                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-3-2007

Siemens Bldg Tech v. PNC Fin Ser Grp Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3646




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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                      No. 05-3646


                    SIEMENS BUILDING TECHNOLOGIES, INC.
                   formerly known as CERBERUS PYROTRONICS,
                                                  Appellant

                                            v.

                      PNC FINANCIAL SERVICES GROUP INC.,
                            doing business as PNC BANK;
                              MICHELLE WILLIAMS;
                              JOHN DOES 1 through 10;
                                  ELOISE TANNER


                       Appeal from the United States District Court
                                for the District of New Jersey
                                (D.C. Civil No. 02-cv-00868)
                      District Judge: Honorable Katharine S. Hayden


                               Argued November 28, 2006

                    Before: RENDELL and AMBRO, Circuit Judges
                            and PRATTER*, District Judge.

                                  (Filed: April 3, 2007)




* Honorable Gene E. K. Pratter, District Court Judge for the Eastern District of
Pennsylvania, sitting by designation.

Patrick D. Sheridan
Robert R. Niccolini [ARGUED]
McGuire Woods
Seven Saint Paul Street
Suite 1000
Baltimore, MD 21202

Scott A. Lazar
Barrett, Lazar & Lincoln
145 West Passaic Street
2nd Floor
Maywood, NJ 07607
   Counsel for Appellant

Gregg S. Sodini [ARGUED]
Sodini & Spina
510 Thornall Street
Suite 180
Edison, NJ 08838
  Counsel for Appellee
  PNC Financial Services Group Inc.


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

       Siemens Building Technologies, Inc. (“Siemens”) appeals from the June 24, 2005,

Order of the District Court granting a motion by PNC Bank (“PNC”) for summary

judgment on Siemens’s respondeat superior claim and denying Siemens’s cross-motion

for summary judgment on the theory of apparent authority. We will affirm the Order of

the District Court.1




  1
   We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

                                           2
                                            I.

       From January of 1996 through March of 1998, Michelle Williams was employed

as an assistant in the payroll department of Cerberus Pyrotronics, Inc. in Cedar Hill, New

Jersey.2 During the course of her employment, Williams defrauded Siemens through a

check-cashing scheme in which she made out payroll checks to other employees, forged

the endorsement signatures of those employees and then cashed the checks for her own

gain at PNC Bank. In total, Williams cashed 639 fraudulent checks totaling over

$300,000.

       In February of 1998, when several Siemens employees complained that their 1997

W2 forms reflected earnings greater than what they had actually received, Williams’s

superiors in the payroll department uncovered indications of her wrongdoing and, on

March 6, 1998, confronted Williams with their suspicions. Williams admitted that she

had defrauded Siemens and was terminated. Siemens subsequently hired the accounting

firm KPMG to investigate the extent of Williams’s fraud. In its May 1999 final report on

the matter, KPMG notified Siemens of its discovery that Williams had cashed all of the

fraudulent checks at one of two local branches of PNC Bank and that the same teller had

handled all 639 of the transactions.3


  2
   Cerberus was purchased by Siemens following the events giving rise to this litigation.
As the parties have done in brief, we will refer to Williams’s employer as Siemens
throughout this Memorandum.
  3
   Siemens did not maintain its payroll account with PNC and, otherwise, was not a
customer of PNC. Therefore, Williams would cash the check at PNC and PNC would in

                                            3
       After Siemens notified PNC of the results of the KPMG investigation, the Bank

identified Eloise Tanner as the teller who had cashed all of Williams’s checks. Tanner

held the position of “Head Teller” at PNC and, as such, had the discretion to cash non-

customer checks when she had reason to believe they were backed by sufficient funds.

