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decided: September 29, 1965.


Appeal from judgment of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1962, No. 46, in case of Philadelphia Title Insurance Company v. Fidelity-Philadelphia Trust Company, The Philadelphia National Bank and The Penn's Grove National Bank & Trust Company.


Howard Saul Marcu, with him Daniel Marcu, and Marcu, Marcu & Marcu, for appellant.

J. Grant McCabe, III, with him L. Carter Anderson, George M. Brodhead, and Rawle & Henderson, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Eagen and Mr. Justice Roberts concur in the result.

Author: Cohen

[ 419 Pa. Page 79]

This is an appeal in an action of assumpsit brought by plaintiff-appellant, Philadelphia Title Insurance Company, against defendant-appellee, Fidelity-Philadelphia Trust Company, to recover the sum of $15,640.82 which was charged against the Title Company's account with Fidelity in payment of a check drawn by the Title Company on Fidelity. The complaint alleged that the endorsement of one of the payees had been forged and that, therefore, Fidelity should not have paid the check. Fidelity joined the Philadelphia National Bank as an additional defendant claiming that if Fidelity were liable to plaintiff, PNB was liable over to Fidelity for having guaranteed the endorsements. PNB joined the Penn's Grove National Bank and Trust Company as a second additional defendant claiming that if PNB were

[ 419 Pa. Page 80]

    liable to Fidelity, Penn's Grove was liable to PNB for having cashed the check and guaranteed the endorsements. By way of defense all of the banks asserted that none of them were liable because the issuance of the check by the Title Company was induced by an impostor and delivered by the Title Company to a confederate of the impostor thereby making the forged endorsement effective.

The case was tried before the lower court sitting without a jury. The trial judge found in favor of the Title Company. Exceptions to said finding were sustained unanimously by the court en banc and judgment was entered against the Title Company and in favor of the banks. The judgment must be affirmed.

The pertinent facts are stated by the lower court: "Edmund Jezemski and Paula Jezemski were husband and wife, estranged and living apart. Edmund Jezemski was administrator and sole heir of his deceased mother's estate, one of the assets of which was premises 1130 North Fortieth Street, Philadelphia. Mrs. Jezemski, without her husband's knowledge, arranged for a mortgage to be placed on this real estate. This mortgage was obtained for Mrs. Jezemski through John M. McAllister, a member of the Philadelphia Bar, and Anthony DiBenedetto, a real estate dealer, and was to be insured by Philadelphia Title Insurance Company, the plaintiff. Shortly before the date set for settlement at the office of the title company, Mrs. Jezemski represented to McAllister and DiBenedetto that her husband would be unable to attend the settlement. She came to McAllister's office in advance of the settlement date, accompanied by a man whom she introduced to McAllister and DiBenedetto as her husband. She and this man, in the presence of McAllister and DiBenedetto, executed a deed conveying the real estate from the estate to Edmund Jezemski and Paula Jezemski as tenants by the entireties and also executed the mortgage,

[ 419 Pa. Page 81]

    bond and warrant which had been prepared. McAllister and DiBenedetto, accompanied by Mrs. Jezemski, met at the office of the title company on the date appointed for settlement, the signed deed and mortgage were produced, the mortgagee handed over the amount of the mortgage, and the title company delivered its check to Mrs. Jezemski for the net proceeds of $15, 640.82, made payable, as we have already mentioned, to Mr. and Mrs. Jezemski individually and Mr. Jezemski as administrator of his mother's estate.

"[The Title Company's] settlement clerk, in the absence of Edmund Jezemski at the settlement, accepted the word of McAllister and DiBenedetto that the deed and mortgage had been signed by Jezemski; he himself, though he had not seen the signatures affixed, signed as a witness to the signatures on the mortgage; he also signed as a ...

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