                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-27-1994

IN RE: Corestates Trust
Precedential or Non-Precedential:

Docket 93-2039




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                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT

                           _________________

                              No. 93-2039
                           _________________


            IN RE:       CORESTATES TRUST FEE LITIGATION

                 CORNELIA TODD HARRISON BYRD;
                    HOWARD W. HARRISON, III
                 Individually and on behalf of
                 all others similarly situated

                                   v.

                         CORESTATES BANK, N.A.

                Howard W. Harrison, III and James D. Robins*,
                                 Appellants

                     *    Pursuant to FRAP 12(a)

      ____________________________________________________

         On Appeal From the United States District Court
            for the Eastern District of Pennsylvania
                  (D.C. Civil No. 92-cv-05526)
      ____________________________________________________

                         Argued:   May 20, 1994

             Before: BECKER, LEWIS, Circuit Judges
                   and IRENAS, District Judge*

                     (Filed    October 27, l994 )


                     MARGUERITE R. GOODMAN (Argued)
                     One Old Gulph Center
                     111 Old Gulph Road
                     Wynnewood, PA   19096


*
 . The Honorable Joseph E. Irenas, United States District Judge
for the District of New Jersey, sitting by designation.
                          Attorney for Appellants


                    GREGORY M. HARVEY (Argued)
                    KAREN PIESLAK POHLMANN
                    Morgan, Lewis & Bockius
                    2000 One Logan Square
                    Philadelphia, PA   19103

                          Attorneys for Appellee


                   ___________________________

                      OPINION OF THE COURT
                   ___________________________


BECKER, Circuit Judge.


     Plaintiffs Howard W. Harrison, III and James D. Robins,

beneficiaries of fiduciary accounts administered by defendant

Corestates Bank, N.A. ("Corestates"), commenced this action in

the District Court for the Eastern District of Pennsylvania on

their own behalf and on behalf of all those similarly situated.

Plaintiffs allege breach of contract and fiduciary duty by

Corestates and correspondingly seek refund of allegedly

unreasonable trust fees and removal of Corestates as trustee.

Jurisdiction was premised on both diversity of citizenship, 28

U.S.C. § 1332, and the putative existence of a federal question

based upon violations of the banking laws, 12 U.S.C. § 92a and

applicable regulations.

     The district court dismissed the diversity claim for lack of

subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), concluding

that neither the plaintiffs' claim for punitive damages nor their
allegation that the defendants had mismanaged a trust res worth

more than $50,000 sufficiently augmented their otherwise minimal

claims to satisfy the amount in controversy requirement of the

diversity statute.   The court dismissed the federal statutory

claim, concluding that no private right of action exists for

violations of 12 U.S.C. § 92a.    The plaintiffs appealed the

district court's order of dismissal, but we agree with the

district court in both respects, and hence we will affirm.


                  I. FACTS AND PROCEDURAL HISTORY

     Corestates functions as a trustee for a multitude of trusts,

managing and investing principal and/or income in exchange for

fees.   In order to maximize the return on the trust funds,

Corestates "sweeps" the fiduciary accounts on a daily basis;

"sweeping" refers to the automated collection of idle cash from

customer accounts for purposes of temporary collective

investment.    Corestates transfers the uninvested cash from each

account to a temporary collective investment fund.   At relevant

times, Corestates has charged sweep fees of 60 basis points ($.60

for every $100 of invested cash) for the "service" of sweeping.

App. at 33a.    In addition, Corestates has imposed an annual

regulatory compliance charge of $600 for trusts with principal in

excess of $50,000 ($300 for those with less than $50,000 of

principal).    App. at 19a.
     The plaintiffs are beneficiaries of trusts administered by

Corestates which are subject to these fees.   They allege that

Corestate's imposition of the fees constitutes a breach of

contract and a breach of fiduciary duty under applicable

Pennsylvania law.   More specifically, plaintiffs allege

Corestates has violated 20 Pa. C.S.A. § 7315.1(b), which permits

a Pennsylvania fiduciary to make only a "reasonable charge for

services rendered in making [a] temporary investment."     Harrison

seeks compensatory damages of $2,474.88 ($1,874.88 of sweep fees

plus the $600 regulatory compliance fee).   Robins seeks

compensatory damages of $713.97 ($113.97 of sweep fees plus the

$600 regulatory compliance fee).   App. at 45a.   Because these

amounts are far less than the $50,000 required for diversity

jurisdiction, plaintiffs assert that the jurisdictional amount is

achieved either (1) via their claim for punitive damages; and/or

(2) because the value of the trust res, which they allege the

trustees have been mismanaging, exceeds the jurisdictional

amount.   Although plaintiffs have also brought this action "on

behalf of all those similarly situated," they have not sought

(and therefore have not obtained) class action certification.