When PNC confronted Tanner in January of 2000, she claimed that she did not know

Williams and that she had cashed the checks because she believed that PNC had an

agreement with Siemens to do so. PNC was unable to locate, and was otherwise unaware

of, any such agreement. PNC subsequently dismissed Tanner, though PNC claims that

Tanner’s dismissal was prompted by the discovery of a $5,000 shortfall in Tanner’s

“reserve vault,” rather than any role she may have played in Williams’s scheme.4

       In February of 2003, Siemens brought an action against PNC Bank, Williams,

Tanner and nine “John Doe” employees of PNC Bank with supervisory powers over

Tanner, alleging fraud, negligence, violations of federal and state racketeering statutes

and seeking recovery of Siemens’s lost $300,000. Although Siemens’s complaint alleged

eight counts, Counts I, II, V, VI, VII and VIII were disposed of early in the litigation and

are not before us. Nor is Count IV, which Siemens voluntarily dismissed.

       The District Court’s order from which Siemens appeals deals only with Count III:

Siemens’s claim that “PNC is vicariously liable to Siemens for the deliberate fraud of its


turn seek reimbursement from Siemens’s account-holder bank.
  4
  Despite Tanner’s claims that she did not know Williams, Tanner’s original
employment application for her position listed Williams as a reference.

                                             4
agent, Tanner, under the doctrine of respondeat superior.” PNC moved for summary

judgment on this claim, arguing that PNC could not be vicariously liable for fraud

because Tanner’s actions were taken outside the scope of her employment. Siemens

brought a cross-motion, arguing that “PNC is vicariously liable for Tanner’s wrongful

conduct because PNC placed her in the position of head teller which enabled her, cloaked

with apparent authority to cash non-customer checks, to commit a fraud upon Siemens.”

       The District Court granted PNC’s motion, reasoning that, though “[b]ank tellers

commonly cash and process checks for customers of a bank; knowingly cashing

fraudulent checks is not the same thing” and, therefore, that “Tanner’s acts [were] outside

the scope of her employment and the doctrine of respondeat superior, as applied by New

Jersey courts, is inapplicable.” It also determined that “no reasonable jury could conclude

that Tanner was motivated, in whole or in part, to serve PNC’s interests.” Finally, the

District Court also denied Siemens’s cross-motion, holding that because “apparent

authority protects only the innocent third party and not all interested parties, PNC is not

liable to Siemens for Tanner’s fraudulent conduct under apparent authority.”

       Siemens now appeals these rulings of the District Court. We review the District

Court’s grant of summary judgment de novo. Robeson Indus. Corp. v. Hartford Accident

& Indem. Co., 178 F.3d 160, 164 (3d Cir. 1999). Because we sit in diversity, we will

apply the substantive law of New Jersey, the forum state in this matter. Id. at 165.

                                 II. – Respondeat Superior

       Siemens argues that PNC should be held vicariously liable for Tanner’s fraudulent

                                              5
conduct under the doctrine of respondeat superior.

       Under New Jersey law, “an employer can be found liable for the negligence of an

employee causing injuries to third parties, if, at the time of the occurrence, the employee

was acting within the scope of his or her employment.” Carter v. Reynolds, 815 A.2d

460, 463 (N.J. 2003). To succeed in bringing a respondeat superior claim, “a plaintiff

must prove (1) that a master-servant relationship existed and (2) that the tortious act of

the servant occurred within the scope of that employment.” Id.

       In this case, neither side disputes that a master-servant relationship existed

between PNC and Tanner. The question here is whether Siemens has offered enough

evidence such that a reasonable jury could conclude that Tanner’s acts were within the

scope of her employment. “The question whether or not the act done is so different from

the act authorized is decided by the court if the answer is indicated; otherwise, it is

decided by the jury.” Mason v. Sportsman’s Pub, 702 A.2d 1301, 1310 (N.J. Super. Ct.

App. Div. 1997).

       Generally, the phrase “scope of employment” “refers to those acts which are so

closely connected with what the servant is employed to do, and so fairly and reasonably

incidental to it, that they may be regarded as methods, even though quite improper ones,

of carrying out the objectives of the employment.” Carter, 815 A.2d at 465 (citations

omitted). More specifically, “scope of employment is subject to analysis under

Restatement [(Second) of Agency] sections 228 and 229,” both of which the New Jersey



                                              6
Supreme Court has explicitly adopted as the guiding principles of this inquiry.5 Id.

Restatement (Second) § 228 reads:

       (1) Conduct of a servant is within the scope of employment if, but only if:

              (a) it is the kind he is employed to perform;
              (b) it occurs substantially within the authorized time and
              space limits;
              (c) it is actuated, at least in part, by a purpose to serve the
              master; and
              (d) if force is intentionally used by the servant against
              another, the use of force is not unexpectable by the master.

