Original jurisdiction in case of Pennsylvania Bankers Association, Allegheny Valley Bank of Pittsburgh, Bucks County Bank and Trust Company, Century National Bank and Trust Company and The Dale National Bank v. Commonwealth of Pennsylvania, Secretary of Banking and Philadelphia Savings Fund Society.
John J. Brennan, with him Gordon W. Gerber, and Dechert, Price & Rhoads, for petitioners.
Jeffrey G. Cokin, Deputy Attorney General, with him Vincent X. Yakowicz, Solicitor General, and Robert P. Kane, Attorney General, for respondents.
Robert S. Ryan, with him Edward M. Posner, and Drinker, Biddle & Reath, for intervenor.
President Judge Bowman and Judges Wilkinson, Jr., Rogers and Blatt. Judge Crumlish, Jr. did not participate. Opinion by Judge Wilkinson, Jr.
[ 32 Pa. Commw. Page 441]
We have before us cross-motions for summary judgment. The issue before us is as pure a question of law as one could postulate. However, its resolution is not without difficulty. Indeed, on substantially the same question, admittedly under somewhat different statutes, the courts of New York,*fn1 New Jersey*fn2 and Maine*fn3 have ruled in favor of Petitioners' motion, whereas the courts of Massachusetts,*fn4 Iowa*fn5 and Wisconsin*fn6 have ruled in favor of Respondents' cross-motion.
We agree with the Statement of the Question Involved as contained in Petitioners' brief, with one major exception which may be controlling:
Did the Department of Banking exceed the limits of its rule-making power under the Banking Code by its regulation permitting mutual savings banks, for the first time, to have accounts which can be used just like checking accounts as distinguished from savings deposits which are within the defined statutory powers of savings banks?
As will appear in the brief recitation of the facts, the bank accounts in question cannot "be used just like checking accounts."
[ 32 Pa. Commw. Page 442]
On December 27, 1976, the Attorney General of Pennsylvania responded to a request for advice from the Secretary of the Department of Banking (Secretary) on the question of whether savings banks operating under the Banking Code of 1965, Act of November 30, 1965, P.L. 847, as amended, 7 P.S. § 101 et seq. (Code), may offer depositors a non-interest bearing account from which money may be withdrawn by means of a negotiable order of withdrawal payable to a named third party. The negotiable order is "payable through" a commercial bank. The Attorney General's response was that there was nothing in the Code which prohibits NOW accounts and that the regulatory authority of the Secretary permitted that office to promulgate regulations detailing the methods of operations of NOW accounts, provided, each NOW account draft contains language which indicates that the bank may require 14 days' notice before making payment.*fn7 It is this provision, required by Section 503(a) of the Code, 7 P.S. § 503(a), which distinguishes the NOW draft from the traditional check.
Since the Attorney General's opinion is published,*fn8 no good purpose would be served by setting forth at length, as it does, the relevant sections of the Code which deal or could be argued deal with the matter. We agree that no section prohibits NOW accounts. Further, we agree that it is appropriate that the regulations require the notation that the ...