*1 request separate its untary relinquishment denying be dis- erred for petition hearing involuntary for ter- petition on its missed was based on failure to Mother’s rights. parental mination of Mother’s comply with specific provisions the Or- Rules. In phans’ specif- Court view of ¶ 16 of the reasons set forth For all 2.1, language ic of Rule for provides above, 16, affirm the March 2001 Order we Rules, liberal construction of the we dismissing Orphans’ Court OCY’s Orphans’ conclude that did not Court involuntary petition for termination of in refusing grant err to motion to OCY’s parental rights respect Mother’s to dismiss.7 denying A.J.B. and OCY’s motion to dis- relinquishment voluntary miss Mother’s Finally, reject we claim OCY’s petition.8 Court Orphans’ refusing that erred ¶ 17 Order affirmed. grant hearing to on its to petition invol untarily parental terminate Mother’s involuntary An
rights. termination hear was to on
ing place scheduled take Decem 21, 2000; however, ap
ber when Mother
peared day, on that orally she indicated relinquish parental
that she wished to her PIONEER COMMERCIAL FUNDING time, rights voluntarily. At that Or One, Texas, CORP. and Bank phans’ proceeding Court continued the N.A. twenty days order Mother allow file the appropriate petition, that noting OCY AMERICAN FINANCIAL MORTGAGE option
would then have the opposing CORP., Flatley, Thomas F. Northwest consenting petition. to Mother’s In addi Funding, Bank, Inc. CoreStates tion the fact any that OCY fails to cite N.A. argument support it was enti that Appeal Bank, to a separate hearing Of: CoreStates N.A. tled its involun on tary petition, termination it is clear that Superior Pennsylvania. Court had opportunity OCY to present evi Argued Nov. 2001. itwhy dence as to pa believed Mother’s Filed March 2002. rights rental should be terminated invol Reargument May Denied 2002. untarily during hearing on Mother’s voluntary relinquishment petition on Thus,
March 2001. we find no merit to Court, claim
OCY’s that the Orphans’ Adoption party’s We Orphans’ 7. note that in case of In to adhere re failure W.C.K, 223 (Pa.Super.2000), cited Court Rules. support argument OCY of its that the Orphans' jurisdiction Court did not have Court, note that in its brief to OCY voluntarily petition Mother’s hear relin- argued process also due that substantive rights, quish parental her held this Court analysis employed by Orphans’ Court was Orphans’ jurisdiction did not Court have agree analysis unnecessary. We an such seeking couple because to terminate case, unnecessary instant do rights parental did mother's not stand in loco engage analysis not an reach in such our W.C.K., and, therefore, parentis to lacked Thus, determination conclude herein. we standing to file cause of under the action regarding this issue is further discussion 2512(a). § Adoption See Act. 23 Pa.C.S. not warranted here. W.C.K., any our Neither decision in nor OCY, other cases cited was based on the *7 Titus, H. Pittsburgh,
Paul and Andrew York, Frey, NY, L. for New CoreStates Bank, appellant. Mitts, R. Philadelphia,
Maurice and Mann, MI, Arbor, Ronald Ann for Pioneer Commercial, appellee.
Christopher Day, Philadelphia, J. Philadelphia Greater Chamber of Com- merce, amicus curiae. JOHNSON, BECK, and
Before JOYCE JJ.
JOYCE, J: ¶ Bank, 1 Appellant, CoreStates N.A. homebuyers. part, On its (Bank),1 en- fund loans judgment from the appeals funding from Bank derived its December Pioneer tered the trial court on 2000,2 jury verdict favor One. following a Funding Commercial
Appellee, Pioneer filed for August In RNG bank- (Pioneer). For the reasons Corporation Chapter ruptcy pursuant herein, part affirm set forth we American Financial Bankruptcy Code. in part. reverse (AFMC), a mort- Corporation Mortgage upon learning of RNG’s originator, proce gage facts and pertinent negotiations into bankruptcy, entered this case are as follows. history dural Pio- persuaded then Pioneer, funding acquire RNG. AFMC mortgage is a Appellee, funding con- Pioneer neer to continue RNG’s lender. company, warehouse keep open as to RNG’s sumer loans so relationship RNG had a business commit- (RNG), mortgage of unfunded Services, pipeline Inc. Califor Mortgage Pioneer, RNG, AFMC then MayA 1997 ments. mortgage banker. nia-based security agree- into a loan and rela entered governing the business agreement ment, the lender and with Pioneer as Pioneer would re tionship provided that Flatley, Thomas as the borrower. in the notes and AFMC security ceive a interest (the guaranteed AFMC’s principal, collater AFMC’s mortgages by RNG obtained Under al) obligations agreement. under the the notes and any proceeds and in would continue agreement, Pioneer protect In order to mortgages. notes, long as as RNG was ordinarily funding RNG’s loans interest RNG purchase them. and de able to locate investors endorse the notes blank would turn, commit- Pioneer, and AFMC then obtained which in deliv RNG liver them to (Nor- (Bank One, Funding, Inc. Texas ments from Norwest notes to Bank ered the west). One). meant that Nor- The commitments then send Bank One would that letters,3 purchase the RNG loans re west would notes under bailee individual to the fact that RNG funded. Due custody they were Pioneer leasing them from its as a condition for its bankruptcy, in was secondary-market paid by the ultimate commitments, insisted “origi Norwest them. RNG purchased vestors i.e., guarantee performance money to AFMC mortgages, loaned nated” notes, underlying on the resulting notes buyers and homeowners home sold The net effect of which AFMC did. investors as Pio mortgages such *8 April parties given entry Bank in 1998. order has been ion National notice of the and defenses of stipulated 236(b)). that all claims Pa.R.C.P. required Pa.R.C.P. Thus, apply to First Union. CoreStates would prothonotary shall immedi- provides that the and CoreS- to both First Union we will refer entry any give the ately written notice of collectively “Bank.” as the tates order, party's judgment each to decree attorney of record. on the Although judgment was entered the 2. 