       (2) Conduct of a servant is not within the scope of employment if it is
       different in kind from that authorize, far beyond the authorized time or
       space limits, or too little actuated by a purpose to serve the master.

       Additionally, Restatement (Second) § 229 reads:

       (1) To be within the scope of the employment, conduct must be of the same
       general nature as that authorized, or incidental to the conduct authorized.

       (2) In determining whether or not the conduct, although not authorized, is
       nevertheless so similar to or incidental to the conduct authorized as to be
       within the scope of employment, the following matters of fact are to be
       considered:


  5
    The New Jersey Supreme Court has not yet adopted the formulation of respondeat
superior given in the Restatement (Third) of Agency, which was published earlier this
year. See RESTATEMENT (THIRD) OF AGENCY § 7.07. For our purposes, the key
difference between the Second and Third Restatement is the degree to which the
employee must intend his or her actions to be in service of his or her employer before
vicarious liability can attach. In the Second Restatement, as noted below, the conduct is
not within the scope of employment if it is “too little actuated by a purpose to serve the
master.” RESTATEMENT (SECOND) OF AGENCY § 228(2) (1958). However, in the Third
Restatement, conduct is not within the scope of employment “when it occurs within an
independent course of conduct not intended by the employee to serve any purpose of the
employer.” RESTATEMENT (THIRD) OF AGENCY § 7.07(2) (1958) (emphasis added). As
stated, we will follow the approach set forth in the Second Restatement.

                                              7
             (a) whether or not the act is one commonly done by such
             servants;
             (b) the time, place and purpose of the act;
             (c) the previous relations between master and the servant;
             (d) the extent to which the business of the master is
             apportioned between different servants;
             (e) whether or not the act is outside the enterprise of the
             master or, if within the enterprise, has not been entrusted to
             any servant;
             (f) whether or not the master has reason to expect that such an
             act will be done;
             (g) the similarity in quality of the act done to the act
             authorized;
             (h) whether or not the instrumentality by which the harm is
             done has been furnished by the master to the servant;
             (i) the extent to which the departure from the normal method
             of accomplishing an authorized result; and
             (j) whether or not the act is seriously criminal.

      Finally, “whether the conduct is intentional or negligent is generally irrelevant.”

Cosgrove v. Lawrence, 520 A.2d 844, 847 (N.J. Super Ct. Law Div. 1986). Nor is it

determinative that the employee’s tortious conduct violated a specific employer policy.

Wright v. Globe Porcelain Co., 179 A.2d 11, 14 (N.J. Super. Ct. App. Div. 1962).

      Although the Restatement sections set forth numerous factors for us to consider,

we believe the core issue before us to be Tanner’s intent. The District Court determined

that “no reasonable jury could conclude that Tanner was motivated, in whole or in part, to

serve PNC’s interests.”6 In approaching this issue, we are mindful that, as Siemens


  6
   The District Court also focused on whether Tanner was acting within the scope of her
employment and concluded she was not because the act she took, “knowingly cashing
fraudulent checks,” was “sufficiently different from the act authorized.” We disagree
with this approach. Under Restatement (Second) § 229(1), we are to determine whether

                                            8
conceded at oral argument, it was Siemens’s burden to show that Tanner was motivated

“at least in part, by a purpose to serve” PNC. Carter v. Reynolds, 815 A.2d 460, 463

(N.J. 2003) (holding that “a plaintiff must prove” both the existence of a master-servant

relationship and that the employee’s actions were in the scope of employment). Siemens

has failed to meet this burden. Siemens did not depose Tanner and, therefore, has not

offered any direct statement from her regarding her intentions. Although Siemens has

offered evidence indicating that PNC tellers were encouraged to cash non-customer

checks in order to build relationships and promote the bank’s image, Siemens has not

offered anything to indicate that Tanner was motivated by this policy. Siemens may not

satisfy its burden in this case by relying solely on evidence of some hypothetical benefit

to PNC generally – it must offer evidence of Tanner’s motivations specifically in this

situation. Siemens has simply offered no such evidence.

