Windsor Twp. v. Tompkins Financial Corp. t/d/b/a VIST Bank

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Windsor Township :
:
v. : No. 592 C.D. 2021
:
Tompkins Financial Corporation :
t/d/b/a VIST Bank, :
Appellant : Argued: September 15, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: October 18, 2022
Appellant Tompkins Financial Corporation t/d/b/a VIST Bank (VIST) appeals
from the Court of Common Pleas of Berks County’s (Common Pleas) May 3, 2021
order, through which Common Pleas denied VIST’s Motion for Judgment on the
Pleadings (Motion) and granted Appellee Windsor Township’s (Township) Cross-
Motion for Judgment on the Pleadings (Cross-Motion). In doing so, Common Pleas
directed VIST to honor a copy of a letter of credit (Letter) provided by the Township
and, as a result, to disburse funds to the Township that were secured by that Letter.
We reverse and remand.
I. Background
The relevant facts are as follows. In July 2004, Greth Development Group,
Inc., (Greth) filed a subdivision plan with the Township, through which it sought
permission to build 48 townhouses on a roughly 8.5-acre plot of land in the
Township (Property), for what would ultimately be known as the “Towns at
Kaercher Creek.” Compl. ¶¶3-4; Reproduced Record (R.R.) at 4a-5a. In July 2006,
the Township gave final approval to Greth’s plan and, in September 2006, the two
entities signed a document titled “Towns at Kaercher Creek Subdivision
Improvements Agreement” (Agreement), through which Greth agreed to take a
number of steps in order to move forward with constructing this development.
Compl. ¶¶5-6; R.R. at 5a. Included in this Agreement were two requirements that
are of relevance to this matter. The first obligated Greth to complete all mandated
improvements for the development within one year. Compl. ¶7, Ex. C ¶4; R.R. at 5a,
14a. The second obligated Greth to obtain a letter of credit that covered the full
estimated cost for the development’s improvement, which the Township would be
authorized to draw upon in the event that Greth defaulted on the Agreement. See
Compl. ¶12, Ex. C ¶6; R.R. at 6a, 15a.1
Greth satisfied the second requirement by securing the Letter from Leesport
Bank (Leesport), VIST’s predecessor. Compl. ¶12, Ex. F; R.R. at 6a, 28a-29a;
VIST’s Answer with New Matter ¶17.2 By its express terms, the Letter, and the
Township’s ability to draw thereon, were subject to the following conditions:
1. This Letter shall be valid until the expiration date of
September 28, 2007, and shall thereafter be automatically
extended for successive one-year periods from the present
or any future expiration date, unless at least thirty (30)
days prior to any such expiration date [Leesport notifies
the Township] in writing . . . , that [Leesport] elect[s] not
to so extend this Letter. Upon receipt by [the Township]
of such notice [the Township] may draw hereunder by [the
1
The letter of credit was required to “have an expiration date of at least one year from the
date of [the] Agreement[.]” Compl., Ex. C ¶6; R.R. at 15a.
2
All citations to and discussion of the Letter’s substance refer to the version in this matter’s
record, which is conspicuously stamped “COPY.” See R.R. at 28a. VIST both disputes the
assertion that the document provided by the Township is an exact copy of the original Letter and,
in addition, maintains that it is immaterial whether it was, in fact, an exact copy. See VIST’s Br.
at 13 n.5.
2
Township’s] draft at sight on [Leesport], accompanied by
[an] Affidavit [that Greth has defaulted on the Agreement]
and [a] Statement [that Greth is still liable for its
obligations under the Agreement].
2. This Letter will be honored upon presentation of drafts
drawn hereunder when accompanied by the
aforementioned Affidavit and Statement, if presented to
[Leesport] at [its] office at 1240 Broadcasting Road, PO
Box 6219, Wyomissing, PA 19610, on or before the
[Letter’s] expiration date.
3. All such drafts drawn under this Letter must be marked
“Drawn under Leesport Bank, Letter of Credit No. 111.”
4. The original Letter and all amendments, if any, shall be
presented at the time of any drawings. Multiple drawings
are permitted hereunder.
