goods and Services Installment Sales Act. The third reason that a class action will not lie in this case is that the class defined in the complaint includes all Pennsylvania ARCO credit card holders. Section 2205 of the act provides that:
" An action on a contract under the provisions of this act shall be commenced in the county in which the contract was in fact signed by the buyer, in the county in which the buyer resided at the time the contract was entered into, in the county in which the buyer resides at the commencement of the action, or in the county in which the goods purchased pursuant to such contract have been so affixed to real property as to become a part of such real property."
Plaintiff argues that this provision should not apply in order to avoid a multiplicity of suits in the various judicial districts of the Commonwealth. However, the Supreme Court of Pennsylvania stated in Era Co. v. Pgh. Consol. Coal Co., 355 Pa. 219 (1946) on page 220:
" 'Where a remedy or method of procedure is provided by an Act, its provisions shall be strictly pursued and exclusively applied.'"
In accord, Commonwealth v. Lukens Steel Co., 402 Pa. 304 (1961). Thus venue is established for plaintiff based upon his allegation of residence within the county, but it is not established for any other person's claim which he purports to embrace in his complaint by pleading that he brings this action as a member of a class. On the other hand, if we accepted plaintiff's contention that he should be permitted to maintain this suit as a class action, then he should be barred by reason of a prior pending class action in Chester County. Filed herein is a true and correct copy of the record of Kressley v. Atlantic Richfield Co., January term, 1972, No. 30, which had been originally commenced by complaint filed August 18, 1970, in Philadelphia County, but was subsequently certified by order dated December 28, 1971, to Chester County Court of Common Pleas because Judge Bradley, of the Court of Common Pleas of Philadelphia County, concluded that venue lay in Chester County. There are presently pending for decision preliminary objections to the complaint therein. A review of the pleadings in that case clearly shows that the suit is sought to be maintained as a class action under the same act as is the instant suit. Therefore, if a class action can be maintained on the basis contended by this plaintiff, then his status as a claimant was effectively protected as a member of the class asserted by plaintiff in Chester County, and the prior pendency of that action would support a preliminary objection to the complaint based thereon under Pennsylvania Rule of Civil Procedure 1017(b)(5).
Pennsylvania Rule of Civil Procedure 2230 governs class actions in the...
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