       Siemens argues that we should only examine whether the “act itself” – here,

cashing checks – comes within the scope of Tanner’s employment and that we should

disregard the “intent to serve” aspect of the analysis. In making this argument, Siemens

relies heavily on Abbamont v. Piscataway Twp. Bd. of Ed., 650 A.2d 958 (N.J. 1994), and

Hill v. New Jersey Dep’t of Corr. Comm’r, 776 A.2d 828 (N.J. Super. Ct. App. Div.


the act at issue is “of the same general nature as that authorized.” (emphasis added). The
plain language of this provision suggests that we should resist defining conduct with
reference to the particular facts attendant to that conduct or with reference to any other
limiting parameters. Instead, the Restatement makes clear that we should define the
relevant act in broad terms. Here, it is more properly said that Williams “cashed checks,”
and that this was the conduct authorized by PNC in her role as a teller.

                                             9
2001). We will forgo a lengthy discussion of Abbamont and Hill here, except to say that,

though both cases set forth and describe the respondeat superior framework, neither case

discusses, much less repudiates, the “intent to serve” aspect of the doctrine. Therefore,

we are not persuaded that these cases reflect any change in New Jersey law regarding

respondeat superior.

       We have little difficulty in affirming the District Court’s judgment that Siemens

has failed to offer enough evidence to suggest that Tanner was acting within the scope of

her employment in cashing the checks at issue.

                                  III. – Apparent Authority

       Siemens also argues that PNC is liable for Tanner’s fraud under a theory of

apparent authority.7 In fact, PNC’s “apparent authority” argument is an amalgamation of

two separate arguments sounding in different sections of the Restatement. We find

neither to be persuasive.

       Siemens’s first apparent authority argument evokes the doctrine’s traditional

notion, which dictates that liability “will be imposed upon the principal in cases . . . where

the actions of a principal have misled a third party into believing that a relationship of

authority existed.” Lobiondo v. O’Callaghan, 815 A.2d 1013, 1018 (N.J. Super. Ct. App.


  7
   We note that Siemens did not plead this theory in its complaint, instead raising it for
the first time in its brief in support of its cross-motion for summary judgment. The
District Court identified this defect but ultimately decided to rule against Siemens on the
merits. Although PNC argues that the issue is not properly before us and that we should
decline to entertain it, we will follow the lead of the District Court and opine on the
merits of Siemens’s argument.

                                             10
Div. 2003) (quoting Rodriguez v. Hudson County Collision Co., 686 A.2d 776, 780 (N.J.

Super. Ct. App. Div. 1997). However, it is clear that apparent authority “exists only to

the extent that it is reasonable for the third person dealing with the agent to believe that

the agent is authorized. Further, the third person must believe the agent to be authorized.”

RESTATEMENT (SECOND) OF AGENCY, § 8 cmt. c (1958). Siemens neither articulates

clearly how it was “misled” nor identifies the particular act it believed Tanner was

authorized to take. Indeed, Siemens fails to deal with the fact that it was Siemens’s own

employee who, rather than being “misled,” initiated and perpetrated the fraud.8

       Siemens’s other “apparent authority” argument relies on § 219(2)(d) of the

Restatement (Second) of Agency. Siemens argues that PNC should be held liable for

Tanner’s fraud because Tanner “was aided in accomplishing the tort by the existence of

the agency relationship.” Siemens cites Gaines v. Bellino, 801 A.2d 322 (N.J. 2002), as

supporting the application of this principle to intentionally tortious activity such as



  8
    Related to this argument is Siemens’s reliance on Restatement (Second) § 261, which
states that a “principal who puts a servant or other agent in a position which enables the
agent, while apparently acting within its authority, to commit a fraud upon third persons
is subject to liability to such third persons for fraud.” However, the Restatement clearly
states that liability under § 261 is premised upon “the fact that the agent’s position
facilitates the consummation of the fraud, in that from the point of view of the third
person the transaction seems regular on its face and the agent appears to be acting in the
ordinary course of the business confided to him.” RESTATEMENT (SECOND) OF AGENCY §
261 cmt. a (1958). Siemens’s argument is, apparently, that Williams was the “third
party” from whose point of view “the transaction seem[ed] regular on its face.” Again,
however, it was Williams who created and implemented the scheme and, therefore, it
defies all reason to suggest that Williams could have in someway been deceived by
Tanner’s actions.

