Witco Corp. v. Herzog Bros. Trucking, Inc.
Witco Corp. v. Herzog Bros. Trucking, Inc.
Dissenting Opinion
dissenting.
I do not agree that pursuant to Pa.R.C.P. 3101(b), a garnishee bank obtains “possession” of a defendant’s
I begin by noting that in this matter, the United States Court of Appeals for the Third Circuit has asked this Court to answer three complex questions of law concerning the interpretation of our rules of civil procedure and this Commonwealth’s public policy. In answering the questions raised by. the Court of Appeals for the Third Circuit, the Majority places great weight and emphasis on the facts of this case, particular
By answering the Third Circuit’s far reaching legal questions based primarily on the facts of the case sub judice, in my view, the Majority simply has sought to do equity. The answers to these questions, however, require an analysis driven by the law, not by the facts. Consequently, a dispassionate legal analysis must answer these important questions of first impression.
Turning to the rules of construction that govern the interpretation of the Pennsylvania Rules of Civil Procedure, “[t]he object of all interpretation and construction of rules is to ascertain and effectuate the intention of the Supreme Court.” Pa.R.C.P. 127(a). Furthermore, “[wjords and phrases shall be construed according to rules of grammar and according to their common and approved usage; but technical words and phrases ... [that] have acquired a peculiar and appropriate meaning or as are expressly defined by rule shall be construed according to such peculiar and appropriate or express meaning or definition.” Pa.R.C.P. 103(a). Additionally, when as
Pennsylvania Rule of Civil Procedure 3101(b)(2) states that a garnishee “shall be deemed to have possession of property of the defendant if the [garnishee] ... has property of the defendant in his or her custody, possession or control.” However, neither Rule 3101(b)(2) or any other rule of civil procedure defines “possession.” In construing “possession” as it is utilized in this context, the Majority defines the word as” [t]he fact of having or holding property in one’s power; the exercise of dominion over property.” Majority Opinion at 633, 863 A.2d at 446 (citing Black’s Law Dictionary (8th Ed. 2004)). I find this definition to be adequate in regard to garnishment law. I, however, disagree with the Majority that, under this definition, a bank possesses the property of a purchaser by engaging in the sale of a cashier’s check.
Pursuant to 13 Pa.C.S. § 3104, a “cashier’s check” is defined as “a draft with respect to which the drawer and drawee are the same bank or branches of the same bank.” This simply means that when a customer purchases a cashier’s check, the issuing bank draws the check from the bank’s own account. As such, a cashier’s check is the bank’s obligation rather than the purchaser’s personal obligation. Douglas J. Landy, Failure of Consideration is Not a Defense to a Bank’s Refusal to Pay a Cashier’s Check: Revised UCC § 3-411(c), 115 Banking L.J. 92,102 (February 1998).
Except in limited circumstances, see, e.g., 13 Pa.C.S. § 3411(c), the bank “is obliged to pay the [cashier’s check] according to its terms at the time it was issued or, if not issued, at the time it first came into possession of a holder, or if the issuer signed an incomplete instrument, according to its terms when completed____” 13 Pa.C.S. § 3412. In fact, if a bank wrongfully refuses to pay a cashier’s check that it issued, then the bank exposes itself to liability in the form of expenses, loss of interest, and even consequential damages. 13
This type of transaction is akin to other types of sales transactions where purchasers relinquish ownership of funds in return for an interest in a good. See, 13 Pa.C.S. § 1201 (providing for the definitions of “purchaser” and “purchase,” as the words are used in the various Articles of the Uniform Commercial Code).