5. Except so far as otherwise expressly stated herein, this
Letter . . . is subject to the “Uniform Customs and Practices
for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500” (“UCP”),
and to the Uniform Commercial Code of Pennsylvania, 13
P.S. [§] 5101 et seq.[3] (“UCC”), and as otherwise
interpreted, under Pennsylvania [l]aw. To the extent, if
any, that there is a conflict of provisions between the
applicable sections of the UCP and the UCC, the
provisions of the UCP shall prevail.
Any drafts drawn under and in compliance with the terms
and conditions of this Letter will be duly honored by
[Leesport] on presentation of documents as specified if
presented on or before the [Letter’s] expiration date.
R.R. at 28a-29a (emphasis added).
Greth, however, did not fulfill its obligations under the first requirement, in
that it failed to complete all of the development’s required improvements within
twelve months of entering into the Agreement with the Township. Compl. ¶¶8-9;
R.R. at 5a-6a. Years passed without any apparent action, until the Township
3
This is undoubtedly a scrivener’s error, as this portion of the UCC is codified as 13 Pa.
C.S. §§ 5101-5118, rather than in Purdon’s Pennsylvania Statutes.
3
eventually sued both Greth and Kazzoe, LLC, Greth’s successor-in-interest.4 See
R.R. at 30a; VIST’s Br. at 19 n.7. Separately, on October 18, 2019, the Township
sent a demand to VIST, through which it requested that VIST honor the Letter and
provide the Township with sufficient capital to finish those improvements. Compl.
¶13, Ex. G; R.R. at 7a, 30a-31a.5 VIST declined to do so and, on July 9, 2020, in an
effort to vindicate its right to draw funds under the Letter, the Township filed suit
against VIST. Compl. ¶¶14-15; R.R. at 7a.
VIST answered the Township’s Complaint and followed on February 16,
2021, with its Motion. VIST argued in the Motion that it was entitled to judgment
on the pleadings in its favor because, per the Letter’s terms, the Township could only
draw upon the underlying funds if it presented VIST with the original Letter itself,
but, by its own admission, the Township was no longer in possession of the original
and had only presented VIST with a copy thereof. Motion ¶¶3-45; R.R. at 50a-58a.
On March 8, 2021, the Township responded in opposition to the Motion and, in
addition, submitted its Cross-Motion. In the Cross-Motion, the Township admitted
that it had “misplaced” the original Letter, but argued that it was allowed to present
VIST with an exact copy, as it had already done, in order to draw upon the money
secured by that Letter. Cross-Motion ¶¶46-52; R.R. at 86a-88a.
Common Pleas then held oral argument regarding both motions on April 13,
2021, and, on May 3, 2021, issued an order through which it denied VIST’s Motion
and granted the Township’s Cross-Motion. VIST responded by appealing Common
4
Greth conveyed portions of the Property to Kazzoe, LLC, in 2013. Compl. ¶11, Ex. E;
R.R. at 6a. The Township subsequently sued both Greth and Kazzoe, LLC for breaching the
Agreement’s terms. See R.R. at 30a; VIST’s Br. at 19 n.7.
5
The Township claims that it repeatedly notified VIST of its desire to draw on the Letter,
but the record does not specifically point to when those other alleged communications occurred.
See Compl. ¶13, Ex. G; R.R. at 7a, 30a.
4
Pleas’ adjudication to our Court. Thereafter, Common Pleas released an opinion on
September 7, 2021, through which it took the position that the Township was not
required to strictly comply with the Letter’s terms and, instead, that the Township’s
presentation of an exact copy of the Letter, rather than the admittedly misplaced
original, was both permissible and entitled the Township to payment thereon by
VIST. Common Pleas Op., 9/7/21, at 3-5; R.R. at 179a-81a.
II. Discussion
On appeal, VIST presents two arguments that we summarize as follows. First,
Common Pleas erred by both denying VIST’s Motion and granting the Township’s
Cross-Motion, as, in deeming it permissible for the Township to present a copy of
the Letter in the original’s stead, Common Pleas improperly disregarded the UCC’s
strict compliance requirement and, instead, wrongly applied precepts from contract
law. VIST’s Br. at 15-32. Second, in the alternative, Common Pleas has yet to rule
upon the vast majority of affirmative defenses raised by VIST in its Answer with
New Matter and, consequently, Common Pleas’ decision to grant judgment on the
pleadings in the Township’s favor was premature at best. Id. at 32-35.