                                              11
Tanner’s. However, Gaines, like similar cases such as Abbamont, Hill and Lehmann v.

Toys ‘R’ Us, 626 A.2d 445 (N.J. Super. Ct. App. Div. 1993), deals with actions brought

under very specific statutory schemes designed to govern sexual harassment and other

employment-related claims. While not entirely clear, the New Jersey Supreme Court’s

application of § 219(2)(d) in these cases appears to be a discrete effort to realize and

effectuate the policies giving rise to those statutory schemes rather than an endorsement

of applying § 219(2)(d) to all respondeat superior situations. Indeed, applying §

219(2)(d) to this case would, in effect, strip certain prongs from the “scope of

employment” aspect of the respondeat superior test. None of the cases cited by Siemens

reflect the New Jersey Supreme Court’s intention to depart so significantly from these

well-established principles. We decline to predict that the New Jersey Supreme Court

would engage in such a massive shift in the New Jersey law of agency.

       For the reasons set forth above, we will affirm the Order of the District Court.




                                             12
AMBRO, Circuit Judge, concurring.



       No part of the Court’s substantive analysis of the respondeat superior and

Restatement of Agency issues gives pause. I write separately only because I believe that

this case presents substantial questions relating to the interplay of the Uniform

Commercial Code with these issues. Indeed, the chain of consideration begins with the

UCC, for in many cases it may preempt common-law claims. I ultimately conclude that

the UCC does not preempt Siemens’s cause of action, and so I join the Court’s opinion.

In this context, the UCC’s reach in this area is shorter than it should be, and so I urge its

drafters to consider extending the comparative negligence rule of U.C.C. § 3-404(d)9 to

this situation.

                                              I.

       “Unless displaced by the particular provisions of [the UCC], the principles of law

and equity . . . supplement its provisions.” U.C.C. § 1-103. This text leaves the

impression that the UCC’s preemptive effects are limited and narrow. Not so. As the

Official Comments explain, the UCC’s preemptive reach is actually quite long:

       [T]he Uniform Commercial Code is the primary source of commercial law

       rules in areas that it governs, and its rules represent choices made by its

       drafters and the enacting legislatures about the appropriate policies to be


  9
    Unless otherwise noted, all references to Article 3 of the U.C.C. are to the 1990
version.
        furthered in the transactions it covers. Therefore, while principles of

        common law and equity may supplement provisions of the Uniform

        Commercial Code, they may not be used to supplant its provisions, or the

        purposes and policies those provisions reflect, unless a specific provision of

        the Uniform Commercial Code provides otherwise. In the absence of such a

        provision, the Uniform Commercial Code preempts principles of common

        law and equity that are inconsistent with either its provisions or its purposes

        and policies.



U.C.C. § 1-103 cmt. 2 (third and fourth alterations added).10 Hence, we apply the

common law to commercial cases only when (1) the UCC explicitly so provides or (2) the

common law supplements the text, purposes, or policies of the UCC without supplanting

them.

        Article 3 of the UCC regulates negotiable instruments, including checks.

Specifically, it apportions liability among drawers, drawees, indorsers, and collecting

banks when the check collection process goes awry. U.C.C. § 3-401 to 20. In particular,



  10
     I recognize that the 2001 revisions to Article 1 of the Uniform Commercial Code
quoted here have not been officially adopted by the New Jersey Legislature. However,
the drafters of the UCC note that “except for changing the form of reference to the [UCC]
and minor stylistic changes,” revised § 1-103 simply combines former sections 1-102 and
1-103 to “reflect the interrelationship” between the two sections. UCC § 1-103 cmts.
Thus, my reliance on revised § 1-103 is in line, as it is not substantively different from
former §§ 1-102 & 103.