     In addition, plaintiffs contend that Corestate's imposition

of the above mentioned fees constitutes a violation of

regulations promulgated pursuant to 12 U.S.C. § 92a.     More

specifically, plaintiffs contend that a federal private right of

action exists for Corestates' alleged regulatory violations.      As
we have noted, the district court was unpersuaded on both of

plaintiffs' theories, and dismissed the case.     This appeal

followed.

     The existence vel non of subject matter jurisdiction is a

legal issue over which we exercise plenary review.    York Bank &

Trust Co. v. Federal Savings & Loan Ins. Corp., 851 F.2d 637, 638

(3d Cir. 1988), cert. denied 488 U.S. 1005 (1989).    So is the

existence of a private right of action.   See Unger v. National

Residents Matching Program, 928 F.2d 1392, 1394 (3d Cir. 1991).

In making these legal determinations, all facts alleged in the

complaint and all reasonable inferences that can be drawn from

them must be accepted as true.   See Markowitz v. Northeast Land

Co., 906 F.2d 100, 103 (3d Cir. 1990).


                    II.   JURISDICTIONAL AMOUNT

     Diversity jurisdiction requires an amount in controversy

exclusive of interest and costs in excess of $50,000.    28 U.S.C.

§ 1332(a).   In determining whether the jurisdictional amount has

been has been properly alleged:
          [T]he sum claimed by the plaintiff controls if the
     claim is apparently made in good faith. It must appear
     to a legal certainty that the claim is really for less
     than the jurisdictional amount to justify dismissal. .
     . .   But if, from the face of the pleadings, it is
     apparent, to a legal certainty, that the plaintiff
     cannot recover the amount claimed, or if, from the
     proofs, the court is satisfied to a like certainty that
     the plaintiff never was entitled to recover that
     amount, and that his claim was therefore colorable for
     the purpose of conferring jurisdiction, the suit will
     be dismissed.
St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-

89, 58 S. Ct. 586, 590 (1938) (citations omitted).     Even in

diversity-based class actions, the Supreme Court has held that

class members may not aggregate their claims in order to reach

the requisite amount in controversy, Snyder v. Harris 394 U.S.

332, 338, 89 S. Ct. 1053, 1057 (1969), and that each member of

the class must claim at least the jurisdictional amount, Zahn v.

International Paper Co., 414 U.S. 291, 301, 94 S. Ct. 505, 512

(1973).   A fortiori, the plaintiffs may not aggregate their

claims in an action pursued on behalf of "those similarly

situated."



     A.      Punitive Damages

     Whether a sufficient amount in controversy exists to

establish federal diversity jurisdiction depends, in part, on

whether punitive damages are recoverable under Pennsylvania law.

Unfortunately, we lack the benefit of direct guidance from the

Pennsylvania Supreme Court in this area.    Therefore this court

must attempt to "predict the position which that court would take

in resolving this dispute."     Robertson v. Allied Signal, Inc.,
914 F.2d 360, 364 (3d Cir. 1990).

     In Packard v. Provident Nat'l Bank, 994 F.2d 1039 (3d Cir.

1993), cert. denied, 114 S. Ct. 440 (1993), we were presented

with the identical question of Pennsylvania law -- whether the

imposition of unreasonable sweep fees by a bank acting as a
trustee can result in the imposition of punitive damages.     The

district court in Packard found that sweep fees, imposed at a

lower rate then presented here, were unreasonable and in

violation of applicable Pennsylvania laws, grounding diversity

jurisdiction on an award of punitive damages in the amount of

$75,000.    Upp v. Mellon Bank N.A., 799 F. Supp. 540 (E.D. Pa.

