Hartford Accident & Indemnity Company v. First Pennsylvania Bank, N.A. v. Mellon Bank (East) National Association

859 F.2d 295, 7 U.C.C. Rep. Serv. 2d (West) 1, 1988 U.S. App. LEXIS 14057, 1988 WL 105650
CourtCourt of Appeals for the First Circuit
DecidedOctober 14, 1988
Docket88-1182, 88-1338
StatusPublished
Cited by9 cases

This text of 859 F.2d 295 (Hartford Accident & Indemnity Company v. First Pennsylvania Bank, N.A. v. Mellon Bank (East) National Association) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hartford Accident & Indemnity Company v. First Pennsylvania Bank, N.A. v. Mellon Bank (East) National Association, 859 F.2d 295, 7 U.C.C. Rep. Serv. 2d (West) 1, 1988 U.S. App. LEXIS 14057, 1988 WL 105650 (1st Cir. 1988).

Opinions

[296]*296CLARKSON S. FISHER, District Judge:

This is a consolidated appeal from the district court’s entry of summary judgment imposing liability for payment of an altered check on the collecting bank in the check-cashing process. The case involves a check #76250 drawn on the account of WWF Paper Co.’s (“WWF”) account at First Pennsylvania Bank, N.A. (“First Pennsylvania”). The check, dated December 9, 1983, was for $53,263.83 and payable to Fitch, Pruyn & Company.

Jurisdiction was based on diversity of citizenship, pursuant to 28 U.S.C. § 1332, and the amount in controversy exceeds $10,000.00, exclusive of interest and costs. In either December, 1983, or January, 1984, a number of WWF’s checks were stolen from the mail, including the one here involved. Indeed, prior to the depositing of the check in question, several checks of WWF on First Pennsylvania accounts had been deposited with altered payees. In April, 1984, First Pennsylvania requested that WWF ascertain whether any outstanding checks had been stolen, in view the fact that the bank had become aware that checks had been stolen from the mails in WWF's area. On April 17, 1984, WWF placed a written stop-payment order on this particular check. That order notified First Pennsylvania of the name of the intended payee, as well as the check’s original date and number.

On December 26, 1984, the check was cashed at the Mellon Bank and deposited into the account of Anna Rosciszewski. Her name appeared on the check as a named payee above that of the original payee, Fitch, Pruyn & Company. In addition to the alteration making Rosciszewski a payee, the date of the check had been changed from December 9, 1983, to December 9, 1984. On December 26, 1984, the check was sent to First Pennsylvania, who honored it. Subsequently, on February 4, 1985, WWF notified First Pennsylvania that check #76250 had been stolen. The following day First Pennsylvania notified Mellon and requested that Mellon cover the loss pursuant to § 4-207 of the Uniform Commercial Code, as adopted by the Pennsylvania State Legislature. This request was rejected.

Subsequently, Hartford Accident and Indemnity Co. (“Hartford”) brought a subro-gation action on behalf of WWF against First Pennsylvania to recover the face amount of the check. First Pennsylvania filed a third-party action against Mellon Bank for the same purpose. Mellon cross-claimed against Hartford on the theory of common-law negligence.

Both First Pennsylvania and Mellon then filed cross-motions for summary judgment. Hartford also moved for summary judgment against First Pennsylvania. On February 16, 1988, the district court granted Hartford’s and First Pennsylvania’s motions. Mellon’s motion was denied.

Mellon then moved for reconsideration of the district court’s order. That motion was denied, and this appeal followed.1

I.

In granting summary judgment in favor of First Pennsylvania, the district court concluded that the check had been honored in good faith. Mellon contends that the district court improperly allowed First Pennsylvania to recover on the theory of breach of warranties of material alteration, under 13 Pa. C.S.A. § 4207(a)(3), which states in relevant part:

Each customer or collecting bank who obtains payment or acceptance of an item and each prior customer or collecting bank warrants to the payor bank or other payor, who, in good faith, pays or [297]*297accepts the item that ... the item has not been materially altered.

The centerpiece of the appellant’s case is that the stop-payment order issued by WWF in April, 1984, constituted an express instruction not to pay on the check and, therefore, First Pennsylvania’s subsequent payment of the check deprived it of the status of a “payor in good faith” under the law.

Under § 4-207 of the code, a payor bank may recover for breach of warranty against material alteration only if the item was paid in good faith. 13 Pa. C.S.A. § 1201 defines good faith as “honesty in fact.” This definition must be viewed subjectively; a finding of bad faith must be predicated on a showing of dishonesty. Johnson & Johnson, Inc. v. DAL Int’l Trading Co., 798 F.2d 100, 105 (3d Cir.1986); Martin Marietta Corp. v. New Jersey Nat’l Bank, 612 F.2d 745, 751 (3d Cir.1979). Likewise, mere negligence does not preclude a finding of good faith. Johnson & Johnson, Inc., supra, at 105; Martin Marietta, supra, at 751; First National Bank of St. Paul v. Trust Co. of Cobb County, 510 F.Supp. 651, 656 (N.D.Ga.1981). “The negligence of a drawee bank is not a bar to recovery on a statutory warranty provided by the Uniform Commercial Code.”

Mellon contends that, in fact, First Pennsylvania’s conduct with regard to the check and subsequent stop order goes well beyond simple negligence. Rather, the appellant maintains that the Bank’s payment in the face of a previously-issued stop order precludes any finding of good faith. In Savings Banks Trust Co. v. Federal Reserve Bank, 577 F.Supp. 964 (S.D.N.Y.1984), the court noted:

A Bank ... is considered acting in good faith, where the Bank has no notice of any stop payment order placed against the check nor of any defense of claim against it.

Id. at 966, quoting H. Barley, Brady on Bank Checks, § 8.5 at 8.5 (1983 Cumulative Supp. No. 2). Indeed the appellant suggests that First Pennsylvania needed only to have followed the instructions of its customer, check. Although we generally agree that payment over a stop order would not be in good faith, Mellon ignores two very significant undisputed facts: First, the stop order on this check had expired; second, First Pennsylvania did not pay the check until two months after the order had elapsed. Under Pennsylvania law, written stop orders expire in six months unless renewed by the customer. 13 Pa. C.S.A. § 4403. Upon its expiration, the order is ineffective and the bank may pay the check.

The appellant has placed much reliance on Savings Banks Trust Co. v. Federal Reserve Bank, supra. Therein, the district court concluded that a check paid over a stop-payment order was not paid in good faith, Id. at 966, and the Second Circuit affirmed. 738 F.2d 573 (2d Cir.1984). The parties in this case are at odds, however, over whether a valid stop order was in effect in the Savings Banks ease. Although the district court’s recitation of facts does not specifically state whether or not the stop-payment order in that case had lapsed, phrases in the court’s opinion such as “having paid Check No. 21548 over a stop-payment order from Franklin” and “it knowingly paid the check over a stop-payment order” fairly lay the matter to rest. 577 F.Supp. at 966. The decision in the Savings Banks suit, supra, is clearly premised on the payment over a valid and effective stop order. Accordingly, it is distinguishable.

As a result of the expiration of the order, First Pennsylvania cannot be said to have the actual knowledge which would deny it the status of a good-faith payor. The Code expressly provides that a stop-payment order is effective for six months. The obligations which a bank incurs as a result of its customer’s imposing a stop order on a check do not continue in perpetuity.

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859 F.2d 295, 7 U.C.C. Rep. Serv. 2d (West) 1, 1988 U.S. App. LEXIS 14057, 1988 WL 105650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hartford-accident-indemnity-company-v-first-pennsylvania-bank-na-v-ca1-1988.