                                              14
it provides that when a drawer corporation (here, Siemens) has a faithless employee

(Williams) who enriches herself by causing the corporation to issue fraudulent checks, the

default rule is that liability falls on the drawer, not the bank, because the UCC renders the

faithless employee’s fraudulent indorsement “effective as the indorsement of the payee in

favor of a person who, in good faith, pays the instrument or takes it for value or for

collection.” U.C.C. § 3-404(b)(2).

       This age-old scheme can take many forms. Here, Williams defrauded Siemens by

causing it to issue checks payable to employees (current and former), fraudulently

indorsing the checks, and cashing them.11 Section 3-404 by its terms comes into play: it

applies when “a person whose intent determines to whom an instrument is payable does

not intend the person identified as payee to have any interest in the instrument.” U.C.C. §

3-404 (internal cross references omitted). While the wording no doubt is obtuse, both

elements of the section are met here: Williams determined to whom payroll checks were

payable,12 and she did not intend for the named payees to have any interest in them.

       The problem here is that Williams was not alone. Tanner, a head teller at a PNC



  11
    This scheme took three forms: Williams caused Siemens to issue (1) two payroll
checks to a single employee, one of which went to the proper payee, the other of which
she misappropriated; (2) payroll checks to terminated and suspended employees, which
she misappropriated; and (3) checks for overtime pay that employees did not earn, which
she misappropriated.
  12
    Under § 3-110(a), the person who signs a check on behalf of the drawer determines
to whom the check is payable. Here, Williams stamped the checks with the appropriate
signatures, and so she determined to whom they were payable.

                                             15
branch, ensured that the scheme succeeded by cashing the fraudulently indorsed checks.

Neither Siemens nor PNC was particularly careful in monitoring its employee’s activities,

and Williams and Tanner got away with the scheme for quite a while. Eventually, both

employers wised up and are now fighting to determine who will bear the loss.

       In run-of-the-mill faithless employee scenarios, § 3-404(d) provides:

              [I]f a person paying the instrument or taking it for value or for

              collection [here, PNC] fails to exercise ordinary care in paying or

              taking the instrument and that failure substantially contributes to loss

              resulting from payment of the instrument, the person bearing the loss

              [Siemens] may recover from the person failing to exercise ordinary

              care [PNC] to the extent the failure to exercise ordinary care

              contributed to the loss.



This is a comparative negligence provision. 2 White & Summers, Uniform Commercial

Code § 19-2 (4th ed. 1995) (referring to the “comparative negligence” rule in 3-404); see

also U.C.C. § 3-405 cmt. 4 (“If the trier of fact finds that there was such a failure and that

the failure substantially contributed to loss, it could find the depositary bank liable to the

extent the failure contributed to the loss.”). In other words, when the employer and the

bank are both negligent, a trier of fact should apportion the loss between them to the

extent each party’s negligence contributed to the loss.

       Whether § 3-404(d) applies here becomes complicated, however, because Siemens

                                              16
does not allege PNC’s actions were negligent, but fraudulent. Specifically, Siemens

argues that Tanner’s fraud13 should be imputed to PNC. If Siemens is correct, then § 3-

404 does not apply because it only protects banks that pay instruments “in good faith.”

U.C.C. § 3-404(b)(2). Tanner, of course, did not pay the instrument in good faith, and if

we impute her fraud to PNC, it did not either. To determine whether we attribute

Tanner’s fraud to PNC (and thereby remove this claim from § 3-404's reach), we must

look to state agency law, as the UCC does not provide an answer, and the state law on

point does not conflict with the UCC’s text, purposes, or policies. Hence, I agree with the

Court that ordinary principles of agency law apply, and they prevent attributing Tanner’s

fraud to PNC.

                                             II.

       Having disposed of this case, I write further to note that applying state agency law

to claims like this one (which are not uncommon) introduces dissonance into a legal

regime that should be uniform and predictable. I suggest that the UCC drafters consider

explicitly providing the rules of decision in cases in which the drawer’s faithless

employee conspires with a bank teller or other line employee.