1992).     On appeal, predicting what the Pennsylvania Supreme Court

would do, we concluded that "punitive damages simply cannot be

recovered against a trustee under Pennsylvania law."     Id. at

1048.    We are bound by the holding of this previous panel "in the

absence of a clear statement by the Pennsylvania Supreme Court to

the contrary or other persuasive evidence of a change in

Pennsylvania law."    Smith v. Calgon Carbon Corp., 917 F.2d 1338,

1343 (3d Cir. 1990), cert. denied 499 U.S. 966 (1991); see also

Third Circuit Internal Operating Procedure 9.1 (requiring that no

subsequent panel of this court overrule the holding of a prior

panel contained in a published opinion so as to avoid an intra-

circuit conflict of precedent).

     The Pennsylvania Supreme Court has not addressed the issue

since that time (nor has the Pennsylvania Superior Court).

     Calgon does not allow us to examine this issue anew, but
instead requires us to determine whether opinions of inferior

state courts subsequent to Packard represent persuasive evidence

of a change in Pennsylvania law.    In determining that punitive

damages were not available, the Packard court relied in part on
Freedman Estate, 1 Fid. Rep. 2d 60 (O.C. Allegheny Co. 1980) (en

banc), which held that punitive damages were not available

against a trustee.   Plaintiffs contend that two later trial court

opinions -- Lemke Trust 13 Fid. Rep. 2d 328 (O.C. Dauphin Cty.

1993) and Korman Corp. v. Franklin Town Corp., 34 D & C 3d 495

(C.C.P. Phila. Cty. 1984) (both holding, contrary to the opinion

in Freedman Estate, that punitive damages were available against

a trustee) -- which were not considered by Packard1 constitute
persuasive evidence of a change in Pennsylvania law.

     We find that these cases do not represent a change in

Pennsylvania law, and certainly not a sufficient evidence of a

change to satisfy Calgon.   See Calgon, 917 F.2d at 1343.    In

Calgon this court refused to overrule a prior panel's prediction

that the employment-at-will doctrine existed in Pennsylvania

notwithstanding two subsequent direct statements to the contrary

by members of the Pennsylvania Supreme Court, one in dicta, and

the other in a concurrence by Chief Justice Nix.   Id. (requiring

instead a "clear statement by the Pennsylvania Supreme Court to

the contrary").   Given the absence in our case of such persuasive

evidence of a change in Pennsylvania law, we find that punitive

damages are not available against Corestates.   Thus plaintiffs'

claim for punitive damages does not establish an amount in

controversy in excess of $50,000.

1
 .   The Lemke decision arose after Packard, while the Korman
case, decided before Packard, was apparently not called to the
attention of the Packard panel.
     B.   Value of the Trust Res

     Plaintiffs seek removal of Corestates as trustee pursuant to

20 Pa.C.S.A. § § 3173, 7121 which allow removal in the case of a

breach of fiduciary duty.   They submit that their request to

enjoin Corestates from charging excessive fees in the future

places the corpus of their trusts, each in excess of $50,000,2

into controversy.   They distinguish our opinion in Packard since

in that action injunctive relief against the future imposition of

allegedly excessive fees was not sought.

     In injunctive actions, it is settled that the amount in

controversy is measured by the value of the right sought to be

protected by the equitable relief.   See Smith v. Adams, 130 U.S.

167, 175, 9 S. Ct. 566, 569 (1889); Spock v. David, 469 F.2d

1047, 1052 (3rd Cir. 1972) ("In cases where there is no adequate

remedy at law, the measure of jurisdiction is the value of the

right sought to be protected by injunctive relief."), rev'd on

other grounds Greer v. Spock, 424 U.S. 828 (1976).   In other

words, "it is the value to plaintiff to conduct his business or

personal affairs free from the activity sought to be enjoined

that is the yardstick for measuring the amount in controversy."

14A C. Wright et al. Federal Practice and Procedure, § 3708 at
143-44 (2d ed. 1985) (citations omitted).


2
 . Harrison's trust is valued at $902,844, Robin's at $98,741.
App. at 50a.
     The Supreme Court applied this principle in McNutt v.

General Motors Acceptance Corp., 298 U.S. 178, 56 S. Ct. 780

(1936), where the plaintiff sought to enjoin the enforcement of

an allegedly unconstitutional regulation of its business.     The

Court held that the amount in controversy was not, as the

plaintiffs contended, the entire value of the business, but

instead the value of the right to be free of the particular

regulation, which "may be measured by the loss, if any, which

would follow the enforcement of the rules prescribed."   Id. at

181, 56 S. Ct. at 781.