A motion for judgment on the pleadings should be granted
only where the pleadings demonstrate that no genuine
issue of fact exists and the moving party is entitled to
judgment as a matter of law. Hammerstein v. Lindsay,
M.D., . . . 655 A.2d 597, 600 ([Pa. Super.] 1995). In
reviewing [a] trial court’s decision to grant judgment on
the pleadings, the scope of review of [an] appellate court
is plenary; [the] reviewing court must determine if the
action of [the] trial court was based on clear error of law
or whether there were facts disclosed by pleadings which
should properly go to the jury. An appellate court must
accept as true all well-pleaded facts of the party against
whom the motion is made, while considering against him
only those facts which he specifically admits. Neither
party can be deemed to have admitted either conclusions
of law or unjustified inferences. Id. at 600-601.
5
In conducting its inquiry, [a] court should confine itself to
the pleadings themselves and any documents or exhibits
properly attached to them. Only when the moving party’s
case is so clear and free from doubt such that a trial would
prove fruitless will an appellate court affirm a [lower
court’s ruling on a] motion for judgment on the pleadings.
Id. at 601.
Newberry Twp. v. Stambaugh, 848 A.2d 173, 175 n.1 (Pa. Cmwlth. 2004).
In this situation, it is undisputed that the Letter expressly mandated that the
Township had to present the original Letter to VIST (as Leesport’s successor entity)
in order to draw upon the underlying funds, as well as that the Township instead
offered up what is purported to be an exact copy of that Letter. Thus, the salient
question before us is whether the Township’s failure to provide VIST with the
original Letter prevents it from compelling VIST to disburse any monies. We hold
that it does.
By its own terms, the Letter is a letter of credit that is governed by both Article
5 of the UCC, which, as already noted, is codified in Pennsylvania as 13 Pa. C.S. §§
5101-5118, and by the “Uniform Customs and Practices for Documentary Credits
(1993 Revision), International Chamber of Commerce Publication No. 500[,]”
otherwise known as the UCP. See R.R. at 28a-29a.6 As has been explained by the
Superior Court,
6
Section 5102 of the UCC defines “letter of credit” as “[a] definite undertaking that
satisfies the requirements of [S]ection 5104 [of the UCC, 13 Pa. C.S. § 5104,] (relating to formal
requirements) by an issuer to a beneficiary at the request or for the account of an applicant or, in
the case of a financial institution, to itself or for its own account, to honor a documentary
presentation by payment or delivery of an item of value.” 13 Pa. C.S. § 5102. In turn, Section 5104
states that “[a] letter of credit . . . may be issued in any form that is a record and is authenticated:
(1) by a signature; or (2) in accordance with the agreement of the parties or the standard practice
referred to in section 5108(e) [of the UCC, 13 Pa. C.S. 5108(e), (relating to standard practice). 13
Pa. C.S. § 5104. With regard to “standard practice,” Section 5108(e) mandates that “[a]n issuer
shall observe standard practice of financial institutions that regularly issue letters of credit.” 13 Pa.
C.S. § 5108(e).
6
a letter of credit is “[a]n engagement by a bank or other
person made at the request of a customer and of a kind
... that the issuer will honor drafts or other demands for
payment upon compliance with the conditions specified in
the credit.” 13 Pa. C.S. § 5103(a). Thus, a transaction
involving a letter of credit encompasses at least three
distinct agreements: 1) the underlying contract between
the customer and the beneficiary, the person entitled to
demand payment; 2) the contract between the bank and its
customer relating to both the issuance of the letter of credit
and the reimbursement of the bank upon honoring a
demand for payment; and 3) the letter of credit obligating
the bank to pay the beneficiary. See Sound of Mkt. St. v.
Continental Bank Int’l, 819 F.2d 384 (3d Cir.1987)
(applying Pennsylvania law).
Moreover, the primary purpose of a letter of credit is to
provide the assurance of prompt payment upon the
presentation of documents. See Intraworld Indus. v.