20, 2000, pursuant to December docket on legal letter is a mechanism 3. A bailee 236, to was sent notice of the order Pa.R.C.P. posses to release a secured creditor allows See Pa. parties December the on as a negotiable instrument such of a sion 108(b) (the entry of an order date R.A.P. note, perfected losing status of the without Pennsylvania subject Rules of to the a matter the interest in the collateral. day on which shall be the Civil Procedure letter; request and wired complied under a bailee AFMC would en- with AFMC’s along dorse the notes and send them with the to Bank One. funds Norwest; the bailee letter to and Norwest (The The Second Transaction Second directly would then wire the funds to Pio- Portfolio): war, neer’s at account Bank One. Norwest ¶ 5 to ar pursuant parties’ the Again, given wiring to wire instructions the funds the loan rangement, second transaction to account Pioneer’s at Bank One. proceeded like one. At later the first (The The First Transaction First Port- transaction, the AFMC the stage of sent folio): notes Norwest. Prior to this second to ¶ 4 to Pursuant this elaborate and com- transaction, RNG, Pio representatives of plex arrangement, obtained RNG note:: to en neer and AFMC contacted Norwest companies, from title endorsed them payments sure that the would be to sent blank and sent them Pioneer. to Pioneer account Bank than Pioneer’s at One rather then sent notes to Bank One. Bank account Bank. Despite AFMC’s at the notes, along One later sent the AFMC, contrary, to the of its instructions receiving bailee to Upon letter4 AFMC. accord, wiring own later sent instructions items, these AFMC endorsed the notes to Norwest to wire the funds to AFMC’s them, along and sent with other document:: at the account Bank. Norwest, to having previously Norwest agreed purchase to approximately mil- $2.8 12, 1997, 6 On November Norwest (First. lion worth of RNG-originated loans $1,454,699.80 wired to AFMC’s account Portfolio). Loan then inspected Norwest subsequently Bank. Norwest wired and approximately *9 being you purchase for a delivered under immediately by wire be made transfer existing the take out commitment.... Either N.A., One, available funds to: Bank Texas payment full for the collateral or the collat agent account ... credit: Pioneer Commer- days eral must be within 45 itself received Funding Corp...." cial after the date of this letter. Until that time 4, On December all or remittitur. a debit restraint on the new trial imposed affiliates, 2000, trial court denied the Bank’s mean- the accounts of AFMC and its and for a new trial. The affiliates could motion for JNOV ing that AFMC and its remittitur, however, the granted funds from deposit but could not withdraw trial court damages to reducing punitive these accounts. the $40.5 21, 2000, in- after million. On December ¶ 1997, 25, noti- November AFMC 8 On compensatory on the cluding the interest wrongly- had fied the Bank that Norwest award, court entered the trial damages (the Fund) $1,779,519.99 into deposited in the in favor of Pioneer judgment account at the Bank. Norwest AFMC’s 3, $55,858,374.28. January On amount of the requested the Bank reverse also 2001, timely appealed the Bank account. transfers sent to AFMC’s wire Court, raising following the issues: notifications, the Bank these Despite already that it had exercised claimed (proceeds funds from the 1. When deposited into right to setoff the amount notes) depositor’s to a sale of are wired against account the amount owed AFMC’s account, is the bank’s unrestricted bank The Bank through overdrafts. AFMC against funds the right to set off the Flatley subsequent- and Thomas of AFMC uncontested debt to the bank depositor’s under agreement into a workout ly entered a asserting a claimant superior to that of money the the Bank would retain where: security proceeds interest the Pioneer was not deposited by Norwest. (a) comply claimant failed to the then agreement. of this Pioneer informed obtaining a valid requirements for the money from the sought to recover the (b) interest; in- purchaser the security Bank, deposited that Norwest claiming payment to and did wire the tended in error. money into AFMC’s account depositor, to the who proper amount (c) it; deposi- entitled to receive Bank’s refusal to for- Following interposed in purposefully tor been had upon request, the Fund to Pioneer ward (d) notes; of title of the the chain 1998, 20, initiated this Pioneer April on comply with Penn- the claimant failed filing complaint of a through action sylvania’s adverse claims statute? the tort that the Bank committed alleging named defendants of conversion. The required trial because 2. Is new AFMC, Bank, Flatley, F. Thomas were the (a) jury instruct the failed to court: proceeded to and Norwest. The case by operation of law that setoff occurs 2, The trial was jury trial on June priority it over securi- and that takes in a fashion consist- conducted bifurcated (b) interest; the claimant to ty allowed liability phase followed ing of the exercise of the setoff portray the bank’s July after damages phase. On of a workout subsequent execution deliberation, Bank lia- found the a con- depositor agreement with returned a verdict for conversion and ble (c) the bank for sanctioned spiracy; following of Pioneer in favor by allowing discovery violations $1,779,519.99 (compensatory amounts: discovery dis- parade claimant (consequential million damages), $18.5 jury, barring while putes before dam- (punitive million damages) and $337.5 testifying counsel from bank’s former ages). discovery disputes about (d) permitted agreement; the Bank filed workout August 10 On inflammatory state- range of a wide seeking judgment not- motions post-trial (JNOV) jury? to be made and a ments withstanding the verdict
279
501,
Conversely,
3.
claimant
4. Is the bank a judgment as matter of (a) damages though statutory com- even at trial such that presented evidence (b) mon supported position law it disagree no two minds reasonable could acted on of the advice counsel? favor of the verdict should be in Co., Degenhardt
5. Was the million remitted pu- v. Dillon $40.5 movant.[5] 153, 946, nitive award excessive the Due 146, under 543 Pa. 669 950 A.2d law, Pennsylvania (1996). Process Clause and Finally, credibility we note that and did trial court admitting err in jury, determinations are for the which parent evidence of the net worth of the all, part, “is entitled believe or none of merger partner for pur- bank’s presented. v. Abex evidence Randt poses of determining punitive damages? 228, 224, Corp., Pa.Super. 448 A.2d 671 (1996).” Brief, 233 Bank’s 2.
