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ROBERT WOOLER COMPANY v. FIDELITY BANK (06/29/84)

filed: June 29, 1984.

ROBERT WOOLER COMPANY
v.
THE FIDELITY BANK, WAYNE RAICHLE AND DONNA E. RAICHLE AND TOUCHE ROSS & CO. APPEAL OF THE FIDELITY BANK



No. 984 Philadelphia, 1982, Appeal from Order and Judgment of the Court of Common Pleas, Civil Division, of Montgomery County, No. 75-01243.

COUNSEL

Michael G. Trachtman, Norristown, for appellant.

Steven T. Stern, Philadelphia, for Wooler, appellee.

Michael L. Temin, Philadelphia, for Touche, appellee.

Wieand, Montemuro and Hoffman, JJ.

Author: Wieand

[ 330 Pa. Super. Page 527]

This appeal requires that we review the nature and extent of the duty owed by an accounting firm to the company

[ 330 Pa. Super. Page 528]

    which retained it to perform unaudited services. It also requires that we review the circumstances under which interest may be added to a tort verdict based on negligence.

Robert Wooler Company (Wooler), a corporation, filed suit against The Fidelity Bank (the Bank) to recover a loss sustained when Wooler's bookkeeper, Donna Raichle, diverted 94 Wooler checks into a personal account maintained by Raichle and her husband at the Bank. The complaint alleged that the Bank had accepted checks for deposit which contained forged corporate endorsements and, therefore, was liable for conversion under 13 Pa.C.S. ยง 3419. The complaint also contained averments that the Bank had failed to exercise reasonable care and had failed to handle the forged instruments in accordance with reasonable commercial standards. The Bank joined Raichle as an additional defendant. It also joined Touche Ross & Co. (Touche Ross), the accounting firm employed by Wooler, alleging that the accountant had enabled the Wooler loss to go undetected by negligently performing accounting services which it had been contractually obligated to perform. Touche Ross filed preliminary objections alleging improper joinder. These objections were dismissed, and, after extensive discovery, the case came on for trial without jury.

Following trial, the court made findings of fact. It found that the Bank had converted the checks and had been guilty of negligence when it accepted checks payable to the corporation and credited the proceeds to Raichle's personal account.*fn1 The court found that Wooler had also been negligent

[ 330 Pa. Super. Page 529]

    but that its contributory negligence had not been a substantial factor in bringing about its loss. On appeal, the Bank has not challenged the court's findings regarding its liability. It does challenge the manner in which the court disposed of the negligence of Touche Ross.*fn2 With respect to the accountant's liability, the trial court made the following findings.

24. Additional defendant Touche Ross and Co. is not liable for contribution to Fidelity or jointly liable or solely liable to Robert Wooler Company.

25. Additional Defendant Touce [sic] Ross and Co. is not liable as stated above on the theories set forth in Judge Takiff's Opinion. Yardis v. First Pa. Bank N.A. and David H.L. Aron & Cogan, Sklar and Company, [20 D. & C.3d 679 (1980)].

26. Additional Defendant is not liable in accordance with current legal theories as set forth above even though it failed to use reasonable care in being alert, and therefore, failed to make the necessary inquiries in accordance with reasonable professional standards so as to discover what was readily discoverable to it in order to protect plaintiff.

[ 330 Pa. Super. Page 53027]

. Professionals such as Touche Ross & Co. cannot be like the three monkeys 'hear no evil, see no evil, speak no evil' in order to avoid liability to the plaintiff if liability were otherwise attachable. (emphasis added).

Judge Takiff's decision in Yardis v. First Pa. Bank, et al., supra, upon which the trial court relied, had been decided on procedural grounds. It had there been held that in an action by a payee against a bank to recover losses sustained when the bank accepted forged checks for deposit, the payee's accountant could not be joined as an additional defendant. In the instant case, however, another judge of the Montgomery County Court of Common Pleas held prior to trial that the joinder of Touche Ross as an additional defendant had been proper and denied a preliminary objection asking that such joinder be stricken. Trial was thereafter completed with Touche Ross, the additional defendant, as a party and active participant.

Exceptions filed by the Bank to the court's adjudication were dismissed by a court en banc without opinion. After the Bank had appealed, the trial judge prepared a "Supplemental Opinion" in which he confirmed the prior basis for his refusal to impose liability upon Touche Ross but added his further conclusion that ...


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