     While some support would appear to exist for plaintiffs'

contention that the entire corpus of a trust is placed in

controversy where a breach of fiduciary duty is alleged, see

Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d

247, 249 n.8 (3d Cir. 1969) ("Although we do not decide the

issue, there is support for the proposition that where a breach

of fiduciary duty is alleged, the corpus of the trust is the

amount in controversy."), cert. denied 397 U.S. 948 (1970), it is

the logic of McNutt that we find applicable to this case.     In

McNutt the Supreme Court made clear that the amount in
controversy in an injunctive action is measured by the value to

plaintiff to conduct his business or personal affairs free from

the activity sought to be enjoined.   The value to the plaintiffs

in this action therefore is the cost to them of the continued

imposition of the allegedly excessive sweep fees.   The cost of
these fees to date has not exceeded $2500.    The plaintiffs are

unable to set forth any calculation establishing that the

continued imposition of such fees would bring a sum in excess of

the jurisdictional amount into controversy.

       In reserving the question of the measurement of the amount

in controversy in the case of an allegation of a fiduciary

breach, the Urbano panel was apparently concerned with an alleged

fiduciary breach that could place the entire corpus of a trust in

jeopardy.    In Urbano, prison inmates alleged a fiduciary breach

on the part of prison officials in the administration of trust

funds on behalf of the inmates, asserting that the officials were

using the trust money for their own benefit.    Urbano 415 F.2d at

249.    Given these allegations, the prisoners apparently could

have successfully alleged that the continued fiduciary breach on

the part of prison officials placed the entire trust corpus into

jeopardy.    The Urbano panel never reached this question because

it instead dismissed the case on the basis of abstention.

Urbano, 415 F.2d at 250.   In contrast, plaintiffs in the case at

bar have failed to allege in any way a breach of fiduciary duty

which threatens an amount of the trust corpus in excess of

$50,000.    Unlike Urbano, plaintiffs do not seek protection from
any alleged conduct on the part of Corestates which threatens the

entire trust corpus.    Plaintiffs only seek protection from the

continued imposition of sweep fees, which alone do not threaten

an amount in excess of $50,000 per plaintiff.
     In addition to contending that Corestates' future actions

somehow threaten the entire trust corpus, the plaintiffs argue

that title to the entire trust is in controversy by the mere

equitable request for removal of the trustee.    The plaintiffs

contend that, because a trustee holds legal title to the trust

corpus, a request for removal of a trustee is equivalent to a

suit brought to determine title to property.    We disagree.

Corestates, while vested of legal title, does not claim ownership

of the entrusted funds.   See Restatement (Second) of Trusts § 2

comment (d) (1959) ("The term 'title,' unlike 'ownership' is a

colorless word; to say without more that a person has title to

certain property does not indicate whether he holds such property

for his own benefit or as trustee.").   The cases cited by the

plaintiffs all involve situations where the real equitable

ownership of property was at stake, not mere legal title.      See,

e.g., Sanchez v. Taylor, 377 F.2d 733 (10th Cir. 1967) (holding

that in a suit seeking a declaration of title the amount in

controversy is governed by the value of the property).    Since the

equitable ownership of trust property is not at issue, we

conclude that plaintiffs' injunctive request does not place the

jurisdictional amount into controversy.

     In sum we conclude that plaintiffs' requested injunctive

relief does not, to a legal certainty, place an amount in excess

of $50,000 into controversy.   The mere request for removal of a

trustee does not place the entire trust corpus into controversy;
instead plaintiffs must seek by way of an injunction protection

from an activity which threatens in excess of $50,000 of the

trust corpus.   Plaintiffs have failed to allege any such conduct

on the part of Corestates.


         III.    DOES AN IMPLIED RIGHT OF ACTION EXIST FOR
                VIOLATIONS OF REGULATIONS PROMULGATED
                    PURSUANT TO 12 U.S.C. § 92a?


     Section 92a provides that the "Comptroller of the Currency

shall be authorized and empowered to grant by special permit to

national banks applying therefor, when not in contravention of

State or local law, the right to act as trustee. . . ."      12

U.S.C. § 92a.   Plaintiffs have pled violations of regulations

promulgated pursuant to § 92a, namely 12 C.F.R. § 9.15 which

allegedly requires a bank to charge a reasonable fee when

sweeping, and 12 C.F.R. § 9.18(b)(12) which places limits on the

amount a bank can charge to a collective investment fund.

