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LICHTENSTEIN v. KIDDER

December 28, 1989

JODIE B. LICHTENSTEIN, an individual, Plaintiff,
v.
KIDDER, PEABODY & CO., INCORPORATED, a Delaware corporation, Defendant



The opinion of the court was delivered by: COHILL

 MAURICE B. COHILL, JR., CHIEF UNITED STATES DISTRICT JUDGE.

 Plaintiff, a Pennsylvania resident and a former client of defendant Kidder, Peabody & Company ("Kidder, Peabody"), a Delaware corporation, charges that she lost substantial amounts of money as a result of unauthorized transactions in her account and the payment of funds from her account over her forged signature on Visa checks. This Court has jurisdiction pursuant to 28 U.S.C. § 1332 due to the diversity of citizenship between the parties.

 Presently before the Court is defendant's Motion for Partial Summary Judgment. For the reasons stated below, we will grant this motion.

 Background

 On April 8, 1985, plaintiff opened a "Premium Account" with Kidder, Peabody. Complaint, para. 10. This account allowed plaintiff to deposit cash and securities, and, through a program administered by Kidder, Peabody in connection with Bank One of Columbus, N.A., to draft checks against these assets. Id. at paras. 11-13, Affidavit of Boyd S. Murray, Kidder, Peabody Branch Manager, para. 3. Plaintiff listed her address on Kidder, Peabody's Client Information Form as 6111 Penn Avenue, Pittsburgh, Pennsylvania. Defendant's Exhibit 2. Plaintiff asserts that she deposited a substantial portion of her life savings (in excess of $ 200,000 in cash and securities) into the account "with the expectation that she could utilize the income but would always be able to preserve the principal of the Premium Account." Complaint at paras. 9, 15.

 Plaintiff charges that her indorsement was forged to authorize the transfer of securities she owned into the Premium Account, and to authorize their sale. Id. at paras. 19-28. She further charges that bonds in which she had an ownership interest were redeemed over her forged indorsement. Id. at paras. 30, 32. She alleges that in each case, defendant guaranteed the signatures as being hers. Id. at 21, 26, 31.

 Plaintiff alleges that the signatures on these checks were forged. Id. at para. 42. She asserts that monthly statements regarding the Premium Account were sent to the business address of Alan Lichtenstein, her husband, rather than to her residential address. Id. at para. 39. Plaintiff was divorced from Alan Lichtenstein on July 25, 1988. Id. at para. 4. According to defendant's third-party complaint against Alan Lichtenstein, plaintiff has alleged that Mr. Lichtenstein forged her signature on various checks and other instruments.

 Plaintiff charges defendant with conversion, negligence, breach of fiduciary duty, and breach of express and implied contract for its involvement in these transactions. Defendant has moved for partial summary judgment on the ground that Section 4-406 of the Uniform Commercial Code (codified at 13 Pa.Cons.Stat. § 4406) precludes the plaintiff from asserting forgery on most of the checks at issue because she failed to report the problem to defendant within one year from the time account statements were made available to her.

 Discussion

 Pennsylvania's codification of UCC § 4-406 states in pertinent part:

 
(a) General rule. -- When a bank sends to its customer a statement of account accompanied by items paid in good faith in support of the debit entries or holds the statement and items pursuant to a request or instructions of its customer or otherwise in a reasonable manner makes the statement and items available to the customer, the customer must exercise reasonable care and promptness to examine the statement and items to discover his ...

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