Contrary to this view, the Majority proposes that when National City came into physical possession of Herzog Brother’s cash and checks, “[t]he Bank then had the power to control Herzog Brother’s access to those funds and the manner in which the funds were disbursed.” Majority Op. at 633, 863 A.2d at 446. This simply is not the case. Under the
Lastly, the Third Circuit asks whether the public policy underlying Pennsylvania garnishment law requires a garnishee bank to refrain from engaging in transactions with a judgment debtor when doing so permits the judgment debtor to avoid the garnishment of its assets, particularly when engaging in such transactions is to the financial benefit of the bank. This Court has stated that “[pjublic policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest.” Hall v. Amica Mutual Insurance Co., 538 Pa. 337, 648 A.2d 755, 760 (1994). The laws of this Commonwealth allow for the
For all the reasons above, I dissent.
. Pennsylvania Rule of Civil Procedure 3101(a) defines “defendant” as “any party against whom a judgment has been entered.”
. Section 1201(a) defines "purchaser" as “[a] person who takes a purchase!)]" and Section 1201(b) defines “purchase,” in pertinent part, as "[(Includes taking by sale ... or any other voluntary transaction creating an interest in the property.”
. The fact that National City did not deposit the funds Herzog Brothers conveyed to the bank into an account managed by Herzog Brothers prior to the bank issuing the cashier's checks is precisely what distinguishes the legal analysis employed by the Eighth Circuit in In re Southwestern Glass Co., 332 F.3d 513 (8th Cir. 2003) from the proper legal analysis that the matter sub judice requires. Witco and the Majority rely on Southwestern Glass for the proposition that no matter how briefly a garnishee bank possesses a judgment debtor's funds, the instant the funds come into the bank’s possession, the bank is obligated to hold the funds for the judgment creditor. As the Majority relates, in Southwestern Glass, the garnishee bank extended a line of credit to the judgment debtor and allowed the judgment debtor to draw checks on this line of credit. Id. at 517. However, this arrangement required the funds to flow through an account managed by the judgment debtor. Id. While the funds remained in the line of credit, they were not subject to garnishment; however, the instant that the funds were transferred into the judgment debtor's account, the judgment debtor obtained an ownership interest in the funds. Id. at 518. Although the transferred funds only briefly passed through the judgment debtor's account, the Eighth Circuit determined that for the brief time that the funds were in the
In the matter sub judice, the funds conveyed by Herzog Brothers were never deposited into a personal account. Rather, the bank issued the cashier's checks immediately upon receipt of Herzog Brothers' funds. Therefore, the bank never possessed these funds as contemplated by Pa.R.C.P. 3101(b), and the funds, consequently, could not be captured by Witco's writ of garnishment.
Opinion of the Court
OPINION OF THE COURT
This matter comes before this Court on. a Petition for Certification of Questions of Law from the United States Court of Appeals for the Third Circuit. This Court granted the petition, which raises three questions: (1) whether a drawee bank obtains “possession” of any property, as defined by Pa.R.C.P. 3101, of a customer who physically provides the drawee bank’s teller with cash and checks, in exchange for the issuance of a bank cashier’s check, when those funds are never deposited into the customer’s account at the drawee bank; (2) whether a garnishee bank, which receives “possession” of the property of a judgment debtor after being served with a writ
The salient facts are undisputed. Appellee, Herzog Brothers Trucking Inc. (Herzog Brothers), is a wholesale distributor of motor fuel products. On June 5, 1996, in an unrelated action, appellant, Witco Corporation (Witco), obtained a default judgment against Herzog Brothers in the amount of $509,216.52 plus costs in the United States District Court for the Western District of Pennsylvania. On July 5, 1996, in an effort to collect the judgment, Witco served a writ of execution upon National City Bank of Pennsylvania (Bank) as potential garnishee. In response to interrogatories from Witco, the Bank indicated that it held and had frozen $1,379.52 in a checking account belonging to Herzog Brothers.
