Chew-Bittel Associates, Inc. v. Crusader Savings Bank

635 A.2d 653, 430 Pa. Super. 631, 22 U.C.C. Rep. Serv. 2d (West) 1099, 1993 Pa. Super. LEXIS 4173
CourtSuperior Court of Pennsylvania
DecidedDecember 28, 1993
StatusPublished
Cited by7 cases

This text of 635 A.2d 653 (Chew-Bittel Associates, Inc. v. Crusader Savings Bank) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chew-Bittel Associates, Inc. v. Crusader Savings Bank, 635 A.2d 653, 430 Pa. Super. 631, 22 U.C.C. Rep. Serv. 2d (West) 1099, 1993 Pa. Super. LEXIS 4173 (Pa. Ct. App. 1993).

Opinion

WIEAND, Judge:

Chew-Bittle Associates, Inc. brought an action against Crusader Savings Bank, contending that the bank, after payment, had improperly reclaimed the proceeds of a check on which the plaintiff had been named as payee. The trial court sustained preliminary objections in the nature of a demurrer to the complaint, holding that payment of the check could properly be revoked because of an inaccurate endorsement. After careful review and for the reasons which follow, we reverse.

When considering a trial court’s order granting preliminary objections in the nature of demurrer, we accept as true all well pleaded facts contained in the complaint as well as any reasonable inferences that can be drawn therefrom. See: AM/PM Franchise Assoc. v. Atlantic Richfield Co., 373 Pa.Super. 572, 542 A.2d 90 (1983), modified on other grounds, 526 Pa. 110, 584 A.2d 915 (1990); Guy v. Liederbach, 279 Pa.Super. 543, 421 A.2d 333 (1980), modified on other grounds, 501 Pa. 47, 459 A.2d 744 (1982). Preliminary objections may be sustained only where it is clear that the law will not permit a recovery on the facts pleaded. See: Cianfrani v. Commonwealth, State Emp. Retirement Bd., 505 Pa. 294, 479 A.2d 468 (1984); Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976).

In October, 1991, W. Kirk Wycoff and Debra Jean Wycoff, husband and wife, hired Chew-Bittle Associates, Inc. (Chew-Bittle) to perform alterations to their real estate. The construction contract, including several oral modifications, obligated the Wycoffs to pay Chew-Bittle $37,238.64. After Chew-Bittle had completed the construction, a balance of $14,582.64 remained unpaid. In Jan[655]*655uary, 1992, the Wycoffs tendered a check for $9,000.00, made payable to “Chew Bittle,” in full satisfaction of the unpaid balance. Chew-Bittle promptly endorsed the cheek as “Chew-Bittle Associates” and, on January 14, 1992, deposited it into its account at the Riehboro, Pennsylvania, Branch of Cores-tates Bank. The check was presented to the drawee bank, Crusader Savings Bank, which accepted the check and paid it.

Several weeks later, when the Wycoffs received the cancelled check, they observed that Chew-Bittle had crossed out a notation that the check was in Ml satisfaction of the balance due and had noted its reservation of rights under the original contract. Wycoff was a member of the board of Crusader Bank, and he demanded that the bank return the check. On March 2, 1992, Crusader Bank returned the check to Chew-Bittle with a notation “Endorsement not as Drawn” and reclaimed the funds it had previously paid to Corestates Bank. Chew-Bittle thereafter filed suit against the Wycoffs under the construction contract and against Crusader Bank for improperly reclaiming the proceeds of the check. The trial court sustained Crusader Bank’s preliminary objections in the nature of a demurrer to the complaint, and Chew-Bittle appealed.

It is correct, as appellee argues, that the payee of a check has no standing to sue the drawee for improper dishonor of a check. 13 Pa.C.S.A. § 4402 (main volume) (amended and recodified July 9, 1992, effective in one year). See: C & K Petroleum Products, Inc. v. Equibank, 839 F.2d 188 (3rd Cir.1988). The return of a check for lack of a proper endorsement, however, is not a dishonor. 13 Pa.C.S.A. § 3507(c) (main volume) (repealed July 9, 1992, effective in one year). As other provisions of the Uniform Commercial Code make clear, Chew-Bittle, as holder and payee of the check which the bank had honored and paid, could maintain this action when the bank subsequently revoked its acceptance of the check and reclaimed the proceeds of the check.

The trial court, in dismissing the action, held that the drawee bank, in an “abundance of caution,” could properly return the check because it had been made payable to “Chew Bittle” and the endorsement had been by “Chew-Bittle Associates.” In so doing, the trial court overlooked the fact that Crusader Bank had honored the check and paid it and had reclaimed the funds more than two months later. Therefore, the trial court neglected to consider the potential liability of the drawee bank under 13 Pa.C.S. § 4302 (main volume) (amended and recodified July 9, 1992, effective in one year). This section of the Uniform Commercial Code, as it existed in January, 1992, provided as follows:

§ 4302. Responsibility of payor bank for late return of item
In the absence of a valid defense such as breach of a presentment warranty (section 4207(a)), settlement effected or the like, if an item is presented on and received by a payor bank the bank is accountable for the amount of:
(1) a demand item other than a documentary draft whether properly payable or not if the bank, in any ease where it is not also the depositary bank, retains the item beyond midnight of the banking day of receipt without settling for it or, regardless of whether it is also the depositary bank, does not pay or return the item or send notice of dishonor until after its midnight deadline; or
(2) any other properly payable item unless within the time allowed for acceptance or payment of that item the bank either accepts or pays the item or returns it and accompanying documents.1

Under this section, a payor bank may become liable to the payee of a check for the face amount of the check, plus any actual damages suffered, if the bank fails to return or pay the check before its midnight deadline. See, e.g.: Chrysler Credit Corp. v. First Nat. Bank and Trust Co. of Washington, 746 F.2d 200 (3rd Cir.1984); Go-Tane Service Stations, Inc. v. Sharp, 78 Ill.App.3d 785, 33 Ill.Dec. 916, 397 N.E.2d 249 (1979); Blake v. Woodford Bank & Trust Co., 555 S.W.2d 589 (Ky.App.1977); Farmers Cooperative Livestock Market, Inc. v. Second Nat. [656]*656Bank of London, 427 S.W.2d 247 (Ky.App.1968). This is confirmed by the provisions of 13 Pa.C.S. § 4301 (main volume) (amended and recodified July 9, 1992, effective in one year), where it is provided that a bank may revoke settlement of a check only if it has not finally paid the item and its midnight deadline has not yet passed.

A holder of a check, not having heard from the bank within a reasonable time, must be permitted to assume that the cheek has been paid.

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635 A.2d 653, 430 Pa. Super. 631, 22 U.C.C. Rep. Serv. 2d (West) 1099, 1993 Pa. Super. LEXIS 4173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chew-bittel-associates-inc-v-crusader-savings-bank-pasuperct-1993.