Plaintiffs contend that a cause of action exists for violations

of § 92a and corresponding regulations by way of the private

right of action which has been implied into 12 U.S.C. § 93(a) for

violations of the National Bank Act.    See Chesbrough v. Woodward,

244 U.S. 72, 37 S. Ct. 579 (1916).   Alternatively, plaintiffs

maintain that a private right of action exists independently

under § 92a.

     We do not write on tabula rasa.   The First and the Fifth

Circuits have already written - and divided - on the question
whether a private implied right of action exists for violations

of § 92a and accompanying regulations.   In B.C. Recreational

Indus. v. First Nat'l Bank, 639 F.2d 828, 833 n.10 (1st Cir.

1981), the First Circuit posited in dicta that an implied right

of action could be found to exist through § 93 "for violations of

the National Bank Act, including § 92a(a)."   The B.C. Indus.

court failed to fully consider, however, whether § 92a was in

fact enacted as part of the National Bank Act.   In Blaney v.

Florida Nat'l Bank, 357 F.2d 27 (5th Cir. 1966), the Fifth

Circuit, in a more detailed analysis, concluded that a private

right of action did not exist for violations of § 92a.   The

Blaney court failed to consider, however, the possibility that a

private right of action could exist through § 93(a).   As will be

seen, the relationship of § 92a to § 93(a) and the National Bank

Act is dispositive.


     A.   Can a Private Cause of Action Exist Through § 93(a) for
          a Violation of § 92a Regulations?


     The plaintiffs maintain that a cause of action exists for

violations of § 92a and corresponding regulations by way of the

private right of action which has been implied into § 93(a).    See
Chesbrough v. Woodward, 244 U.S. at 78, 37 S. Ct. at 582 (finding

an implied private cause of action under the predecessor to §

93(a)).   Section 93(a) provides in pertinent part that if "the

directors of any national banking association shall knowingly

violate or knowingly permit . . . [a] violat[ion] . . . [of] any
of the provisions of title 62 of the Revised Statutes [the

National Bank Act] . . . [such] director . . . shall be held

liable. . . ."   12 U.S.C. § 93(a).

     The implied right of action under § 93(a), first established

by the Supreme Court in Chesbrough, has been recognized and

applied to various provisions of the National Bank Act.   See

Morast v. Lance, 807 F.2d 926, 932 (11th Cir. 1987); Durante

Bros. & Sons, Inc. v. Flushing Nat'l Bank, 755 F.2d 239, 243 (2d

Cir. 1985); Marx v. Centran Corp., 747 F.2d 1536, 1540 (6th Cir.

1984), cert. denied 471 U.S. 1125 (1985); Harmsen v. Smith, 542

F.2d 496, 499-500 (9th Cir. 1976), cert. denied 464 U.S. 822

(1983).   It should be noted, however, that the implied private

right of action recognized in Chesbrough relates only to § 93(a),

given that until 1978, Section 93 of the National Bank Act

consisted only of the paragraph which is now § 93(a).   Whether an

implied right of action exists for an alleged violation of § 92a

via the implied right of § 93(a) will depend upon whether § 92a

was enacted as part of the National Bank Act.3   Section 92a was

enacted on September 28, 1962 as Public Law 87-722 in order to

transfer regulatory authority over the fiduciary operations of

national banks from the Federal Reserve Board to the Comptroller


3
 . If we were to determine that § 92a were part of the National
Bank Act, it is unclear whether a private right of action could
exist through § 93(a) for violations of regulations promulgated
under § 92a. Since we determine that no private right of action
exists for violations of § 92a, we need not address this
question.
of the Currency, repealing § 11(k) of the Federal Reserve Act

(which was codified at 12 U.S.C. § 248).   See Public Law 87-722,

76 Stat. 668 (enacting § 92a while repealing § 11(k) of the

Federal Reserve Act and explicitly amending two sections of the

Internal Revenue Code).   While designated by the editors of the

U.S. Code as 12 U.S.C. § 92a, the enacting legislation and

accompanying legislative history did not amend, repeal or even

mention the National Bank Act.   The fact that the legislation

specifically amends two sections of the Internal Revenue Code,

underscores the lack of Congressional intention that § 92a

function as an amendment to the National Bank Act.

