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VIRGINIA AMENT v. PNC NATL. BANK

April 8, 1994

VIRGINIA AMENT, et al., Plaintiffs,
v.
PNC NATIONAL BANK, a national bank, Defendant. SUZANNE CAPLAN, individually, and on behalf of all others similarly situated, Plaintiffs, v. MELLON BANK (DE), N.A., Defendant. SARA J. SZYDLIK and DONALD R. SZYDLIK, for themselves and on behalf of all others similarly situated, Plaintiffs, v. FIRST OMNI BANK, N.A., Defendant. BARBARA S. THOMPSON, et al., Plaintiffs, v. MARYLAND BANK, a national bank, Defendant. KATHLEEN A. DEFFNER, et al., Plaintiffs, v. CORESTATES BANK OF DELAWARE, N.A., a national bank, and HOUSEHOLD BANK, a federal savings bank, Defendants. DAVID A. THOMPKINS, individually and on behalf of all other similarly situated, Plaintiff, v. AMERICAN GENERAL FINANCIAL CENTER, Defendant. DAVID A. TOMPKINS, et al., Plaintiffs, v. THE CHASE MANHATTAN BANK, (USA), a Delaware chartered Bank, Defendant. DONALD R. SZYDLIK, individually and on behalf of all others similarly situated, Plaintiff, v. ASSOCIATES NATIONAL BANK, (Delaware), Defendant. BARBARA BARTLAM, individually and on behalf of all others similarly situated, Plaintiff, v. BANK OF AMERICA NT&SA, a national banking association, Defendant. I. ORIN SPELLMAN, on behalf of himself and all others similarly situated, Plaintiff, v. MERIDIAN BANK, (DELAWARE), and its successor in interest Mellon Bank (DE), Defendants. ERIC A. GOEHL, Plaintiff, v. MELLON BANK (DE), Defendant.



The opinion of the court was delivered by: MAURICE B. COHILL, JR.

 COHILL, D.J.

 These eleven consumer class actions were removed from the Court of Common Pleas for Allegheny County and are brought by various plaintiffs on behalf of all residents of Pennsylvania who are or have been holders of a VISA or Mastercard credit card issued by the defendant banks. The actions have not been certified as class actions. Presently before the Court are numerous motions filed on behalf of the defendants for judgment on the pleadings, to dismiss, and for summary judgment.

 I. Background

 The basic facts are not in dispute. Plaintiffs are cardholders who seek refunds of all annual fees and penalty charges, including late charges, returned check charges, and over credit limit charges, assessed or collected by defendants allegedly in direct violation of Pennsylvania law.

 By order dated December 29, 1992, this Court held that there was "complete pre-emption" federal question jurisdiction over plaintiffs' state law claims and that the removal was proper. We then certified the removal order for interlocutory review under 28 U.S.C. § 1292(b), and the plaintiffs subsequently requested review at Civil Action 92-244. By Order dated March 26, 1993, the United States Court of Appeals for the Third Circuit denied the request for interlocutory review. We have consolidated these cases for pretrial purposes at Ament v. PNC National Bank, Civil Action No. 92-244.

 Defendants issue credit cards to customers nationwide, pursuant to cardmember agreements, with annual percentage rates as high as 18.6%. Cardholders usually must pay an annual fee, and may incur late payment charges if a certain minimum payment is not paid on time. The accounts also have checking account features; there are charges for returned checks and over-credit limit charges. Such charges are set forth in the cardmember agreements.

 Plaintiffs allege that by contracting to charge, charging and collecting annual fees, late payment charges, returned check charges and over-credit limit charges, defendants have violated the Pennsylvania Goods and Services Installment Sales Act (the "Sales Act"), 69 Pa. Cons. Stat. Ann. § 1101 et seq., the Pennsylvania Banking Code of 1965, 7 Pa. Cons. Stat. Ann. § 101 et seq., and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. Cons. Stat. Ann. § 201-1 et seq. The Sales Act limits banks issuing credit cards to periodic interest at 18% per year. The other Pennsylvania statutes have similar restrictions.

 Defendants contend that Section 85 of the National Bank Act, 12 U.S.C. § 85 (1990) and Section 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 ("DIDA"), 12 U.S.C. § 1831(d) authorize the defendants' credit card fees and thereby preempt plaintiffs' state law claims. Defendants are PNC National Bank ("PNC"), Mellon Bank (DE) N.S. ("Mellon"), First Omni Bank, N.S. ("First Omni"), Maryland Bank, American General Financial Center ("American General"), CoreStates Bank of Delaware, N.A. ("Corestates"), Household Bank, The Chase Manhattan Bank (USA) ("Chase"), Associates National Bank (Delaware) ("Associates"), and Meridian Bank (Delaware).

 II. Discussion

 Most of the movant defendants are incorporated in Delaware, and most are national banks subject to the National Bank Act, 12 U.S.C. § 85. Defendant Chase was a national bank and a state bank at different times during the relevant period, and therefore bases its argument for its preemption motion on both the National Bank Act and DIDA. Section 521 of DIDA mirrors section 85 of the National Bank Act, and governs FDIC-insured State banks. Despite the varied locations of the defendants, the issues presented are largely identical, with the exception that the three cases against the lenders located in California, namely Household Bank, Bank of America and Associates National Bank of Delaware (California) present additional issues which will be addressed separately. Separate briefs have been submitted by the various bank defendants but are nearly the same, and are best represented, per consent of the defendants, by the Supplemental Memorandum in support of Dispositive Motions Filed by CoreStates, First Omni, MBNA, Mellon, PNC and Chase (hereinafter "Mellon Brief").

 Defendants argue that the usury provision of the National Bank Act authorizes national banks to charge any "interest at the rates allowed by the laws of the state . . . where the national bank is located," and to charge those home-state rates to its customers throughout the country. 12 U.S.C. § 85; Marquette Nat'l Bank v. First of Omaha Serv. Corp., 439 U.S. 299, 58 L. Ed. 2d 534, 99 S. Ct. 540 (1978). They argue that the courts and banking regulators have held that Section 85 exclusively limits lending charges by national banks, that the charges at issue are permissible in the states where the banks are located, and that therefore the defendants may contract to receive these charges from their customers in any other state. Mellon Brief at 3.

 Plaintiffs concede that the defendants' charges are legal within their respective states. See Del. Code Ann. tit. 5, § 945. They argue that the pending dispositive motions are improper because: (1) we lack subject matter jurisdiction and should remand the cases to the Court of Common Pleas; (2) the late charges, returned check charges and over-limit charges which are the subject of this action are illegal under Pennsylvania law; (3) the National Bank Act and DIDA authorize non-Pennsylvania banks to export only "interest" charges to Pennsylvania; and (4) the penalty charges at issue and the annual fees are not "interest" within the meaning of the National Bank Act, and therefore, cannot be imposed on Pennsylvania residents. Pls.' Brief in Opp. to Defs.' Dispositive Motions ("Pls.' Brief") at 2.

 We believe that the strong weight of the legal authority on this issue supports our holding that the defendants' motions should be granted. Plaintiffs almost concede this. "All parties agree that recent post-1992 case law supports Defendants' position." Pls.'s Brief at 7. Plaintiffs ask that we ignore recent developments and inspect the case law prior to 1992, and that, upon doing so, we will deny defendants' motions because at common law, penalty charges were not the same as "interest" because they were not required by the lender as compensation for the loan, and that single sum late fees were not usurious because they were not "interest." Pls.' Brief at 7-9. Essentially, plaintiffs are ...


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