Girard Trust Bank, . . . 336 A.2d 316 (Pa. 1975). The
issuing bank’s obligation under the letter of credit is
independent from the other agreements and arises only
upon the presentation of documents which conform to the
requirements of the letter of credit. See [id.] (issuer deals
only in documents and must honor demand for payment if
documents conform with letter of credit); Sound of Mkt.
St. v. Continental Bank Int’l, supra, 819 F.2d 384 (the
three agreements created by letter of credit transaction
remain distinct); Five Star Parking v. Phila. Parking
Auth., 703 F.Supp. 20 (E.D.Pa.1989) (obligation under
letter of credit separate and distinct from any contract or
course of dealing between bank’s customer and
beneficiary of letter of credit; issuer charged only with
reviewing documents to determine if they conform with
the requirements of the letter of credit).
Samuel Rappaport Fam. P’ship v. Meridian Bank, 657 A.2d 17, 21 (Pa. Super.
1995);7 accord Mun. Auth. of Hazle Twp. v. First Liberty Bank & Tr., (Pa. Cmwlth.
7
“In general, Superior Court decisions are not binding on this Court, but they offer
persuasive precedent where they address analogous issues.” Lerch v. Unemployment Comp. Bd. of
Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
7
No. 211 C.D. 2008, filed Jan. 2, 2009), slip op. at 9-17, 2009 WL 9096534, at *5-
*9.8 Per Section 5108(a) of the UCC,
[e]xcept as otherwise provided in [S]ection 5109 [of the
UCC] (relating to fraud and forgery), an issuer shall honor
a presentation that, as determined by the standard practice
referred to in subsection (e), appears on its face strictly to
comply with the terms and conditions of the letter of
credit. Except as otherwise provided in [S]ection 5113 [of
the UCC] (relating to transfer by operation of law) and
unless otherwise agreed with the applicant, an issuer shall
dishonor a presentation that does not appear so to comply.
13 Pa. C.S. § 5108(a) (emphasis added). In short, the watchword for letters of credit,
and the duties they create, is strict compliance.
[E]ssential to the viability of this device is the certainty
that it provides. Just as the beneficiary is induced to enter
the underlying transaction because it is assured payment
under specific terms agreeable to it, so too the bank
assumes a primary obligation in part because its
commitment is clearly defined within the four corners of
the letter. If courts deviate from the rule of strict
compliance and insist in certain undefined situations that
banks make payments notwithstanding the fact that the
beneficiary failed to comply with the terms stipulated in
the letter of credit, the certainty that makes this device so
attractive and useful may well be undermined, with the
result that banks may become reluctant to assume the
additional risks of litigation.
Ins. Co. of N. Am. v. Heritage Bank, N.A., 595 F.2d 171, 176 (3d Cir. 1979).9
Furthermore, and in keeping with this strict compliance standard, the fundamental
8
Unreported Commonwealth Court opinions issued after January 15, 2008, may be cited
for their persuasive value. See Internal Operating Procedures of the Commonwealth Court Section
414(a), 210 Pa. Code § 69.414(a).
9
Though we are not bound to follow decisions issued by inferior federal courts as binding
precedent, we may nevertheless consider them where relevant as persuasive authority. See Upper
Gwynedd Towamencin Mun. Auth. v. Dep’t of Env’t Prot., 9 A.3d 255, 259 n.4 (Pa. Cmwlth. 2010).
8
nature of letters of credit renders them distinct from normal contractual agreements
and it is the rule, rather than the exception, that such letters largely stand beyond the
reach of contract law.
Generally, under the [UCC], the law of contracts may be
utilized to supplement the law relating to letters of credit
as long as it does not interfere with the unique nature of
letters of credit. . . . Consequently, rules of contract
interpretation which are not inconsistent with the nature of
letters of credit may be utilized to examine the terms of a
letter of credit, determine whether they are ambiguous,
and resolve any perceived ambiguity.
Rappaport, 657 A.2d at 21 (citation omitted).
