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HELEN BETZ MCMICKLE v. GIRARD BANK (09/15/86)

filed: September 15, 1986.

HELEN BETZ MCMICKLE, EXECUTRIX OF ESTATE OF MATILDA S. BETZ, APPELLANT,
v.
GIRARD BANK



Appeal from the Order Entered October 8, 1985 in the Court of Common Pleas of Philadelphia County, Civil, No. 3858 April Term 1980.

COUNSEL

Donald Hayes, Philadelphia, for appellant.

Kenneth C. Frazier, Philadelphia, for appellee.

Cavanaugh, Wickersham and Roberts, JJ.

Author: Roberts

[ 356 Pa. Super. Page 522]

The sole issue presented for our review is whether a bank properly has made available to its customer a statement of account when the bank has sent this information to an

[ 356 Pa. Super. Page 523]

    attorney, designated by the customer, who later is found to have forged checks with the customer's name. If the bank has met its obligation of making the financial records available, then 13 Pa.C.S.A. ยง 4406(d)*fn1 imposes a duty on the customer to discover and report to the bank any unauthorized signature that appears on an item listed in the statement within one year. Here, the trial court held that the bank had met its statutory duty of informing the customer and, consequently, the customer was obligated to notify the bank of the challenged payment. Because the customer failed to notify the bank in accordance with the one-year statute of limitation, the trial court concluded that the customer was barred from maintaining an action for unauthorized payment of forged checks. We agree and, therefore, affirm the order dismissing the present claim.

The relevant undisputed facts are: plaintiff-appellant, Helen Betz McMickle, was appointed executrix of the estate of her mother, Matilda Betz. In carrying out her duties as executrix, McMickle opened a checking account with defendant-appellee, Girard Bank. Additionally, she retained the services of attorney Frederick D. Duden, as counsel for the estate. McMickle designated Duden as the person who should receive bank statements and cancelled checks from Girard.

Duden subsequently forged McMickle's name on two checks. He perpetrated the fraud by informing McMickle that checks needed to be drawn on the account for the payment of federal and state taxes. Having indicated to McMickle the amounts of the necessary payments, Duden then prepared the forged checks, naming himself as the payee rather than the appropriate government agency. The first check, in the amount of $18,058.50 and dated May 27, 1976, was shown as having been paid in the June 4, 1976 statement sent by Girard to Duden. The second check, in the amount of $22,100.00 and dated June 30, 1976, was

[ 356 Pa. Super. Page 524]

    reflected in the July 7, 1976 statement. Although the record establishes that McMickle inspected the cancelled checks and statements in late 1976 and again in September of 1979, it was not until January of 1980, after learning of Duden's disbarrment and imprisonment for prior thefts from estates, that McMickle notified Girard and demanded reimbursement for the amount paid on the challenged checks.

Section 4406(d) imposes an absolute one-year time limit for a customer to notify his or her bank of the unauthorized ...


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