       The symmetry of this case is striking: PNC was negligent in not detecting Tanner’s

fraud in the same way that Siemens was negligent in not detecting Williams’s fraud. Yet,

respondeat superior threatened to shift liability from Siemens to PNC. In this case, it


  13
     That Tanner’s acts were fraudulent (as opposed to negligent or grossly negligent) is
not in dispute.

                                             17
does not matter because New Jersey’s version of respondeat superior emphasizes

whether the employee intended to serve the master. In our case, and in analogous

situations, New Jersey (along with many other states) is reluctant to hold a master liable

for a servant’s fraud when the servant is acting against the master’s interests. See, e.g.,

J.D. Edwards & Co. v. Podanty, 168 F.3d 1020, 1024 (7th Cir. 1998) (applying Illinois

law); Am. Bankers Life Assur. Co. of Fla. v. Tri City Bank & Trust Co., 677 F.2d 28, 30

(6th Cir. 1982) (applying Tennessee law); Todd v. Skelly, 120 A.2d 906, 909–10 (Pa.

1956).

         Other states, however, treat these situations differently, holding the master-

principal liable so long as the servant-agent, viewed from afar, appears to be about the

master’s business, even if the putative agent is acting solely for her own benefit. See,

e.g., Dewey v. Lutz, 462 N.W.2d 435, 443 (N.D. 1990); Pac. Mut. Life Ins. Co. v. Haslip,

553 So.2d 537, 541 (Ala. 1989); Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d

826, 837 (Tex. Ct. App. 1993) (“If an agent is acting within the scope of his general

authority, his wrongful act, though unauthorized, will nevertheless subject his principal to

liability.”) (emphasis added) (citations omitted); Billups Petroleum Co. v. Hardin’s

Bakeries Corp., 63 So.2d 543, 546 (Miss. 1953); McCarthy v. Brockton Nat’l Bank, 50

N.E.2d 196, 325–26 (Mass. 1943).

         Perhaps more importantly, even in states like New Jersey respondeat superior

liability turns on the subjective “state of the servant’s mind,” which, as the Restatement

notes, is typically provable only by circumstantial evidence. Restatement (Second) of

                                               18
Agency § 235 cmt. a (1958). This inquiry is naturally fact-intensive, and in cases

involving the same basic facts (faithless employees conspiring to use the checking system

to defraud their employers) factfinders can nonetheless reach opposite liability

determinations because of differences in nuance and inference.

       The same basic situation is treated differently in different states (and can be treated

differently by different factfinders in the same state). While this is a normal and, in some

circumstances, salutary effect of our federal-state system, the motivating logic of the

UCC is that the law applying to certain commercial transactions should, for efficiency

and predictability reasons, be uniform. See Karl N. Llewellyn, Why We Need the Uniform

Commercial Code, 10 U. Fla. L. Rev. 367, 372 & 381 (1957). Long ago the UCC drafters

(and before them the Negotiable Instruments Law drafters) determined that the banking

system and its attendant routine transactions were ripe for standardization. Id.; see also

Ralph L. Abercrombie, Article 4: Bank Deposits and Collections, 15 Okla. L. Rev. 287,

287 (1962). Following the deregulation of interstate banking in the 1990s, it is more

important than ever that the check collection process be governed by rules of decision that

do not vary from state to state.

       Moreover, it is worth noting that § 3-404 altered the substantive pre-Code law to

relieve banks of liability when customers’ employees used the check collection system to

steal from their employers. According to White and Summers, the purpose of § 3-404 is

to shift liability to employers who fail to take care in supervising employees who control

their check-writing:

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       The drafters have concluded that the employer should bear the
       responsibility for the forgery of certain embezzlers—those who have
       “responsibility with respect to instruments,” i.e., treasurers, payroll clerks,
       programmers of sensitive computer programs, and the like. These people
       are known by the employer to have the keys to the bank. In some cases they
       will be bonded. All employers should have procedures that encourage these
       people to be trustworthy and that expose them when they are not.