Witco deposed Gary Herzog, Herzog Brother’s president and sole shareholder, who testified that subsequent to the service of the writ of execution upon the Bank but before entry of judgment against the Bank, a period spanning from July 5,1996 to August 11,1997, Herzog Brothers purchased at least 131 cashiers’ checks from the Bank, using personal checks and cash. As to each purchase of a cashier’s check, Herzog presented his personal checks or cash to the Bank at the teller windows whereupon the Bank would issue “official checks” drawn on the Bank and payable to various designees specified by Herzog. The aggregate value of these checks exceeds $6,000,000. During the same time period, the Bank made fourteen payments to itself totaling $22,718.86 from
Following Gary Herzog’s deposition, Witco filed in the district court a motion to compel payment by the Bank, contending that the Bank “possessed” Herzog Brothers’ funds and that the Bank had a duty to hold those funds for Witco. Finding that Pennsylvania law dictates that interrogatories in aid of execution be treated as though they were a complaint and the garnishee’s answers to the interrogatories as an answer to the complaint (Pa.R.C.P. 3145(a)), and that the parties had conducted discovery in aid of execution, the district court treated Witco’s motion and the Bank’s response as cross-motions for summary judgment, noting that the parties agreed that there existed no genuine issues of material fact. The district court then denied Witco’s motion for summary judgment and granted the Bank’s motion. Ruling on the narrow issue of whether the Bank came into possession, as that term is defined in Pa.R.C.P. 3101(b), of the Herzog Brothers’ property during the cashier’s check transactions, the district court likened the transactions to any sales transaction where the purchaser tenders full payment at the time of the sale. Because Gary Herzog never deposited his cash or personal checks in the Bank as part of the cashier’s check
The first question for this Court’s consideration is whether a drawee bank obtains “possession” of any property, as defined by Pa.R.C.P. 3101, of a customer who physically provides the drawee bank’s teller with cash and checks, in exchange for the issuance of a cashier’s check, when those funds are never deposited into the customer’s account at the drawee bank. Our inquiry necessarily begins with Rule 3101(b) which, for purposes of “enforcement of money judgments for the payment of money,” defines a garnishee as follows:
(b) Any person may be a garnishee and shall be deemed to have possession of property of the defendant if the person
(1) owes a debt to the defendant;
(2) has property of the defendant in his or her custody, possession or control; ...
(3) holds as fiduciary property in which the defendant has an interest;
(4) holds the legal title to property of the defendant whether or not in fraud of creditors; or
(5) owns or possesses real property subject to a mortgage, judgment or other lien in which [the] defendant has an interest.
Id. For purposes of this Rule, “ ‘defendant’ means any party against whom a judgment has been entered.” Id., Rule 3101(a).
The Rule does not define “possession” for purposes of garnishment, and neither the parties nor the district court cite to any authority from Pennsylvania or any other jurisdiction bearing on the issue presented here.
Rule 3101(b) unambiguously provides that a garnishee is deemed to be in possession of property of the defendant if the garnishee “has property of the defendant in his or her custody, possession or control.” Black’s Law Dictionary (8th Ed. 2004) defines possession as: “The fact of having or holding property in one’s power; the exercise of dominion over property.” Here, when Herzog Brothers purchased 131 cashiers’ checks from the Bank, the Bank came into physical possession of the personal checks and cash proffered by Gary Herzog.
Having found that the Bank indeed had possession of Herzog Brothers’ property, we turn to the second certified question—whether a garnishee bank, which receives “possession” of the property of a judgment debtor after being served with a writ of execution, has a duty under Pa.R.C.P. 3111(c) “restraining [it] from paying any debt” to that judgment debtor in exchange for that property, even if that “debt” arises during a transaction with a brief duration akin to that of a sales transaction. Rule 3111(c) states:
(c) Service of the writ upon the garnishee shall also subject the garnishee to the mandate and injunctive orders of the writ restraining the garnishee from paying any debt to or for the account of the defendant and from delivering any property of the defendant which may be attached under these rules to anyone except the sheriff or otherwise disposing thereof until further order of the court or discontinuance or termination of the attachment.