In this instance, paragraph four of the Letter expressly establishes that “[t]he
original Letter and all amendments, if any, shall be presented at the time of any
drawings.” R.R. at 29a. This requirement, which was imposed upon the Township
by virtue of the Letter’s plain and unambiguous language, obligates the Township
to submit the original Letter to VIST in order to draw upon the funds secured
thereby. Id. Therefore, the Township could neither avail itself of contract law’s more
relaxed dictates in this instance, nor present a copy of the Letter to VIST in the
original’s stead, and Common Pleas erred by concluding otherwise.10 See Grunwald
10
In doing so, Common Pleas improperly relied upon two Superior Court cases, and one
from the United States Court of Appeals for the First Circuit. The Superior Court cases, Bobby D.
Associates v. Dimarcantonio, 751 A.2d 673 (Pa. Super. 2000), and Hera v. McCormick, 625 A.2d
682 (Pa.Super. 1993), respectively addressed situations involving a lost promissory note and the
validity of an inter vivos gift, but had nothing to do with letters of credit or their unique
characteristics. As for Flagship Cruises, Ltd. v. New England Merchants National Bank of Boston,
the First Circuit’s reasoning in that matter is highly questionable, as it disregards the nature of
letters of credit by using a substantial compliance rule, rather than the proper, aforementioned strict
compliance standard. 569 F.2d 699, 705 (1st Cir. 1978); see Ins. Co. of N. Am., 595 F.2d at 175(cleaned up and footnotes omitted) (“We are aware that some authorities have taken the position
that the rule of strict compliance ought to be tempered to some extent.[] This Court, however, has
already cast its lot with the majority who fear that the sacred cow of equity may trample the tender
(Footnote continued on next page…)
9
v. Wells Fargo Bank, N.A., 725 N.W.2d 324, 329 (Iowa Ct. App. 2005); Bisker v.
NationsBank, N.A., 686 A.2d 561, 566-67 (D.C. 1996); Airlines Reporting Corp. v.
Norwest Bank, N.A., 529 N.W.2d 449, 451 (Minn. Ct. App. 1995); Brul v.
MidAmerican Bank & Tr. Co., 820 F. Supp. 1311, 1312-15 (D. Kan. 1993).11
Nor does the UCP compel a different conclusion. Per Article 20(b) of the
UCP, “[u]nless otherwise stipulated in the [letter of c]redit, banks will also accept
as an original document(s), a document(s) produced or appearing to have been
produced: (i) by reprographic, automated or computerized systems; [or] (ii) as
carbon copies; provided that it is marked as original and, where necessary, appears
to be signed.” UCP, art. 20(b) (emphasis added). Here, the Letter expressly
establishes that the Township is required to submit the original Letter and cannot
draw upon the monies secured thereby without it. See R.R. at 29a. Thus, even under
the UCP, the Township would not be allowed to substitute a copy of the Letter for
the original.12
vines of letter-of-credit law[] and therefore maintain that there is no room for documents which
are almost the same, or which will do just as well.”). Furthermore, it bears mentioning that the
beneficiary in Flagship Cruises presented the original letter of credit when it demanded payment
thereon and that the salient issue in that matter was whether that demand had been made in a timely
manner. See 569 F.2d at 701-02. Flagship Cruises is thus both of dubious value from an analytical
standpoint and distinguishable on the facts.
11
“While it is a truism that decisions [issued by] sister states[’ courts] are not binding
precedent on [the courts of our Commonwealth], they may be persuasive authority . . . and are
entitled to even greater deference where consistency and uniformity of application are essential
elements of a comprehensive statutory scheme like that contemplated by the [UCC].” Com. v. Nat’l
Bank & Tr. Co. of Cent. Pa., 364 A.2d 1331, 1335 (Pa. 1976) (internal citations omitted).
12
In its brief, the Township presents arguments that rely in part upon a policy statement
that was published in 1999 by the International Chamber of Commerce, i.e., the entity that authored
the UCP, which is titled, “The determination of an ‘Original’ document in the context of UCP 500
sub-Article 20(b))” (Policy Statement). See Township’s Br. at 12-15. The Township claims that
(Footnote continued on next page…)
10
this Policy Statement, which is only included as an exhibit to an amicus curiae brief submitted to
this Court, supports the Township’s position that a copy of the Letter is, in effect, just as valid as
the original. See id.; Amicus Curiae Br., Ex. A. As the Policy Statement was neither attached to
nor incorporated by reference in any of this matter’s pleadings, it cannot serve as a basis for
justifying Common Pleas’ rulings upon the Motion and Cross-Motion, nor are we permitted to rely
upon the Policy Statement in the context of adjudicating this appeal. Newberry Twp., 848 A.2d at175 n.1; see McCaffrey v. Pittsburgh Athletic Ass’n, 293 A.2d 51, 57 (Pa. 1972) (“[I]t is black
letter law that an appellate court cannot consider anything which is not a part of the record in the
case.”).