2 White & Summers § 19-4 (emphasis added). Indeed, the insistence on employer

liability is so strong that in a prior version of Article 3 the drawer had no recourse at all

against a negligent bank. U.C.C. § 3-405 (1952). In the current version, however, the

drafters have recognized that bank negligence could justify a sharing of liability, and so

they have provided for comparative negligence. Id. When a bank employee is

negligent—or even grossly negligent—in cashing the drawer’s fraudulently indorsed

check, the factfinder apportions liability between the negligent employer and the

negligent bank according to well-worn comparative negligence principles.

       The UCC’s comparative negligence rule should be expanded to cover situations in

which both the drawer and the bank have faithless employees because it is inexplicably

asymmetric for the applicable rule of decision (UCC comparative negligence or

respondeat superior) to turn on whether a low-level bank employee was involved in the

fraud. At present, if the drawer’s faithless employee acts alone, the rule of decision is

UCC comparative negligence, but if she acts in concert with a low-level bank employee,

respondeat superior sometimes shifts liability to the bank alone. At first blush, applying

respondeat superior, rather than UCC comparative negligence, to such cases might seem


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of little moment given that comparative fault is now the preferred approach to all tort

liability. See Restatement (Third) of Torts: Apportionment of Liability § 1 (2000). Thus,

even under a respondeat superior rubric, the bank would be able to use the drawer’s

negligence to limit its liability.

       The wrinkle is that the comparative fault inquiries under each approach differ.

Under an expanded § 3-404, the jury would compare the conduct of two negligent

employers. Under respondeat superior, the jury compares the drawer’s negligence with

the bank’s imputed fraud. Comparing negligence to negligence is not the same as

comparing negligence to fraud, as intent to harm becomes part of the comparative fault

equation. Restatement (Third) of Torts: Apportionment of Liability § 8(b). Indeed,

considering the bank employee’s intent to defraud could move a jury to impose more

liability on the bank than it would were it comparing negligence with negligence.

       More important for our case, the UCC provides a three-year statute of limitations.

U.C.C. § 3-118(g). In New Jersey (and many other states), statutes of limitations for

common-law claims are longer. Indeed, the statute of limitations issue may be the only

reason Siemens did not proceed with a UCC claim. Here, Siemens delayed bringing its

claim until after the UCC’s limitations period had expired; thus, it asserted common-law

claims to get around the UCC’s time bar. The UCC’s limitations period reflects the

drafters’ decision that employers seeking to shift part of their loss to banks must bring

suit within three years. I see no reason for the mere involvement of a teller to change that

by providing employers with an “end-around” this limitations period by styling their suits

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as non-UCC actions.

       I do not advocate UCC preemption in the event that the principals of the bank are

implicated in a fraudulent scheme. See Brighton, Inc. v. Colonial First Nat’l Bank, 422

A.2d 433 (N.J. Super. Ct. App. Div. 1980), aff’d 430 A.2d 902 (N.J. 1981). There I agree

with the UCC’s usual practice of leaving this type of serious commercial fraud to the law

of torts. Section 3-404 regulates only low-level fraud by faithless employees because

those schemes are common, and they operate through the normal channels of the check

collection process. Following that principle, I urge that the UCC extend to reach the not

untypical collection problem that arises when both the drawer and the bank have faithless

employees. I would not advocate delving into what New York law terms “commercial

bad faith,” that is, bad faith acts that implicate bank managers with “‘actual knowledge’”

of the fraud. See Calisch Assocs., Inc. v. Mfrgs. Hanover Trust Co., 542 N.Y.S.2d 644,

645–46 (N.Y. App. Div. 1989) (quoting Prudential-Bache Sec., Inc. v. Citibank N.A., 536

N.E.2d 1118, 1124–25 (N.Y. 1989)).

                                      * * * * *

       Because I agree that the UCC does not reach the situation presented here, I join the

Court’s opinion. I, however, urge the UCC drafters to consider redrafting § 3-404 to

extend the comparative negligence rule to situations in which a drawer’s faithless

employee conspires with a teller or other line employee of the bank to cash fraudulent

checks.



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