Delaware County v. First Union Corp.

CONCURRING AND DISSENTING OPINION BY

Judge COLINS.

Although I agree with the majority’s analysis regarding the application of the doctrine of nullum tempus occurrit regí, I must respectfully dissent from the majority’s conclusion that the County may be entitled to damages for the Banks’ failure to return the interest income that accrued during the five-year period of First Union’s admittedly improper retention of sinking fund money.

As the majority notes, Section 1301.1 of the Unclaimed Property Act, Act of April 9, 1929, P.L. 343, as amended, 72 P.S. § 1301.1, defines the term “property” to “include all ... personal property, tangible or intangible, all legal and equitable interests therein, together with any income, accretions, or profits thereof and thereon, and all other rights to property, subject to all legal demands on the same.” The majority concludes that this provision limits the amount that the Banks were required to escheat to the amount of outstanding bondholders obligations, i.e., none of the interest that has accrued on the bondholders’ obligation, but only the amount due to bondholders under the terms of the bond.

*1265I would conclude that, based upon the language of the Act, once the duty to escheat arose, the Banks had the duty to include in that escheatment not only the amount owed to the original bondholders’ under the terms of the bond, but also the interest that has accrued. This result comports not only with the straightforward language of the statute, but also with the long-standing principle the majority rejects — that interest follows principal. While I agree that the New Jersey Superi- or Court’s decision in State of New Jersey v. Elsinore Shore Associates, 249 N.J.Super. 403, 592 A.2d 604 (1991) contains factual distinctions, I am not convinced that the distinction warrants rejection of the principle. Our Supreme Court has confirmed the application of the principle in considering a claim by a decedent’s sister that the decedent intended to make a gift, rather than a loan, to his sister of a certificate of deposit. The Court, noting that the decedent had taken sole possession of the interest that had accrued on the certificate, concluded that the claimant had failed to present evidence of the decedent’s donative intent, because “[i]t is fundamental that the interest follows the principal in ownership.” Lessner v. Rubinson, 527 Pa. 393, 401, 592 A.2d 678, 682 (1991).

I understand the majority’s position that interest should only follow the core property, i.e., the contractual obligation; however, I believe that the intent of the drafters of the Unclaimed Property Act was to ensure that property belonging to another, including interest or accretions that have become connected to the property should be escheated with the property. In the case of these missing bondholders, whose unclaimed property is the source of the interest or accretion, they (or their heirs) have lost the potential use of their money, albeit for reasons for which they are responsible. Had they (or their heirs) claimed their property at an earlier time, they, rather than the County, could have reaped the reward of additional income from reinvestment. I read no convincing reason why, under the present circumstances and the operation of the Unclaimed Property Act, the County should be in a better position than the bondholders to glean a benefit from another’s use of their unclaimed property.1

For these reasons, I would reverse the trial court’s denial of judgment on the pleadings.

President Judge LEADBETTER and Judge LEAVITT join in this opinion.

. I also question whether the County has the right to pursue this action under the Debt Act. Section 1301.14 of the Unclaimed Property Act relieves persons who deliver unclaimed property to the Secretary from liability for the "safekeeping” of such property and “for any claim which then exists or which thereafter may arise or be made with respect to such property.” 72 P.S. § 1301.14. I believe that the County’s sole recourse, even it has a valid claim for the interest income, is to seek recovery under the Unclaimed Property Act.