Uzarski v. Union Nat. Bank
| Decision Date | 16 July 1943 |
| Docket Number | 19-1944 |
| Citation | 33 A.2d 459,152 Pa.Super. 433 |
| Parties | Uzarski, Appellant, v. Union National Bank |
| Court | Pennsylvania Superior Court |
May 5 1943, Argued
Appeal from order of County Court, Allegheny Co., 1942, No. 1087, in case of Cecelia Uzarski v. The Union National Bank.
Trespass.
Affidavit of defense raising questions of law sustained, before McKim P. J., Lencher and Clunk, JJ., opinion by McKim, P. J Plaintiff appealed.
Order affirmed, with leave to plaintiff to amend and to add husband as party plaintiff.
Charles F. C. Arensberg, of Patterson, Crawford, Arensberg & Dunn with him Ella Graubart, for appellant.
John M. Reed, for appellee.
Before Keller, P. J., Baldrige, Stadtfeld, Rhodes, Hirt, Kenworthey and Reno, JJ.
This is an appeal by plaintiff from an order sustaining defendant's affidavit of defense raising questions of law. The action is in trespass. The court was of opinion that the statement of claim did not set forth a good cause of action.
The statement alleges that plaintiff, on January 6, 1941, deposited in defendant-bank $ 1,700 "in the name of her husband, Frank Uzarski, or herself, Cecelia Uzarski"; that she received a pass book which, at the present time, shows a deposit liability of $ 1,747.21; that the money so deposited consisted of her individual earnings and moneys belonging to her separate estate in which her husband had no interest; that her husband has been inducted into the U.S. Army and has left her without adequate funds to support her children and herself; that she gave written notice entitling her to withdraw the fund on September 16, 1942; and that, in spite of the fact that she has notified the defendant that the moneys on deposit in the account belong exclusively to her and that she is in urgent need of the funds, the bank has refused, in violation of its contract, to permit her to withdraw them. She further alleges that as a result of the refusal of the defendant to pay the deposit she "has suffered great damages; she has been without funds to take care of the needs of herself and her children; she has been greatly inconvenienced and embarrassed; and she has had to employ counsel to advise her and to bring this action to compel the payment of the money standing in her account and due and owing to her as aforesaid." She asked damages in the sum of $ 2,500.
We agree with the court below that appellant has not made out a good cause of action in trespass.
Although the breach of a contract may give rise to an action in trespass (Hoehle v. Allegheny Heating Co., 5 Pa.Super. 21,) ordinarily the mere refusal to pay money due under a contract does not amount to a tort. Plaintiff has not alleged that the bank's refusal to pay was with the malicious purpose of causing her harm. See Restatement, Torts, Sec. 870. And the case is very different from the authorities relied upon in which a bank has been held liable for the negligent failure to honor the check of a depositor with resulting loss to the depositor's credit. See First National Bank of Tamaqua v. Shoemaker, 117 Pa. 94, 11 A. 304; Patterson v. Marine Natl. Bank, 130 Pa. 419, 18 A. 632; Weiner v. North Penn Bank, Inc., 65 Pa.Super. 290; Lazar v. State Bank of Philadelphia, 77 Pa.Super. 567. The difference is this: The failure of a bank to honor the check of a depositor involves a legally recognizable risk of harm to the depositor's credit. A bank must be held to be aware of this risk and to assume the responsibility for it as a part of its undertaking. Ordinarily no such risk is involved in the refusal of a bank to pay the money directly to the depositor on his demand.
Although plaintiff has not sufficiently alleged a trespass, we might be inclined to disregard the form of the action, as we did in Nock v. Coca Cola Bottling Co., 102 Pa.Super. 515 156 A. 537, and hold that the statutory demurrer was improperly sustained and that the question of the measure of damages could await the trial. But w...
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