Witco argues that, by its plain language, Rule 3111(c) imposes a duty upon the garnishee to restrain from paying any debt to or on behalf of the judgment debtor, and that the duration of the transaction is irrelevant. Because “debt” is not defined in the Rules of Civil Procedure, Witco urges that “debt” be defined according to its common and approved usage. See Pa.R.C.P. 103(a). Witco then cites the Superior Court’s decision in Prevish v. Northwest Medical Center Oil City Campus, 692 A.2d 192 (Pa.Super. 1997) aff'd, 553 Pa. 73, 717 A.2d 1023 (1998) (per curiam), where that court endeav
Witco argues that, applying this logical definition of debt to the controversy at hand, upon receipt of the cash or checks from Gary Herzog, a performance obligation arose whereby the Bank was obliged to perform some act with regards to Herzog Brothers funds. In this case, the Bank fulfilled that obligation by issuing the cashiers checks. The act of issuing the cashiers checks, according to Witco, constituted the payment of a debt to Herzog Brothers, an act prohibited by Rule 3111(c). In the alternative, Witco argues that the issuance of the cashiers checks to third parties identified by Gary Herzog amounted to a payment of debts for the account of Herzog Brothers in violation of Rule 3111(c).
As to the brief duration of the transactions and the Bank’s possession of Herzog Brothers’ funds, Witco contends that duration is not a relevant factor, pointing in support to In re Southwestern Glass Co., 332 F.3d 513 (8th Cir. 2003). There, the Eighth Circuit Court of Appeals discussed the obligations of a garnishee bank after it has been served with a writ of garnishment. Subsequent to being served with a writ garnishment, the garnishee bank in that case continued to honor checks drawn on a loan manager account belonging to the judgment debtor where the account maintained a zero balance and was funded through a line of credit the debtor maintained with the bank. Whenever checks drawn on the account were presented to the bank, the bank immediately funded the account in the amount of the check presented and then disbursed the funds to the payee. The transfer of funds from the line of credit to the loan manager account and then
The Bank counters that Herzog Brothers’ ongoing purchases of cashier’s checks were merely over-the-counter exchanges in which the Bank served as a financial intermediary. In the Bank’s view, Gary Herzog provided the funds to the Bank’s tellers in exchange for the cashier’s checks without any intention of depositing the funds or of giving the funds to the Bank to hold. Nor did Herzog Brothers intend that the funds be used to pay a debt on its behalf. The Bank argues that Witco’s characterization of these exchanges of funds for cashier’s check as giving rise to a debt is untenable and not supported by authority. Further, the Bank submits that this characterization would turn every purchase and sale transaction into a debt subject to garnishment. The Bank also argues that, had it acted as Witco claims it should have by seizing the cash and checks Gary Herzog presented to the Bank’s tellers and turning those funds over to Witco, its conduct would have been actionable, unethical, legally and constitutionally questionable and commercially unreasonable. Finally, the Bank distinguishes Southwestern Glass on the basis that the funds in question here were never actually deposited in an account belonging to Herzog Brothers.
We do not accept the Bank’s characterization of the cashier’s check transactions with its judgment debtor customer in this case as akin to other innocent purchases and sales transactions. What obviously separates the situation sub judice from other everyday sales transactions is that the Bank maintained a banking relationship with Herzog Brothers and had been served with a writ of execution precisely because of
We should note, however, that we do not accept Witco’s broad argument that the presentation of the cash and checks to the Bank’s tellers gave rise to a debt owed by the Bank to Herzog Brothers. This strained interpretation of the word “debt” could conceivably capture any wholesale or retail sales transaction. In any case, there is no need to concern ourselves with the issue because it seems crystal clear that, when the Bank converted Herzog Brothers’ cash and checks into cashier’s checks and made those cashier’s checks payable to third parties or to the Bank itself at Herzog Brothers’ direction, the Bank was paying debts on account of Herzog Brothers. The Bank’s conduct implicates and runs afoul of Rule 3111(c). This is particularly true in the case of checks used by Herzog Brothers to fund the cashier’s checks where the checks were drawn on foreign banks. In those instances, the Bank issued the cashier’s checks with no knowledge of whether sufficient funds existed to cover the checks in the foreign banks; therefore, the Bank was essentially advancing bank funds to Herzog Brothers and then using those funds to pay debts on behalf of Herzog Brothers.