¶ 11 many Since of issues Jencka, 388, Brinich v. 757 A.2d 395 raised the Bank stem from the denial of (Pa.Super.2000). post-trial seeking judgment motions not 12 issues Appel Some raised verdict a
withstanding the new tri and/or challenges lant involve to the trial court’s al, we begin by setting governing forth the conclusions of law. As such of our review standards of review. plenary. these issues is See Moorhead v. The decision whether a grant new Ctr., 156, Chester Med. 564 Pa. 765 Crozer trial lies the trial discre- within court’s 786, (2001); v. A- A.2d Best Phillips 788 Evans, 496, tion. v. Martin 551 Pa. Co., 124, 1167, Products 542 Pa. A.2d 665 501-02, (1998). 458, 711 A.2d 461 (1995). Appli 1170 See also American Therefore, reviewing when order de- an Management, v. Real ance E.W. Estate trial, nying a for motion a new we must (2001) Inc., 473, 444, 564 Pa. 769 A.2d 446 determine whether trial court “clear- (appellate questions review law is ly and palpably abused its discretion or plenary). error of committed an law affect- ed the Whyte outcome the case.” Sufficiency of the Conver- Evidence:
Robinson, Pa.Super. sion: (1992). “A new warrant- trial depri ed when the 13 “Conversion is contrary verdict is so in, right property the evidence that it shocks one’s vation another’s Martin, of, chattel, justice.” possession sense of Pa. at use or a without differently, upon Put there bases with all inferences adverse to are two factual decided one, requires judgment which a n.o.v. can be entered: movant the law nonetheless favor, judgment as a verdict in whereas with second movant is entitled matter his law, two, evidentiary the court record and the evidence was such that reviews and/or disagree such two minds concludes that evidence was no reasonable could peradven- beyond have rendered in verdict the movant was outcome should been ture, first, Raeuchle, Pa. favor of the movant. With the court Moure v. (1992) (citations omitted). A.2d and concludes that even reviews record *11 280 that the Bank was Fund and lawful owned the consent and without
the owner’s Oswell, Hotz conversion. Melanie Shonberger v. 365 liable for justification.” (1987). (Pioneer), (RNG), Howard Klein Glenda Pa.Super. (AFMC), Joseph v. Charles Scheuren According to L.B. Foster Co. Seidman Inc., Yard, (AFMC) Metal all the Fund be- Caracciolo Steel & testified (Pa.Super.2001), In addition to the tes- longed A.2d 1095-1096 to Pioneer. individuals, the *12 Bank’s the general provisions estate; however, recitation of erty for in hght benefit 552(a) section, of section is correct. This any inquiry of lenders failure to make however, Bank any does not afford relief. prior to debtors’ financial condition to The Bank is correct that under 11 U.S.G. loan, making post-petition lenders were 364(c), § a bankruptcy trustee/debtor-in- property entitled to hen deed of trust possession must receive court be approval only for unreimbursed portion funds fore obtaining incurring credit or debt a advanced, they bhndly with no bene- 364(c) by secured hen. the Section allows loan). fit from court, bankruptcy after notice hear and a bar, 17 In the at case RNG’s to ing, incurring authorize the of debt failure obtain court bankruptcy approval to (1) granting pri the to creditors of either obtaining before a loan secured from Pio ority over all other ex administrative automatically neer not strip did the loan (2) penses, a property hen on of the estate However, of its secured status. the bank (3) hen, subject not otherwise to a a court, ruptcy upon petition party a junior property hen on of the estate sub so, to do standing could rescind the trans ject to a hen. Pursuant to the above sec strip action the of its loan secured and/or tion, in trustee-debtor versus dis creditor RNG, status. In the case of there has putes, bankruptcy courts routinely have petition bankruptcy been no to the court to held that a who purports creditor to ex status, strip loan of the its secured tend secured to a credit bankruptcy trust court has ruled bankruptcy not without ee court approval not entitled loan lose its status must secured because priority or super-priority See treatment. failure to court approval RNG’s obtain Hawaii, Inc., In e.g. re Pizza 60 B.R. obtaining before the loan from Pioneer. 1986) (Creditor (Bkrtcy.D.Hawai’i did not Therefore, agree we cannot with the Bank priority have administrative claim where loan a general, was RNG hearing loan occurred post-petition, and no loan unsecured and that Pioneer was noth debt). held was to authorize incurring of ing general, than a unsecured more credi However, bankruptcy courts do not auto Consequently, tor of Pioneer had RNG. at matically or strip rescind post-petition least, security interest the Fund. (obtained “secured” debts court without Thus, Bankruptcy Code affords Bank approval) of their simply secured status we Parenthetically, question no relief. prior because there was no approval. court standing Bank’s to raise issues related to Some courts have exercised their discre Bank bankruptcy RNG’s case: the was not in deciding tion remedy for the failure RNG; a creditor to the Bank was not obtain court re approval. e.g. See In McConville, involved in transaction with RNG either (1997), 110 F.3d certiorari pre- or the Bank post-petition; and was denied 522 U.S. S.Ct. (The not involved in the bankruptcy otherwise appropriate remedy, L.Ed.2d 315 proceedings. correctly pointed As Pioneer Chapter when un debtors-in-possession out, no court has ever invalidated a credi lawfully post-petition, executed deed with security complain tor’s interest when obtaining bankruptcy ap out first court ing party party bankrupt was not a proval abihty of their to incur secured debt, cy case, not involved in post-petition limiting was otherwise was order proceeding has not totally bankruptcy peti amount of deed of trust hen and not trust, rescinding bankruptcy deed of where loan ad tioned the court to invalidate essence, security vanced deed of trust en- In lenders had interest issue. it, the bank opportunity Bank invites the first court to able act on us to be reject payment not order ex- security may interest a loan ob- invalidate a reason ser- cept court unrelated bankruptcy approval tained without process. vice of though complainant in- even was not bankruptcy proceeding volved argues pursuant to 19 The Bank bankruptcy petitioned has not court 4A502(c)(1), the Fund section when security interest. polite- invalidate account, wired to AFMC’s auto *13 ly decline this invitation.6 of matically effectuated a setoff that debt to applied amount and it to AFMC’s Applicability 4A502 the Section Bank, the According the the set- Bank. to UCC: not on De automatically off occurred opined. 1997 as the trial court cember
¶ argues 18 The Bank that even if Pio- security neer had a valid interest ¶ agree the Bank 20 with Fund, judgment the Bank entitled to is Pennsylvania pursuant Royal to Bank of 4A502(c). § 13 pursuant to Pa.C.S.A. Sec- Pa.Super. A.2d Selig, v. 4A502(c)provides tion that: (1994), right of it had an automatic setoff (c) Payment issued orders to benefi- any steps not to need affirmative take
