Morgan v. First Pennsylvania Bank

HESTER, Judge,

dissenting:

I respectfully dissent both from the majority’s discussion of the legal consequences of Ms. Weand’s actions in 1971 and from its disposition of the issues presented for our review.

The case presented to us involves Ms. Weand’s rights in relation to the bank where she established a joint savings account. We are not deciding Ms. Weand’s rights in relation to her sister, whose name was placed on the account and who converted the funds in the account. The majority’s background discussion contains cases which solely discuss the latter relationship. Our focus should be on the standard of care owed by a bank to a depositor and not on whether Ms. Weand made an inter vivos gift to her sister. Here, the depositor alleges that the bank owes her money due to the fact that the bank acted negligently in handling her funds by violating its regulations. Since I agree with appellant that parol evidence was incorrectly admitted to vary the terms of the regulations, I believe appellant is entitled to a new trial.

Appellant, Ms. Weand’s guardian, instituted this action alleging that appellee was negligent in transferring an account balance due to the fact that it had violated its written regulations providing that: 1) the passbook evidencing the account must be presented with each withdrawal; and 2) if a passbook is lost, no withdrawals are permitted for thirty days and only after bond is posted.

Following the adverse decision at trial, appellant filed the following post-trial motions which were denied March 24, 1987:

Plaintiff hereby moves for a new trial and for judgment n.o.v. in the alternative for the following reasons:
*4191. The verdict was against the law, against the evidence and against the weight of the evidence.
2. The court erred in admitting the signature card offered in evidence by the defendant.
3. The court erred in permitting the defendant’s witness to offer evidence to vary the terms of the defendant’s written regulations.

Only points two and three are preserved for our review by these motions, Pa.R.Civ.P. 227.1(b)(2); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). I agree with appellant’s third contention and believe she is entitled to a new trial on that basis.

The trial court permitted one of appellee’s bank managers to testify in violation of the parol evidence rule. The testimony was admitted to prove that appellee had not violated its regulations by the procedure followed in this case. There are fourteen numbered passbook regulations, which provide in relevant part (emphasis added):

THE FIRST PENNSYLVANIA BANKING AND TRUST COMPANY
SAVINGS PASSBOOK ACCOUNT
RULES AND REGULATIONS
2. All deposits in this savings passbook account (“account”) in The First Pennsylvania Banking and Trust Company (“Bank”) are received subject to the following rules and regulations.
3. The passbook evidencing the account must be presented with each deposit and withdrawal.
4. Withdrawals from the account may be made at any office of the Bank upon presentation of identification satisfactory to the Bank. Bank reserves the right to close the account by payment of the balance and all interest accrued thereon to the depositor____
*4209. In case the passbook is lost, destroyed, or stolen, immediate notice thereof must be given in writing to Bank. After the expiration of one month from the time the Bank receives such notice, a new passbook bearing a new number will be issued to replace the lost or destroyed passbook, provided Bank is furnished with a satisfactory bond of indemnity.

One of appellee’s bank managers was permitted to testify, over objection, that notwithstanding regulations three and nine, the regulations were not violated in this case. He testified that when savings accounts are closed entirely, only regulation four applies. Thus, even though the passbook was missing, appellee closed the account in conformity with its regulations since a bank employee verified Bruce’s signature on the letter with the signature on the card. This is satisfactory identification under regulation four.

Appellee argues that the testimony was permissible under the parol evidence rule since the regulations are ambiguous in that it appears from regulation four that withdrawals can be made without presentation of the passbook if the withdrawing party satisfactorily identifies himself. Appellee also argues that regulations nine and three do not apply to “closing” accounts, only to “withdrawals” from accounts. Thus, appellee permits a depositor to withdraw the entire account balance if the passbook is lost, notwithstanding regulations nine and three. It concedes that it would not permit the same person to withdraw a single dollar from the account if the passbook were lost since regulations nine and three would then apply.

I agree with appellant that these arguments are absurd and that the regulations are clearly unambiguous. Regulation two states that all the rules and regulations apply. Regulation three is therefore supplemented, not supplanted, by regulation four. Together, they require that both a passbook and identification be presented before withdrawals, regardless of amount, are permitted. Otherwise, regulation three would be meaningless. Regulation nine, together with regulation three, permit no withdrawals, re*421gardless of amount, from the account for thirty days if a passbook is lost. Withdrawal of the entire account balance is a withdrawal, whatever else appellee may choose to call it.

The law is clear. A writing that is not reasonably capable of two different interpretations is not ambiguous and cannot be varied by parol. Merriam v. Cedarbrook Realty, Inc., 266 Pa.Super. 252, 404 A.2d 398 (1978). In interpreting the intent of parties in a written contract, when the words are clear and unambiguous, the intent is to be determined only from the express language of the agreement. Ormond Realty v. Ninnis, 341 Pa.Super. 101, 491 A.2d 169 (1985); Woytek v. Benjamin Coal Co., 300 Pa.Super. 397, 446 A.2d 914 (1982). In addition, a written agreement will be construed against the party who prepared it. Ormond Realty v. Ninnis, supra; Central Transportation v. Board of Assessment Appeals, 490 Pa. 486, 417 A.2d 144 (1980).

In this case, Bruce wrote that the passbook was lost. She did not present it. Regulations three and nine applied. A bank employee should not have been permitted to testify that they did not. Since the trial court permitted testimony in violation of the parol evidence rule, I believe that appellant is entitled to a new trial.

However, there is no case holding that a bank is automatically liable to its depositor for breaching its regulations. The converse is true in that a bank is not liable to a depositor if it has acted in conformity with its established, prudent procedure. Layman v. Western Savings Bank, 302 Pa.Super. 433, 448 A.2d 1119 (1982). In Layman, we held that a bank is not responsible to its depositor if it has exercised ordinary care, and we held that ordinary care is established where the bank has complied with its own regulations.

Parenthetically, however, I note that there was very credible evidence that appellee did not follow established bank procedure in this case. From testimony at trial, it appears that when a passbook for a joint account is lost, appellee normally requires that both signatories to the *422account present themselves at an office with identification. Once both signatories sign a lost passbook form, the bank releases the funds.

This procedure is logical, prudent and requires minimal effort by the bank.

This credible testimony conflicts with the bank manager’s testimony that normal bank procedure was followed in this case. Here, a bank teller, without a simple telephone inquiry to Ms. Weand (the person whose money was involved and who would possess the passbook) paid a passbook balance to Ms. Weand’s sister, whose name had been added to the account. This action was taken on the basis of mail correspondence from the sister whom the teller had never seen. The letter was not witnessed or notarized and was not accompanied by any identification. The letter specifically stated that the passbook was “lost,” and the money was sent even though the bank has a regulation requiring a passbook for withdrawals. I find incredible that appellee normally operates in such a careless manner.

Ms. Weand deposited her money with appellee and is entitled to expect some degree of care with respect to her funds from the bank. If appellee would have been dealing with its own money, would it have acted similarly?

For the reasons enumerated above, I respectfully dissent.