Turning to the third certified question, this Court is asked to consider whether the public policy underlying Pennsylvania garnishment law requires a garnishee bank, on notice of a judgment order against a depositor by a Writ of Execution and whose accounts are thereby held, to refrain from engaging in transactions with that judgment debtor which permit the judgment debtor to avoid the garnishment of its assets, and thereby the debtor’s obligation to pay the judgment creditor, to the financial benefit of the garnishee bank.
The Bank argues that Pennsylvania garnishment law does not require a financial institution to join in a judgment creditor’s hunt for assets or in the creditor’s efforts to drive a judgment debtor out of business.
Witco responds that public policy should prohibit actions which, whether so intended or not, appear designed to avoid a valid writ of execution. Witco argues that the Bank’s conduct clearly violated both the letter and spirit of the garnishment rules, ultimately permitting Herzog Brothers to avoid execution of the lawfully obtained judgment against it. The Bank here clearly provided Herzog Brothers with all the benefits of a bank account while assisting Herzog Brothers in avoiding the seizure of their assets, which was required pursuant to the writ of execution. Witco asserts that if this Court permits this type of activity in garnishment cases, the ability of creditors to collect judgments will be severely diminished. Witco is correct.
The Bank in this case was not a convenience store engaged in the innocent sale of money orders to a walk-in customer with whom it had no prior relationship. To argue that the Bank had no more obligation to Witco than a convenience
It is essential to remember that this third question arises under the rubric of public policy. In assessing and weighing such considerations, this Court will not turn a blind eye to the obvious effects of the conduct at issue. It is plain that the Bank and Herzog Brothers engaged in an extended course of conduct that permitted Herzog Brothers to avoid garnishment of its assets. Whether it was the Bank’s and/or Herzog Brothers’ deliberate intent to subvert the writ of execution and subsequent garnishment obligation matters less than the fact that such was clearly the result. By using cashier’s checks instead of checks drawn on its own accounts, Herzog Brothers successfully processed more than $6 million dollars of its funds and used those funds to pay its obligations to creditors other than Witco without depositing one penny of those funds into its accounts with the Bank. The Bank permitted this conduct and even derived its own financial benefit, making the Bank a player in this activity, not an innocent bystander. Were this Court to sanction this type of conduct on grounds of “public policy,” we would, as Witco argues, be
Thus, our answer to the Third Circuit’s final certified question is simply this: the public policy of Pennsylvania prohibits a garnishee bank with notice of a judgment order from engaging in transactions with the judgment debtor that it knows or should know will facilitate the judgment debtor in attempts to avoid the lawful garnishment of its assets.
Questions answered. Jurisdiction relinquished.
. The Third Circuit noted that these payments to the Bank appeared to be mostly regular monthly payments in set amounts: $876.20 per month from November 1996 to February 1997, except a December 1996 payment in the amount of $1,314,20; $601.20 per month from March to July 1997, except a June 1997 payment in the amount of $901.90; and one lump sum payment of $15,000 on September 5, 1996.
. The Bank claims that these policies were waived for Herzog Brothers long before the garnishment proceedings began.
. The Bank devotes substantial argument to defining a cashier’s check as a cash equivalent. This argument begs the question presented
. There appears to be no dispute that the personal checks and cash employed by Gary Herzog to buy the bank cashiers' checks represented property belonging to Herzog Brothers.
. Implicit in the Bank’s argument is the suggestion that, had Herzog Brothers been forced to pay Witco the amount of the judgment, Herzog Brothers would not have been able to operate its business. Nothing in the record supports this assertion, and indeed, it appears that the
Reference
- Full Case Name
- WITCO CORPORATION, Appellant v. HERZOG BROTHERS TRUCKING, INC., Appellee v. National City Bank, Appellee
- Cited By
- 10 cases
- Status
- Published