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COHEN v. MARIAN ET AL. (07/17/52)

July 17, 1952

COHEN
v.
MARIAN ET AL.



COUNSEL

Marshall H. Morgan, Philadelphia, for appellant.

William H. Grimditch, Jr., Donald W. Hedges, Mancill, Cooney, Ott and Semans, Philadelphia, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Dithrich

[ 171 Pa. Super. Page 432]

DITHRICH, Judge.

Appellant brought this action in assumpsit to recover the sum of $776.80, with interest, representing the aggregate of service charges alleged to have been unlawfully levied against his 'Special Checking Account' with appellees' bank. During the period January 1, 1943, to June 18, 1945, the date the account was closed, deductions totaling $981.45 were made for banking services. Appellant's complaint is that under the terms of the written contract governing the account, as set forth on the signature card signed by appellant at the time the account was opened, the appellees were entitled to deduct only $204.65 as service charges.

The case was tried non-jury before Burch, J., who found for appellees. The court en banc dismissed appellant's motions for new trial and judgment n. o. v. and entered judgment on the finding of the trial judge. This appeal followed.

The controversy is the result of the unusual manner in which appellant manipulated his bank account and the exceptional service afforded him by appellees' bank. During the period in question appellant's average monthly balance was $42, but checks totaling $362,000, averaging about $12,000 monthly, were issued against and paid from the account. It appears that in

[ 171 Pa. Super. Page 433]

    the ordinary course of business the Federal Reserve would deliver to appellees' bank at 10:30 a. m. all checks drawn on the bank by its depositors. At 1:00 p. m. a messenger of the Federal Reserve would pick up all dishonored checks. However, the bank had until 4:00 p. m. to return them by its own messenger. In the period involved the bank received 1751 checks in substantial amounts drawn by appellant against insufficient funds. At appellant's request these checks were not dishonored immediately but, instead, appellant was given opportunity to make deposits covering them before 4:00 p. m. Such deposits were made on all except 22 occasions when it was necessary for the bank to return the checks to Federal Reserve by its own messenger. The bank sent monthly statements to appellant showing charges for both normal and unusual activity in his account. On 85 occasions the account was overdrawn because it contained insufficient funds to pay the service charges.

Appellant admits that the bank properly deducted $204.65 as charges for the normal banking activity contemplated by Paragraphs 2 and 4 of the signature card. The dispute is whether the additional $776.80 deducted as charges for the special handling of appellant's overdrafts was justified.

Appellees alleged in their answer to plaintiff's second amended complaint that all the service charges 'were proper charges under the terms of the written agreement between the parties.' Under new matter they alleged that the service charges made were 'In strict compliance with the terms and conditions of the written contract.' At trial appellees amended the answer by adding thereto an averment that on or about January 1, 1943, there was posted in the banking ...


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