     Moreover, later enactments refer to § 92a not as part of the

National Bank Act, but as the Act of September 28, 1962.     See Act

of March 31, 1980, Pub L. 96-221, Title VII § 704, 94 Stat. 187

(1980) (codified as 12 U.S.C. § 92(a)(k)); Garn-St. Germain

Depository Institutions Act of 1982, Pub. L. 97-320, Title IV §

424(g), 96 Stat. 1523 (1982) (codified as an amendment to 12

U.S.C. § 93(b)) (referring to "the provisions of Title 62 of the

Revised Statutes [the National Banking Act] or any of the

provisions of section 92a of this title" (emphasis added)).      For

these reasons, we find that § 92a was not enacted as part of the

National Bank Act, and hence we conclude that no private cause of

action exists through § 93(a) for a violation of § 92a

regulations.
     B.      No Implied Right of Action Exists under § 92a.

     Since § 92a was not enacted as part of the National Bank

Act, a private right of action can only exist for violations of

regulations promulgated under § 92a if a right of action can be

implied under § 92a pursuant to the Supreme Court's four factor

test of Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080 (1975).      In

deciding whether an implied right of action exists for a

violation of regulations, we must first determine "whether the

statute under which the rule was promulgated properly permits the

implication of a private right of action . . . under Cort v. Ash

and its progeny."     Angelastro v. Prudential-Bache Securities,

Inc., 764 F.2d 939, 947 (3d Cir. 1985), cert. denied 474 U.S. 935

(1985).4   Obviously, the regulations cannot themselves aid in

answering the question whether a private right of action exists

under the enabling statute.     See Smith v. Dearborn Financial

Services, Inc., 982 F.2d 976, 979 (6th Cir. 1993); Marshall v.

Gibson's Products, Inc., 584 F.2d 668, 677-78 & n. 16 (5th Cir.

1978) (holding that an implied private cause of action can be

implied only from a statute and not from regulations, since the

authority to create federal jurisdiction lies solely with

Congress).



4
 . In order to imply a private cause of action for a regulatory
violation, we would also have to conclude both that (1) the
regulation was properly within the scope of the enabling statute,
and (2) the private right of action would further the purpose of
the enabling statute. Angelastro, 764 F.2d at 947.
     Under Cort v. Ash we are required to examine four factors in

determining whether to imply a private right of action under a

federal statute: (1) whether plaintiffs are part of the class for

whose especial benefit the statute was enacted; (2) whether there

was any indication of Congressional intent to deny or create a

private remedy; (3) whether implication of a private remedy is

consistent with the underlying purpose of the statute; and (4)

whether the matter is traditionally one relegated to the states.

Cort v. Ash, 422 U.S. at 78, 95 S. Ct. at 2088.   Courts that

have already considered the matter, have concluded that "it is

doubtful that plaintiffs could meet the test of Cort v. Ash" in

establishing an implied private right of action under § 92a.

B.C. Indus., 639 F.2d at 833 n.10; Thompson v. Kerr, 555 F. Supp.

1090, 1098 (S.D. Ohio 1982).

     Supreme Court precedent has established that the second Cort

v. Ash factor, legislative intent, is entitled to the greatest

weight in the calculus.   Touche Ross & Co. v. Redington, 442 U.S.

560, 575, 99 S. Ct. 2479, 2489 (1979).   Specifically, a lack of

evidence of legislative intent to create a private right of

action, either express of by implication, can by itself provide

the answer that a private right of action should not be implied.

See Touche, 442 U.S. at 571-76, 99 S. Ct. at 2486-89 ("[I]mplying
a private right of action on the basis of congressional silence

is a hazardous enterprise, at best.").
     The legislative history accompanying § 92a and its

predecessor is void of any indication that Congress intended to

create a private remedy.   No court had ever recognized a private

right of action under the predecessor statute to § 92a,5 and in

enacting § 92a, Congress explicitly stated that "[n]o change

would be made from the substantive provisions of section 11(k)

[the predecessor statute of the Federal Reserve Act] other than

the transfer of authority, so that there is no alteration of

existing law regarding national banks acting in fiduciary

capacities."   87th Congress, 2d Sess., S Rep. No. 2039, 1962 U.S.

Code Cong. & Ad. Rep. 2735; see also Investment Co. Institute v.