ciary’s beneficiary’s bank. —If a “Set-off, however, right. is effectuate payment has a order bank received appropriate only where certain conditions for ac- payment beneficiary’s to the mutuality are There must of obli met. be bank, following the count the gation deposi the and the between bank apply: rules tor; is against set-off ex the funds belong depositor; the ercised must to the (1) The bank credit the may beneficia- deposited the bank into funds must be with may ry’s account. The amount credited account; and, general by a the debt owed against obligation set off an owed be the to the must be ma depositor bank may the bank or be beneficiary to (citations omitted). ture.” at 744 Id. to applied satisfy process creditor respect on the with served bank case, it is 21 In the instant un account. disputed that the debt AFMC owed (2) may The bank credit the beneficia- (the to the Bank was mature at depositor) account ry’s and allow withdrawal of the Fund into AFMC’s time was wired creditor process amount credited unless mutuality account and that there a was respect the account is with served obligation between the Bank and AFMC. affording a time and in a manner Further, jury that AFMC’s determined a to act to bank reasonable opportunity general the Bank ac account with prevent withdrawal. Thus, it appear count. would (3) most conditions for If to Bank has met of the process respect creditor right of automatic setoff. exercising account has been beneficiary’s However, right of the had a critical element has a reason- served bank despite security the absence Although incorrectly suggest- interest the trial court loan RNG was bankruptcy approval. ed that Pioneer's secured court See Lobianco and, business, Protection, ordinary Inc., course of made in Pa.Super. Property therefore, bankruptcy ap- court needed (an no (1981) appellate court affirm, grounds, proval, we on albeit different trial if may the decision of the it is affirm Bankrupt- trial court's conclusion that grounds). any correct on cy Code does not mandate invalidation owned the against automatic setoff is that the funds assertion that AFMC Fund which setoff must must fail. belong is exercised issue, depositor. the jury On this un- argument 24 The next advanced equivocally found that Pioneer had an own- by the Bank court commit the trial ership interest in the Fund wired an error ted of law in its instructions. AFMC’s account with Bank. Since the followingportion cited the
jury determined Fund belonged that the to jury instruction: AFMC, Pioneer and not to the Bank could Now, a bank has a under the law right not exercise its of automatic setoff right account, account, debit freeze an against the Fund. purposes of debt from the collecting depositor ¶22 under limited circumstances. strenuously The Bank argues that One the mature. debt must be Well UCC, specifically, 13 Pa.C.S.A. under the circumstances this case the § de-emphasizes 4A502 ownership, elimi- *14 debt was mature. AFMC owed the nating requirement the that the funds money to for the overdrafts. CoreStates against which setoff is exercised must be- long money other condition is that the depositor. disagree. We belong must to AFMC. So it must Nothing in be language the of section 4A502 known that is or in CoreStates able to seize. Pennsylvania case law indicates or jury you’re That’s a going issue that to mandates that a Bank should not deter- answer: money, Was it or was mine AFMC’s whether belong deposi- the funds to a security plaintiff, there a in in interest tor Indeed, before setoff is exercised. if Funding? case Pioneer Commercial the ownership requirement were eliminat- ed, it would lead the to absurd conse- ***
quence whereby a Bank could effectuate if, one, You have to decide that an automatic setoff even when funds are these belonged funds to Pioneer aas mistakenly inadvertently or wired or de- creditor, superior secured which is a posited to the wrong account. We are creditor, right than an I unsecured persuaded by therefore not the Bank’s ar- you. discussed to You have make gument that of the issue the ownership of Question that decision. And in Number the Fund is irrelevant under 13 Pa.C.S.A. One, says: find that you Do the § 4A502 plaintiff ownership had this interest you about I which discussed with which ¶ 23 Interestingly, in another section of would have entitled them to the funds[?] (Bank’s brief, Brief, 24), at the Bank the yes answer would be no. argues that the evidence established that Brief, Bank’s at 30-31. AFMC owned the Fund and that aas result, interpreted 25 The Bank the requirements the Bank the met all above instructions to that “if for an mean automatic Pioneer point setoff. must creditor, awas secured CoreStates [the out argument that this emphasizes which to obligation Bank] had an release the alleged AFMC’s ownership the Fund is Fund.” at Id. inconsistent with Bank’s argument the
(bank’s
20-21)
Brief,
that ownership
instructions,
examining jury
When
our
the Fund is irrelevant under the UCC. As
scope of review is to determine whether
out,
found,
we previously pointed
jury
the
the trial court committed clear abuse of
evidence,
ample
based on
controlling
Pioneer
discretion or error of
the
law
Therefore,
owned the Fund.
outcome of
in a charge
Bank’s
the ease. Error
trial, if
in
ground
Corporation
ownership
is
had an
interest
sufficient
a new
charge
inadequate
as a whole is
or not
by
the funds wired
Norwest to American
clear
mislead or
tendency
or has a
to
Corporation’s
Mortgage
Financial
settle-
clarify
than
confuse rather
material ment account at defendant CoreStates
charge
adequate
issue. A
will be found
plaintiff
possession
Bank that entitled
unless
issues are not made clear to
Accordingly,
funds?”
find
de-
we
no
jury
or the
jury
palpably
misled
fect
instructions sufficient
judge
what the trial
or unless
said
warrant a
trial.
new
there
charge
is an omission
Applicability
Banking
of the
Code:
amounts
fundamental error. When
reviewing
charge
jury,
we will
27 Another issue raised
challenged
pas-
not take the
words or
applicability
relates to
sage
out of context
the whole
(Sec
Pennsylvania Adverse Claims Statute
charge,
charge
but must look to the
Banking
tion 606 of
Code
its entirety.
606).
§
it
The Bank
P.S.
maintains
Miller,
Bannar v.
it
entitled to
directed verdict because
(citations
(Pa.Super.1997)
quotation
con
statutory
had a
Pioneer’s
defense
omitted).
marks
claim, namely,
version
failure to
¶ Reviewing
argument
the Bank’s
pursuant
assert a claim to the Fund
standards,
light of
find
the above
we
*15
on
Relying
adverse claims statute.
Sec
trial
did not
an error of
court
commit
law.
Pioneer,
606(b),
argues
tion
the Bank
that
jury
After reviewing the trial court’s
in-
party seeking
as the
to make an adverse
entirety,
in their
we find
structions
that
claim,
required
was
to either
a de
obtain
the trial
the
properly
jury
court
instructed
right
in
claratory judgment
support of its
it
responsibility
that
is their
to determine
ownership
post
According
a bond.
ownership
whether
had an
Pioneer
interest
Bank,
the
because Pioneer failed to meet
it
only
and that
if
Fund
it is
Pioneer
a property
determined that
had
these two
Pioneer’s conver
requirements,
interest
in the Fund
Pioneer can
that
reviewing
must
After
the record
sion
fail.
maintain
action for conversion.
an
law,
applicable
disagree
we
must
pas-
refuse
certain
phrases
to isolate
the
cor
position.
