The opinion of the court was delivered by: RAMBO
Before the court is Defendant's motion for summary judgment and Plaintiff's motion to file a sur-reply brief. The issues have been briefed and the motions are ripe for disposition. On November 15, 1995, the court issued an order granting Defendant's motion for summary judgment and denying Plaintiff's motion to file a sur-reply brief. This memorandum supports that order.
The instant suit arises from an attempt by Plaintiff Susan Hoffman to redeem certain bonds through Bankers Trust Company ("BTC"). The events leading to this dispute began in a garbage transfer station in Jersey City, New Jersey in September or October of 1988. Hoffman was at the station in her capacity as a truck driver for Stonewood Transportation, whose business includes the transportation of garbage. At the garbage station, Hoffman was granted access to an area in which "rejected" magazines and coloring books were stored, and she was permitted to take materials from the area without charge. (Hoffman Dep. at 13-14.) While browsing, Hoffman happened upon approximately forty-six bonds issued by the state of Hawaii, each with a face value of $ 5000.00. Though Hoffman did not believe at the time that the bonds had any value, she took them because she thought that her children might find them entertaining. (Id. at 14, 15.)
Next, Hoffman called the Jersey City police "to ask what my obligations were as far as reporting that I had found . . . [the bonds]." (Id.) She states that the police "really didn't care what I did with them." Hoffman concluded that the police did not believe her story. (Id.)
Hoffman then called Wheat First Securities of Cumberland, Maryland and reached Patsy Green, a broker with Wheat First. Hoffman told Green the "whole story" and asked Green to investigate whether the bonds were outstanding. Green researched the bonds and informed Hoffman that they were payable and had not been reported lost or stolen, and she explained how Hoffman could go about redeeming them. (Id. at 20-21, 23.)
Hoffman also states that she called the Department of Finance in Hawaii seeking information on the status of the bonds. However, she does not indicate when this occurred, what information she sought, or what she was told. (Id. at 21.)
In March or April of 1990, Hoffman again called BTC to inquire into the worth of the bonds and whether they had been reported lost or stolen. She spoke to a BTC bond researcher and provided him with only one bond number. There is no indication that Hoffman told the BTC representative how she came into possession of the bond, that she was holding roughly forty-five more, or that she previously had been instructed by BTC security to deliver the bonds to BTC. (Id. at 24.) The bond researcher informed Hoffman that the bond was outstanding and payable and instructed her to send the bond to BTC for redemption. (Id.) She did so, and within a week she received a letter from BTC stating that the bond was void. (Id. at 25.)
As a result of the letter from BTC, Hoffman states, "I was really disappointed about . . . [the bonds], so I took them out back and threw them in the air. That's why I know it was March, because it was very windy and they blew all over the place. I had enough of it." (Id. at 27.) Apparently, however, Hoffman's son had not. He gathered up the Hawaiian bonds with a face value of nearly a quarter of a million dollars and returned them to his mother, who "threw them back in a drawer . . . ." (Id.)
The bonds lay dormant for almost four years. In January of 1994, Hoffman again contacted Patsy Green and asked her to investigate the worth of the bonds. She delivered some twenty-one of the bonds to Green. (Id. at 28-29.) Green inquired with BTC regarding the status of the bonds, and in a letter dated June 28, 1994, BTC advised Green that the bonds were "verified as outstanding and may be sent in for redemption." The June 28 letter went on to specify certain standard forms which had to be completed in order to accomplish redemption, and it directed her to submit the bonds along with the specified documentation to BTC. (Complaint, Exhibit 19.) In July of 1994, Green notified Hoffman of the substance of BTC's June 28 letter. Shortly afterward, Plaintiff completed the necessary forms and delivered them to Green, who in turn sent the bonds and documents to BTC. (Id.) There is no indication that in the course of Hoffman's third pass at BTC it was appraised of how Hoffman acquired the bonds, of Hoffman's previously unsuccessful attempt to redeem one of the garbage station bonds, or of the BTC security agent's prior instruction that Hoffman immediately deliver the bonds to BTC's security department.
On July 25, 1995, Plaintiff received a check from BTC dated July 22, 1995 for $ 105,000.00. She deposited the check in her personal account the same day, and in the ensuing four days she spent approximately $ 47,000.00, principally on retiring existing debt and the purchase of two automobiles. (Id. at 34-37; Complaint at P 19.) On July 28, 1995, BTC refused to honor the check. (Complaint at P 11.) Hoffman's bank apparently received the returned check on July 29, 1995, and notified her the same day. (Hoffman Dep. at 32, 37.)
Thereafter, Hoffman made an inquiry to the Pennsylvania Securities Commission regarding the status of the bonds. She was informed that the bonds had been redeemed in February of 1986. (Id. at 66-69.)
In February of 1995, Plaintiff filed a two count complaint against BTC claiming breach of contract and either intentional, reckless, or ...