Camp, 401 U.S. 617, 621-22, 91 S. Ct. 1091, 1094 (1971) ("In 1962

Congress transferred jurisdiction over most of the trust

activities of national banks from the Board of Governors of the

Federal Reserve System to the Comptroller of the Currency,

without modifying any provision of substantive law.").    Given

that no private cause of action existed under § 92a's predecessor

and Congress expressly intended not to change the substantive

law, we conclude that Congress did not intend to create a private

cause of action when it enacted § 92a.

     An evaluation of the remaining three Cort v. Ash factors
also leads us to decline to recognize a private right of action.


5
 . The predecessor statute, 12 U.S.C. § 248 (formerly § 11(k))
vested the authority to regulate the fiduciary operations of
national banks with the Federal Reserve System's Board of
Governors.
First, no indication exists that plaintiffs are part of a class

for whose especial benefit the statute was enacted.     Congress

enacted the predecessor to § 92a merely to place national banks

on equal footing with state banks in the performance of trust

functions.    Blaney, 357 F.2d at 30 ("This is obvious from the

most cursory reading of . . . 12 U.S.C. § 92a.").     Given this

purpose, it appears that the statute was not enacted for the

benefit of any particular identified class, other than arguably

national banks.

     Under the third Cort v. Ash factor we ask whether the

implication of a private remedy is consistent with the underlying

purpose of the statute -- to place national banks on equal

footing with state banks in the performance of trust functions.

In the enacting legislation (in what is now § 92a(k)), Congress

created a detailed remedial provision.    This section provides

that in the event the Comptroller determines that a national bank

unlawfully exercised the granted fiduciary powers, the

Comptroller should, following specified procedures (i.e. by

providing notice and a hearing), revoke the trust powers granted

by statute.    12 U.S.C. § 92a(k)(1).   If the bank's fiduciary

powers were revoked subject to these procedures, the bank could

then obtain direct judicial review by a federal appellate court.

12 U.S.C. § 92a(k)(2); 12 U.S.C. § 1818(h).     We find that this

carefully reticulated enforcement mechanism would not be enhanced

by the implication of a private right of action.    More
specifically, the Congressional grant of enforcement power to the

Comptroller, head of the federal agency created and empowered by

Congress to develop and exercise expertise in this area,6 would

not be furthered by allowing a court, as opposed to the

Comptroller, to make the initial determination whether a bank had

engaged in conduct inconsistent with the statute.

     Under the fourth and final Cort factor we must ask whether

the matter is one traditionally relegated to the states.    One is

hard pressed to imagine an area of law more traditionally a

province of state law, than the law of trust and estates.

Implying a private right of action under § 92a could effectively

federalize a not insignificant portion of state trust and estate

law, and burden federal courts with numerous cases involving

disputes between trust beneficaries and national banks, a most

untoward result.   We do not believe that Congress could have

intended such a result by its enactment of § 92a.7


6
 .  See Central Nat'l Bank v. United States Dept. of Treasury,
912 F.2d 897, 905 (7th Cir. 1990) ("[B]anks are his [the
Comptroller's] wards, and his only wards.").
7
 .  Because we find that no private right of action exists for
violations of § 92a, we need not address the validity of
Corestate's claim that, in the area of trusts and estates, the
federal court should abstain out of deference to the state
Orphans Court's expertise.     See Ryan v. First Pennsylvania
Banking & Trust Co., 519 F.2d 572, 575 (3d Cir. 1975); Reichman
v. Pittsburgh Nat'l Bank, 465 F.2d 16, 18 (3d Cir. 1972).
However like the Fifth Circuit in Blaney, our decision is
reinforced by the understanding that the law of trusts and
estates is a primary matter of state concern. Blaney, 357 F.2d
at 30.
     In sum, all four Cort v. Ash factors militate against the

plaintiffs' position.   Accordingly, we conclude that no private

right of action should be implied under § 92a.


                          IV. CONCLUSION

     We will affirm the district court's order granting

Corestate's motion to dismiss for failure to state a claim as to

purported federal claims and for lack of subject matter

jurisdiction as to all remaining claims.   Additionally, the

district court's order denying plaintiffs motion to enjoin

commencement of trust accountings in Pennsylvania Orphans' Court,

which the plaintiffs have also appealed, will likewise be

affirmed.

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