Furthermore, even if this Policy Statement had been actually or effectively included in this
matter’s pleadings, it would not enable the Township’s position to carry the day. Therein, the
International Chamber of Commerce explained in relevant part that Article 20(b) of the UCP
should be interpreted in the following manner:
3. Correct interpretation of sub-article 20(b)
General approach
Banks examine documents presented under a letter of credit to
determine, among other things, whether on their face they appear to
be original. Banks treat as original any document bearing an
apparently original signature, mark, stamp, or label of the issuer of
the document, unless the document itself indicates that it is not
original. Accordingly, unless a document indicates otherwise, it is
treated as original if it:
(A) appears to be written, typed, perforated, or stamped by the
document issuer’s hand; or
(B) appears to be on the document issuer’s original stationary; or
(C) states that it is original, unless the statement appears not to apply
to the document presented (e.g., because it appears to be a
photocopy of another document and the statement of originality
appears to apply to that other document).
....
Photocopies
Banks treat as non-original any document that appears to be a
photocopy of another document. If, however, a photocopy appears
to have been completed by the document issuer’s hand marking the
photocopy, then, consistent with subparagraph (A) above, the
resulting document is treated as an original document unless it
indicates otherwise.
(Footnote continued on next page…)
11
III. Conclusion
In light of the foregoing, we hold that there are no genuine issues of material
fact on the face of the pleadings that: (1) the Letter unambiguously conditioned the
Township’s ability to draw upon the funds secured thereby upon the Township
presenting the original Letter; (2) the Township admittedly misplaced the original
Letter and only submitted a copy to VIST when it requested those funds; and (3)
neither the UCC nor the UCP allowed the Township to offer that copy instead of the
original. Accordingly, Common Pleas erred by both denying VIST’s Motion and
granting the Township’s Cross-Motion. Therefore, we reverse Common Pleas’ May
....
Statements indicating non-originality
A statement in a document that it is a true copy of another document
or that another document is the sole original indicates that it is not
original. A statement that it is the “customer’s copy” or “shipper’s
copy” neither disclaims nor affirms its originality.
4. What is not an “Original”?
A document indicates that it is not an original if it
• appears to be produced on a telefax machine;
• appears to be a photocopy of another document which has
not otherwise been completed by hand marking the
photocopy or by photocopying it on what appears to be
original stationary; or
• states in the document that it is a true copy of another
document or that another document is the sole original.
Amicus Curiae Br., Ex. A. As the iteration of the Letter that was provided by the Township is
conspicuously stamped “COPY,” the Policy Statement would not justify treating it as if it was the
“original” under Article 20(b) of the UCP.
12
3, 2021 order and remand to the lower court, with instructions that it enter judgment
on the Motion in VIST’s favor.13
__________________________________
ELLEN CEISLER, Judge
13
We need not address VIST’s remaining argument, due to our disposition of this appeal.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Windsor Township :
:
v. : No. 592 C.D. 2021
:
Tompkins Financial Corporation :
t/d/b/a VIST Bank, :
Appellant :
ORDER
AND NOW, this 18th day of October, 2022, it is hereby ORDERED that the
Court of Common Pleas of Berks County’s (Common Pleas) May 3, 2021 order,
through which Common Pleas denied Appellant Tompkins Financial Corporation
t/d/b/a VIST Bank’s (VIST) Motion for Judgment on the Pleadings (Motion) and
granted Appellee Windsor Township’s Cross-Motion for Judgment on the
Pleadings, is REVERSED. It is FURTHER ORDERED that this matter is
REMANDED to Common Pleas, with instructions that it enter judgment on the
Motion in VIST’s favor.
Jurisdiction relinquished.
__________________________________
ELLEN CEISLER, Judge