Bank’s
As Pioneer
sages
jury
trial
from the
court’s
instruc-
out,
rectly points
Pennsylvania
the
Ad
interpret
tion and
them
context
out of
as
by a
applies
verse
to claims
Claims Statute
in
argument.
the Bank does
Further
de
party
third
adverse to
claim of a
suggests
following
the Bank
in-
indi
positor. The comment to Section 606
may
struction
have
misled
palpably
purpose
cates that the
is to
the statute
jury:
you’re
jury
going
“A
issue
answer
in disputes
limit the involvement of banks
money,
it AFMC’s
or was there
[is]: Was
In
depositors and third parties.
between
in
in
security
plaintiff,
a
interest
this case
bar,
Pioneer’s
to the
the case
claim
Pioneer
Funding?”
Commercial
deposi
Fund is not
to that of the
adverse
by
not
instruction
was
misled
above
tor,
Indeed,
outset,
at the
AFMC
AFMC.
and did
confuse
interests which
any
not
interest
unequivocally
any
disclaimed
AFMC
had in the Fund with
may have
Fund,
and told the Bank that the Fund
interest. The
understand-
Thus,
in
belonged to Pioneer.
the issues
ing
clearly
was
shown in its affirmative
implicate
do not
this case
volved
question:
you
“Do
following
answer to
find
claims
plaintiff
Funding
Pioneer Commercial
adverse
statute.
Brunos,
28 Both Pioneer and the Bank cite to
and interest on its
loan
on their
having
pay
different
Brunos
defaulted
parts of our Court’s decision in
Houghton
Doe,
appeal,
ments. On
relied on
Houghton
E.F.
& Co.
Pa.Su-
Bank,
(1993)
v. Fulton
342 Pa.
Sherts
Nat’l
per.
in support
out a Houghton court then obtained Based on our careful review of a writ of attachment. Before receiving Houghton, the agree we Pioneer with attachment, Bank, writ of Houghton Mellon withdrew from in- distinguishable is the from one of the Brunos’ accounts the sum case. In the Houghton, stant Brunos $151,481.88 representing Hough- the an in funds. principal claimed interest the Sherts, Sherts, depositor, signed "attorney.” In the who all checks He also is an attorney, checking maintained a account in maintained another account in the name "H. Sherts, Account,” Edgar the bank in in his individual name and subse- Farm which he quently, "attorney” added the word to the held funds for a decedent’s estate. The bank passbook ledg- applied name in the and on the bank’s later the in both accounts balances Thereafter, placed only payment er he overdue note sheets. collec- toward the of an owed account, personally tions Sherts bank. made clients and to the of conver- therefore ad- turned a verdict on the issue
ton’s claim to the.funds was Miller, in- interest. In the verse Brunos’ Bannar sion. See case, however, (where claim to the stant the (Pa.Super.1997) 241-242 trial depositor, Fund is not adverse to erroneously jury on civil charged court transfer, Shortly the wire AFMC. after with- conspiracy though plaintiff even had in promptly any AFMC disclaimed interest com- count of the conspiracy drawn and Bank that the Fund notified the the error harmless because plaint, was Also, belonged Fund when the Pioneer. was not on the verdict conspiracy reflected conjunction in above facts are considered jury of re- slip, incapable letters, accompanied the bailee which with count). In the turning a verdict on that case, in it clear that the notes case, liability, respect instant with *17 jury evidence of present Pioneer to the erroneously Pioneer permitted court discovery litigation the conduct and viola- cover allegations conspiracy make of and the Bank’s lawyers.9 tions of However, error up during the trial. this liability the respect is harmless with ¶ 33 decision whether to “The jury did not find the
verdict because the discovery violation party for a sanction for and the verdict conspiracy Bank liable severity the of a sanction are and such charge slip conspiracy did not contain the vested the sound discretion of on matters jury did not return a verdict court. not reverse a trial jury of re- the trial We will conspiracy. the issue litigation of conduct allegations The evidence the and 8. The issue of whether these af- discovery permitted for violations was also jury’s damages will fected the of be award purpose: outrageous con- another to show revisited later. (for damages) punitive the award of duct the Bank. circumstances, order a sanction un- under the and we find no imposing court’s such the trial court its less abused discretion.” abuse of discretion.
Luszczynski
Bradley, 729 A.2d
of another
35 Our review
discov
(citations omitted).
(Pa.Super.1999)
Un-
ery
by the trial court—
imposed
sanction
Rule
Pennsylvania
der
4019 of the
of
Rules
preclusion
testimony Attorney
the
of
of the
Procedure,
court may impose
Civil
a trial
Weir during the Bank’s case-in-chief—
for discovery
sanctions
violations. The
factors for trial
shows that the trial court did not abuse its
courts
consider when
determining an appropriate
Attorney
agent
sanction under
discretion.
as an
Weir
for
(1)
Bank,
Rule 4019 are as
the
follows:
part
parcel
nature
the
and
of the dis
violation; (2)
severity
discovery
and
covery
violations
issue
at
case.
defaulting
the
party’s willfulness or bad Therefore,
preclusion
testimony
the
his
faith; (3) prejudice
opposing
party;
discovery
is an appropriate
violations
(4)
ability
prejudice;
to cure the
Besides,
severity
sanction.
pre
(5)
importance
precluded
evi-
Attorney
testimony
clusion of
Weir’s
in light
dence
of the failure to comply. Id.
tempered by
that Attorney
the fact
Weir
(citations omitted).
at 87
testified
on
during
cross-examination
case-in-chief. The
also
thorough
34 After a
review
testimony
Attorney
elicited
from
Weir fol
the record and of the trial court’s rationale
lowing Pioneer’s
In
cross-examination.
es
light
for the sanctions in
of the above
sence, the trial
did not completely
court
factors, we cannot conclude that the trial
preclude Attorney
testimony. See
Weir’s
abused
court
its discretion. The Bank’s
12/4/2000,
Trial Court
Opinion,
18 n. 6.
willful,
discovery
repeated
violations were
in light
Viewed
of the five factors delineat
persistent.
The violations included
in Luszczynski, supra,
ed
we cannot con
withholding
documents,
of critical
fail
clude that the trial
abused its
ure to
court
discre
comply
requests
for documents
despite
partially
tion in
entry
precluding Attorney
of numerous discovery
orders, production
testimony.
of critical
on Weir’s
documents
trial,
the eve of trial and in the middle of
¶ 36 The Conduct Pioneer’s Tri
violations,
As a
etc.
result of these
Pio
al Counsel: The Bank contends
next
neer
prejudice, including,
suffered
but not
argument that
trial court improperly
to,
limited
financial costs. The trial court’s
permitted Pioneer’s trial counsel to in
sanction-—allowing
jury to
hear evi
jury
appeal
flame
and to
discovery
dence of the
violations—appears
prejudice.
