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COMMONWEALTH v. MARYLAND CASUALTY COMPANY (05/25/53)

May 25, 1953

COMMONWEALTH, TO USE,
v.
MARYLAND CASUALTY COMPANY, APPELLANT



Appeals, Nos. 121 to 124, incl., Jan. T., 1953, from judgments of Court of Common Pleas No. 7 of Philadelphia County, March T., 1951, No. 5865, in case of Commonwealth of Pennsylvania, to use of Willow Highlands Company and Land Title Bank and Trust Company v. Maryland Casualty Company and Edward W. Sliker. Judgments affirmed.

COUNSEL

Robert C. Kitchen, with him Richard A. Smith, and Robert S. Ingersoll, Jr., for appellants.

Herbert A. Barton, with him Swartz, Campbell & Henry, for appellees.

Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.

Author: Stern

[ 373 Pa. Page 603]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

These appeals are an aftermath of our previous decision in this case reported in 369 Pa. 300, 85 A.2d 83. The parties there were Commonwealth of Pennsylvania to use of Willow Highlands Company v. Maryland Casualty Company and Edward W. Sliker. The complaint

[ 373 Pa. Page 604]

    filed by the use-plaintiff, Willow Highlands Company, (hereinafter called Willow Company) averred that it had agreed to advance the sum of $5,500.00 on a loan to Herbert and Mary L. Leach to be secured by a mortgage on premises owned by them at 5803 North Seventh Street, Philadelphia; that it delivered to the Land Title Bank and Trust Company (hereinafter called Trust Company) its check in that amount as a special deposit to be used for purpose of the loan; that at the settlement Edward W. Sliker, a notary public, certified that Herbert and Mary L. Leach personally appeared before him and acknowledged the mortgage to be their act and deed; that their purported signatures on the mortgage were forgeries and they had not personally appeared before Sliker or made any acknowledgment before him of the mortgage; that at the settlement the Trust Company issued its settlement check payable to the order of Herbert and Mary L. Leach in the sum of $5,417.75, and gave it to one H. Richard Bennewitt for delivery to them; that Bennewitt forged the endorsements of Herbert and Mary L. Leach on the check, added his own endorsement, and received the amount of the check from the Trust Company; that by reason of these facts Willow Company sustained a loss of $5,500.00, against which it allowed a credit in the sum of $1,133.40, representing a dividend paid by the bankrupt estate of Bennewitt. On the basis of these averments Willow Company sought recovery from Sliker and Maryland Casualty Company, the surety on his official bond, of the sum of $4,366.60 with interest. Maryland Casualty Company filed an answer to the complaint and also new matter in which it averred that the payment made by the Trust Company was not charged by it against the special deposit of Willow Company, but that the latter's money

[ 373 Pa. Page 605]

    was refunded to it by the Trust Company so that it suffered no loss whatever in the transaction. Willow Company filed preliminary objections to the new matter and then moved for judgment on the pleadings, which the court below granted. Upon appeal to this court by Sliker and Maryland Casualty Company we held that Sliker's act in making the false certificate of acknowledgment was an efficient proximate cause of the ultimate loss, even though it may not have been the sole cause. We said, (p. 305, A. 2d p. 86) that "without the false certificate the money would not have been paid out at all and the loss would not have occurred since it was not until the mortgage was acknowledged and delivered that the money would have been distributable. Even, therefore, if Bennewitt's subsequent forgeries facilitated the accomplishment of his fraud they did not absolve these defendants from liability; it was Sliker who was primarily and basically responsible." We pointed out, therefore, that the real question was not whether there was a loss for which defendants were responsible, but who suffered that loss, and that, since it was expressly stated in Maryland Casualty Company's new matter that Willow Company's money was not disbursed by the Trust Company but had been returned to Willow Company, the latter had not been "caught in the toils of the Bennewitt transaction at all," and therefore, under the pleadings, had no cause of action against the defendants. We stated that if the fact were that the Trust Company had paid out Willow Company's money and had subsequently made reimbursement, it would have been subrogated to Willow Company's right to recover, or if it had issued its policy of title insurance to Willow Company and had made payment to it in performance of its obligations thereunder it would likewise have been subrogated to Willow Company's

[ 373 Pa. Page 606]

    right of action, but that neither of those assumed situations appeared from the facts set forth in the pleadings. Accordingly, we held that, while judgment had been properly entered in favor of the Commonwealth against Sliker and the Maryland Casualty Company, which judgment remained for the satisfaction of all persons entitled to the benefit of the bond, the judgment entered in favor of Willow Company must be reversed, and, further, that permission should be granted to the Trust Company to enter the proceedings and file a complaint, with the ...


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