No. 634 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4854 April Term, 1975.
Michael Minkin, Philadelphia, for appellant.
Gerald J. St. John, Philadelphia, for appellees.
Brosky, Watkins and Montgomery, JJ.
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Appellant commenced this action to recover damages for what it claims was the wrongful cashing of one of its checks by appellee. The check, signed by Irving Mangel, President of Aimco, was made payable to the bank and was used to reduce the size of the balance of a personal loan made by the bank to Mr. Mangel. Appellant contends that the bank knew that Mr. Mangel did not have authority to write the check and therefore breached its contractual and fiduciary duties to Aimco in cashing it. The case is before us on appeal from a grant of summary judgment to appellee. We affirm.
Aimco Imports was incorporated in April, 1971. The two shareholders of the corporation were Irving Mangel and Melvin Twersky. A checking account, opened prior to incorporation, at Industrial Valley Bank (hereinafter IVB) was modified and the signature card for the account indicated that the signatures of both Mangel and Twersky were required as authorized signatures of the account. In January, 1974, a new signature card was executed which provided that any one of four persons, including Messrs. Mangel and Twersky, was the authorized signatory for the account. The signature card made reference to new resolutions that were also filed by Aimco with the bank in January, 1974.
In May, 1974, Messrs. Mangel and Twersky took out personal loans with IVB. The total of the loans was to be $96,500, of which $50,000 was borrowed by Mr. Twersky and his wife. Mr. Mangel and his brother borrowed $71,173.13, $30,000 of which was invested in Aimco and Mr. Mangel's parents borrowed $16,500 which was invested in Aimco. The bank was aware that $96,500 was to be invested in Aimco and apparently suggested that the loans be made to the individuals, not the corporation.
In December, 1974, Mr. Mangel deposited a check in the amount of $185,605 in the Aimco account. The check represented insurance proceeds paid to Aimco as a result of a fire loss incurred by the company. Also, on December 27, 1974, Irving Mangel presented to the bank an Aimco check, in the amount of $35,000, payable to the bank and signed only by
[ 291 Pa. Super. Page 236]
him. He directed IVB to apply the proceeds to reduce the size of the outstanding balance of his loan. This action followed the Bank's compliance with Mr. Mangel's instructions.
Pa.R.C.P. 1035, provides in pertinent part:
(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings, depositions, answers to interrogatories, ...