The Bank
passion
cites to
However,
novel.10
it is not the most se
an instance when Pioneer’s counsel asked
sanction:
vere
the most severe sanction
testimony
if
a witness
his
was motivated
entry
would have been the
of a default
possibility that
would re
judgment against
express
Bank.
no
turn
verdict
the hundreds millions.
opinion as to the
of a de
appropriateness
*18
question
R.R. 2704a. The
was im
above
judgment given
mag
fault
the nature and
gave
court
proper,
prompt
of the
and the trial
nitude
Bank’s violations. The sanc
(R2704a -2705a;
imposed by
tion
court was
instructions
proper
trial
curative
circumstances,
Pennsylvania
Pennsylvania
Suggested
10. Under certain
instruction.
See
(Civil) 5.06;
permitted
Jury
jury
courts have
instructions re-
Standard
Instructions
410,
garding
party’s discovery
McHugh McHugh,
Pa.
40
a
violations such as
v.
186
A.
Corson,
(1898);
withholding
of
Paves v.
is not an or rehable measure general regarding Bank’s statement closely-held, thinly-traded of the value of a capitalization use of market as a valuation company and because Pioneer did not es- method, our review of the record shows tablish that the in capitali- decline market trial, that during damages phase wholly zation was attributable the Bank present did indeed alternative Fund, Bank’s seizure of the the amount of methods of valuation which were ultimate- consequential damages specula- was ly rejected jury. The Bank by the also agree tive. We with the Bank in that presented testimony expert of an wit- instances, some market capitalization alone opined ness who that the Bank’s seizure of cannot be used determine the value of a the Fund significant impact did not have a case, corporation. In the instant as the ability on the operate beyond of Pioneer to noted, testimony the trial showed Thus, pre- 1998. R.R. 2758a. we are not that Pioneer’s stock was traded over the sented with a situation where the Bank counter and that one investor owned a precluded presenting was from alternative controlling share of its securities. As methods of valuation. The Bank’s valua- such, the prices wildly stock fluctuated expert tion opinion methods and were sim- periodically. Although the price stock of a rejected ply while valuation thinly traded company may helpful be (market presented by method Pioneer cap- value, determining the company’s it should italization) accepted by jury. Sim- only not be the factor in that determina- ilarly, argument the Bank’s the drop that (1) tion. Other factors such as net asset capitalization in Pioneer’s wholly was not (2) value; (3) value; actual market and attributable to the Bank was considered investment value should also be consid- rejected such, jury. and As we find Bros., Inc., ered. See In re Glosser no reason to overturn the award (1989). Pa.Super. consequential damages. Bros, In In re Glosser our Court also noted that dealing “closely-held Damages. Punitive family brief, corporations having Throughout unlisted stocks the Bank repeatedly therefore, market, and no public shares per maintains Pioneer’s counsel was are infrequently sold too inflammatory arguments market value mitted to make play any part proceedings.” allegations ultimately these resulted in 135, citing Id. at Appeal, passion prejudice.12 O’Connor 452 Pa. a verdict based on addition, closing argu- 12. Counsel for Pioneer in his In Pioneer’s counsel baited the suggested ments the Bank commitled jury by implying that was a Goli- CoreStates crimes, repeatedly called Bank’s David, witnesses philanthropic ath and ask- Pioneer "liars,” compared "thug” the Bank to a and a ing: you peo- "How could not care about the "gangster” "knowingly that would steal to ple you not care at RNG? How could all engage kiting, allow customer to to milk stating about all of those families?” and with- fees, it for then last second ... shut it government out foundation: had the "[W]e just say going anybody’s down and I’m to take loans, buyers, home the veter- the first time money I can.” R.R. 2328a-2329a. *20 290 the wealth of the defendant. Kirkbride agree only respect with the Bank with Contractors, Inc., 97, v. Lisbon jury’s punitive damages. 521 Pa. award (1989) 800, jury appro 102, of a is (citing
Judicial reduction
award
555 A.2d
(Second)
ex
priate only
plainly
when the award is
Restatement
Torts
Co.,
exorbitant,
908(2)).
§
cessive and
when it shocks the
Accord Tunis Brothers
Co.,
justice
jury
suggest
715,
sense of
as to
that the
Inc. v. Ford Motor
952 F.2d
(3d
by partiality, prejudice,
was influenced
Cir.1991),
denied,
740-41
cert.
Haines v. Raven
mistake,
corruption.
1221,
3034,
120 L.Ed.2d
U.S.
S.Ct.
Arms,
367,
(1992)
law).
536 Pa.
(applying Pennsylvania
(1994).
jury
given
A
latitude to
wide
weigh
It is for the
to
these factors
Neison v.
damages.
fashion a verdict on
in arriving
appropriate punitive
at an
Hines,
(1995).
539 Pa.
ages
Pennsylvania
are measured in
re-
for a new
or for a remittitur under
quires analysis
following
by
of the
factors:
which the
con
usual rules
courts
(1)
act;
(2)
compensatory
the character of the
trol
award of
(3)
harm;
See Restatement
nature and
of Torts
damages.
extent
and
kite,
people
they
allowing
ans. Those are the
that we lent our
cause what
did in
fees,
money
They
milking
to.
don't have one shred of re-
it for
both the bank and then
morse,
("What
humanity
just
lawyer”),
they
one bit of
about
how
R. 2329a
did was vi-
cious,
up
many
got
upside
they
to
it
lives
turned
down.” R.
and
knew it. And
cover
it,
way they
2849a. Counsel claimed that one witness had
and to lie about
and to behave the
have,
criminal,
testimony
by
fabricated his
because
the time
I don’t
if it’s
but I know
know
(R.
outrageous”),
("They
of trial
had been hired
First Union
it’s
R. 2337a-2338a
let a
he
2833a)
kiting
go
and that C.B. Cook and Walter Weir
check
scheme
on at CoreStates for
1997”),
("think
"people dealing
integrity”
why
were not
and
all of
R. 2341a
about
it’s
caught conspiring
stealing
despicable,
only
"were
and
mon-
so
that not
did a bank do
ey.”
examples,
something
For other
R. 2837a-
that it knew was a violation of
see
2838a,
("this
working
permit
engage
to
R. 2298a
deal that was
federal law and
its customer
criminal,
steal
it calls
but when it
until CoreStates came in and decided to
conduct which
back”),
("corrupt practice, prac-
money
get
money”), R. 2300a
steals Pioneer’s
it
R.
fraud,
fraud,
(reference
racketeering,
guy
bank
2834a
to witness: "The
was
tices in
mail
***
lying
lying
protect
of both civil
criminal acts
He
whole host
and
was
his new
they
allowing
milking
employer,
they’ve
they
got
were
and
for
because
know
live
risk”),
("Their
customer,
get
fees. We’ll
to the fees that Mr. Weir
R. 2835a
own
well”),
("the
every
milked it for as
R. 2308a
seven
crook who had
reason in the world to
***
got
part
say
my money
going
pay
court orders I
the let’s
it’s
because it's
[are]
death,
debt”),
("it's
R. 2842a
more of this
stone wall them to
let’s hide what
down his
***
litigation
drag
doing
they
approach
they
we've been
because what
did is
have
ambush”),
despicable.
they
R. 2848a-
What
did is unethical.
