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DAVID R. VAN NORMAN AND MARY ELLEN VAN NORMAN v. WALTER JONES (06/14/85)

filed: June 14, 1985.

DAVID R. VAN NORMAN AND MARY ELLEN VAN NORMAN, HIS WIFE, APPELLANTS,
v.
WALTER JONES, APPELLEE. WALTER JONES V. DAVID R. VAN NORMAN AND MARY ELLEN VAN NORMAN, HIS WIFE, AND FIRST VALLEY BANK. APPEAL OF DAVID VAN NORMAN AND MARY ELLEN VAN NORMAN, HIS WIFE. WALTER JONES, APPELLANT, V. DAVID R. VAN NORMAN AND MARY ELLEN VAN NORMAN, HIS WIFE, AND FIRST VALLEY BANK



Appeal from the Judgment entered in the Court of Common Pleas of Northampton County, Civil No. 1983-CE-441. (No. 314 Philadelphia, 1984) Appeals from the Judgment entered in the Court of Common Pleas of Northampton County, Civil No. 1981-C-11353. (No. 384 Philadelphia, 1984)

COUNSEL

Ronold J. Karasek, Bangor, for appellants (at 314 and 315) and appellees (at 384).

Peter S. Steinberger, Allentown, for appellant (at 384) and appellee (at 314 and 315).

Michael A. Filingo, Bangor, for First Valley, appellee.

Rowley, Watkins and Geisz, JJ.*fn*

Author: Rowley

[ 343 Pa. Super. Page 353]

OPINION OF THE COURT

These three appeals arise from two separate actions instituted in the trial court: 1) an action for wrongful appropriation of four checks brought by Walter Jones against David Van Norman (Jones' former employee), Mary Ellen Van Norman (David's wife), and the First Valley Bank, wherein the Van Normans counterclaimed for sums owed by Jones to David Van Norman on sixteen specific job contracts; and 2) a subsequent action in equity for a full and complete accounting brought by David and Mary Ellen Van Norman against Walter Jones.

In the action for wrongful appropriation of funds, the trial court entered a non-jury verdict in favor of Jones against the Van Normans only, in the sum of $6,000.00. The Van Normans appealed from the Judgment entered on the verdict following the dismissal of all exceptions filed by the parties (No. 315 Philadelphia, 1984) and Walter Jones filed a cross appeal (No. 384 Philadelphia, 1984).

In the equity suit, the trial court sustained Walter Jones' preliminary objections to the Van Normans' complaint, dismissed the complaint with prejudice, and Judgment was entered in favor of Jones. The Van Normans have also appealed from that determination (No. 314 Philadelphia, 1984).

Upon a thorough review of the record herein, we reverse the Judgment entered in the wrongful appropriation action and remand the case for a new trial. The Judgment entered on the trial court's Order dismissing the complaint in equity filed by the Van Normans is affirmed.

[ 343 Pa. Super. Page 354]

WRONGFUL APPROPRIATION ACTION APPEALS NOS. 315 AND 384 PHILADELPHIA, 1984

The evidence presented at the non-jury trial in the wrongful appropriation action reveals the following facts. David Van Norman began working for Walter Jones in his boiler sales, service and installation business sometime in 1977. In late 1978, or early 1979, Jones and Van Norman agreed to a method of payment whereby Van Norman would receive 50% of the net profit on each customer contract and reimbursement for expenses. Since Jones and Van Norman traveled frequently to their work, Walter Jones gave Mary Ellen Van Norman (David's wife), deposit slips so that she could deposit customer payment checks sent to her in Walter Jones' New York bank account at Manufacturers Hanover Bank. Mrs. Van Norman was authorized by Jones to endorse these checks with his name for deposit only into the New York bank account.

During the period from May 1979 through December 1980, Mrs. Van Norman received four customer checks payable to Walter Jones which she endorsed by signing Walter Jones' name and her name, or her husband's name. Instead of being deposited in Walter Jones' New York bank account, however, the checks were either deposited into the Van Normans' personal account at First Valley Bank in Pennsylvania or cashed by First Valley Bank, with part of the proceeds paid in cash to Mrs. Van Norman and part of the proceeds deposited in the Van Normans' personal account. In late 1980, Walter Jones drew several checks on his New York checking account which were returned for insufficient funds. Jones then contacted several customers whom he thought had paid him and they sent him copies of payment checks that they had forwarded to Mrs. Van Norman. Upon learning that the checks were processed through a bank in Pennsylvania rather than Manufacturers Hanover Bank in New York, Jones contacted his attorney.

On February 25, 1982, Walter Jones filed a complaint in assumpsit and trespass against the Van Normans and First Valley Bank for conversion of funds wherein he sought to

[ 343 Pa. Super. Page 355]

    recover the proceeds of the four checks which totaled $10,878.58. Jones alleged that the Van Normans were not authorized to receive payment on the checks from First Valley Bank and that Mrs. Van Norman's ...


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