It
it all out
trial
machine,
And,
("this
hiding
greed
drag
outrageous.
they
were
2849a
is a vicious
And, they got
long
they possibly
No
among every
they
front
it out as
can.
could.
about”),
heart”),
("what
("They
they
2322a-2323a
R. 2852a
did was diaboli-
lot
hide
R.
agenda”),
put
many
cal
vicious little
R.
on Walter Weir. How
lies did we
...
that kind of
***
lies,
("When
2858a
does a bank steal? Steal.
catch him in?
Those are boldface
again, they're
they
That's what
did. That’s what conversion
and he knows it. But then
is”),
("as
cover”),
("There
you: They
running
2867a-2868a
I’ve told
R. 2326a
is no
R.
personal integrity”).
despicable
outrageous their
don’t have
limit to how
Brief,
They’ll go
any lengths, be-
Bank’s
at 45 n. 19.
behavior is.
*21
291
(Second)
(function
908,
damages
involving
§
in a
punitive
comment d
lion
case
However,
dispute
of about
million. Conse
jury).
judge may
$1.8
a trial
not
quently,
granted
the trial court
the bank’s
a punitive damages
declare
verdict to be
remittitur, reducing
puni
request for a
simply
excessive
because he or she
damages
tive
award to
million.
$40.5
might have awarded a lesser amount.
However,
remitted
we find
Bank,
Sulecki v. Southeast National
358
bears no reasonable relation
amount still
132, 138,
1217,
Pa.Super.
516 A.2d
1220
ship
wrongful
to the
conduct.13 Counsel
(1986) (en banc).
arguments prejudicial
cannot make
Walter,
1,
Sprague v.
441 Pa.Super.
656
party
by
which are not
opposing
supported
(1995).
can,
A.2d 890
An appellate court
evidence,
inflammato
facts
or
are
upon proper basis and reason find that the
ry
beyond
of fair or sound
or
the limits
trial court has
abused its discretion
argument, unduly
or distract
influencing
upholding
either
or remitting damages.
See,
ing
jury.
e.g.,
Girard Trust Corn
According
Id. 929-930.
to the United
Exchange
Philadelphia Transp.
Bank v.
Court,
Supreme
judicial
States
review
Co.,
530,
(1963);
410 Pa.
matory allegations
and accusations
Pio
necessarily
neer’s counsel
influenced the
46 Another basis
our de
an
mil-
dam-
punitive
award of
astronomical
cision to vacate the award
$337
Walter,
can,
remitting damages.
appellate
upon proper
Sprague
court
13. An
basis
(1995).
and reason find
the trial court has
Pa.Super.
929-930
upholding
abused its discretion in
either
ages
gard
argument regarding
is the Due
to the Bank’s
Process Clause
A
dam-
proportionality
punitive
Fourteenth Amendment.
decision to
punish
by exacting punitive
damages,
a tortfeasor
ages
compensatory
we
law,
damages
power
is an exercise of State
Pennsylvania
punitive
note that under
*22
comply
which must
with the Due Process
damages
no
rela-
proportional
need bear
Clause of the Fourteenth Amendment.
damages
tionship
compensatory
to the
Honda,
2335,
2331,
¶ in part 50 Affirmed reversed strument law or the law of check collec- part. Remanded new trial with re- satisfactory tion have not ... The been spect punitive damages. Jurisdiction emerge represent that a careful rules relinquished. balancing and delicate of interests and BECK, are intended to be the exclusive means Dissenting J. files Opinion. duties, determining the rights, BECK, DISSENTING OPINION BY J. parties any liabilities of the affected ¶ 1 I respectfully dissent from ma- by particular provi- situation covered jority’s decision to affirm judgment the Article. Consequently, sions of re- regard to liability for I conversion. principles equity sort to of law or out- believe the common law cause action of appropriate side of Article 4A is not inapplicable. conversion is This case is con- rights, create duties and incon- liabilities by trolled Article 4A of the Uniform Com- sistent with those stated in the Article. Code, governs mercial proce- 4A-102, § Official U.C.C. Comment. dures, rights, arising and liabilities out of commercial electronic funds transfers. Furthermore, many courts have The AFMC Funds Transfers issue were claims, found that common law such as clearly 4A, governed by Article which au- conversion, are when such precluded thorized CoreStates’s conduct in accepting impose liability claims would inconsistent and setting off the Funds Transfer. Con- rights expressly with the and liabilities trary conclusion, to the majority’s I believe See, by e.g. created Article 4A. Grain rights CoreStates acted within its un- (2d Citibank, Traders, v. F.3d 97 Inc. der Article 4A-502 agree because I with Cir.1998) (finding plaintiffs claim for CoreStates that ultimate ownership of the under state’s precluded conversion was funds is not relevant under Article 4A. commercial code as inconsistent with com Moreover, common law principles of own- code); mercial Banco de la Provincia de ership vary from ill- state to state are N.A., BayBank Boston Buenos Aires regulation suited for the national finan- (S.D.N.Y.1997) (stating F.Supp. cial institutions. it cannot that for conversion claim to stand
¶ 2 position The that the controls U.C.C. 4A); Article Cumis be inconsistent with supported by this case is the Official Com- (921 Citibank, N.A., Soc., Inc. v. Ins. 4A-102 ment Section which states that 1100) (S.D.N.Y.1996) F.Supp. (finding [bjefore for conversion failed because bank’s this Article drafted there claim authorized Arti body expressly actions were comprehensive was no of law— 4A). statutory judicial cle defined —that policy reasons un- There are sound 4A
derlying the conclusion that Article provisions inconsistent of state
pre-empts Having method of trans-
law. a uniform
ferring provides funds a national set of system regulations giving
rules and
discipline, stability, predictability, efficien-
cy, finality. integrity liquidity complex system compromised be will 4A
if inconsistent with Article state actions institu- permitted against participating
are If has established an
tions. the U.C.C.
imperfect vehicle for the transfer funds proper
then the course is to amend the than the effective- impair
U.C.C. rather system injecting
ness of the inconsis-
tent common law tort actions. *24 NORTON, III, Alan M.
James B. Wolfe Marlowe James J.
v. GLENN, Sr., Troy T. Publish
William
ing Company, Inc., Kennedy Tom M.
and William Caufield
Appeal of: Alan M. Wolfe. Wolfe, Norton, III, M.
James B. Alan
and James J. Marlowe Glenn, Sr., Troy Publishing T.
William
Company, Inc., Kennedy Tom
William M. Caufield Norton,
Appeal B. III. of: James Pennsylvania.
Superior Court Dec. 2001.
Argued 18, 2002.
Filed March
Reargument May Denied notes lender, complex arrangement ad Pioneer As a warehouse neer. Bank One to AFMC sent from that RNG could would be money vanced to RNG so docket that the notation on the acquired by Un- clerk makes First 1. CoreStates Bank
Notes
notes wired $2.1 other funds to the account on two above million to AFMC’s account at the Bank. other occasions: November This place wire transfer took on November ($209,984.33), and November 4, 1997. Norwest to wired funds ($114,835.86). The amounts wired Nor- AFMC’s despite account the parties’ to AFMC’s at the to- west account Bank agreement and understanding (the Fund). $1,779,519.99 taled Part funds be directly should wired to Pioneer’s remaining was payment amount Shortly account at Bank One. after learn- First while Portfolio the remainder ing that Norwest did not wire the funds applied payment to the for the Second expected account, RNG, an official Portfolio. Hotz, Melanie and Klein of Pio- Glenda RNG, neer, Pioneer, quickly Unbeknownst informed AFMC of this situ- One, result, ation. AFMC had become indebted requested As AFMC through Bank to ac- the Bank of million wire funds excess $4 count at Bank Bank promptly One. The overdrafts. On 1997 the November you holding 4. The bailee letter stated as deemed to be follows: "The are collateral trust, enclosed notes ("collateral”) ... and other subject security documenls granted interest assigned ... have been agent first to borrower and then for lenders (a) pledged Funding Pioneer Commercial agent’s and as bailee in accordance with ("borrower”) Corp., as collateral under a loan applicable provisions of the Com- Uniform security agreement.... The collateral Payment Code.... for collateral must mercial
of the above notes timony of conversion under the classic definition accompa- the Fund were generated deprivation of Pennsylvania law is the indicated that in, by bailee letters which or nied right property or use another’s of owned the notes of, chattel, Pioneer and Bank One inter- a or other possession Aso, the notes. therewith, proceeds without the- owner’s ference to shortly the Fund was wired justification. after consent and without lawful Bank, at the Pioneer and of control over the AFMC’s account Athough the exercise intentional, that the Fund the tort of notified the Bank chattel must be Norwest Pioneer; to proof belong does not rest on to AFMC but conversion did not AFMC, wrong. Moffitt, a It is specific intent to commit counsel for also and David faith good purchaser writing fundamental that a that the Fund notified the Bank is also a con- goods Additionally, from a converter to Pioneer. we belonged damages verter and must answer proceeds of the First note that when the general rule for the true owner. wed to AFMC’s account Portfolio were purchaser is that “a bona fide chattels Bank, notified promptly the Bank was This is so gets nothing.” from a thief belong AFMC money that the did not a has no title to the ado, because converter much Pioneer. Without but to chattels, convey nothing can and thus money to be wired to permitted Bank for value. purchaser a bona fide Texas. Pioneer’s account with One proceeds what occurred with (citations Given omit- quotation marks Id. Portfolio, testimony of the First ted). transactions, in the the bailee participants noted that 14 It must also be evidence, documentary and other letters subject of conversion. money may be the sufficient evidence was conclude that we Oswell, A.2d at supra, Shonberger find- support at trial to adduced complaint alleged Since belonged Fund to Pioneer. ing that the tort of con that the Bank committed Fund, á respect version with Bankruptcy Applicability of the Code: matter, must determine threshold we that it had a Pioneer established whether under argues The Bank ¶ 16 Fund at respect to the right with property Code, filing of bank Bankruptcy It is alleged conversion. the time of all extinguished pre-peti ruptcy petition that one has only after it is determined prop security interests as grants tion inquiry an in a chattel that property right post petition. U.S.C. erty acquired there has be made as to whether must 552(a). that since § The Bank maintains of, or an interference deprivation been in Au bankruptcy petition RNG filed its conversion. right to constitute with that Port and Second and the First gust RNG loans made fa folios contained light most 15 Viewed winner, (post-petition and November 1997 Pioneer, October as the verdict vorable to loans), subject to the loans cannot be these support was sufficient evidence there by May created security interest that Pioneer jury’s determination agreement (pre-petition agreement). The prop- abled debtors obtain deed trust
notes proceeds notes and the were egregious the trial court’s error was less the benefit of being held trust or for court, Bannar, the trial unlike because and Bank The Funds never Pioneer One. not instruct on issue of did Thus, belonged to similar AFMC. Thus, conspiracy. any error which the Sherts, deposit- Fund in this case was permit- may court trial have committed for the benefit of ed into AFMC’s account ting allegations conspiracy cover-up and ac- party, third owner of the finding of respect is harmless with count, any AFMC interest disclaimed liability.8 Apart allegations these from analysis, foregoing the Fund. Based on the evi- cover-up, sufficient conspiracy that the entitled hold Bank is not we support the dence was adduced to the Bank- pursuant relief Section 606 of on issue of conversion. verdict ing Code. Judge’s Discovery The Bank’s The Trial at the Trial: Sanctions: Conduct trial arguments next concern the court’s Allegations conspiracy. It is the imposition discovery sanctions. im argues The Bank the trial court the trial court abused position Bank’s in properly permitted Pioneer to make when, discovery its discretion as a sanction flammatory allegations that the Bank was Bank, against precluded Attorney it guilty conspiracy cover-up, based Weir, the former counsel Bank’s Walter Agreement on the Workout between the takes testifying. from The Bank also AFMC, the com though Bank and even position respect trial similar conspira never set forth a claim for plaint sanction, permitted discovery court’s cy. agree with the Bank that the trial