Appeal, No. 153, Jan. T., 1952, from judgment of Court of Common Pleas No. 5 of Philadelphia County, June T., 1939, No. 4767, in case of Harry J. Alker, Jr., Exr., Will of William Freihofer, deceased, v. The Philadelphia National Bank. Judgment of non pros affirmed.
Lemuel B. Schofield, with him Edwin Hall, 2nd, and Harry J. Alker, Jr., for appellant.
Arthur Littleton, with him John R. McConnell and Morgan, Lewis & Bockius, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey and Musmanno, JJ.
The facts are stated in the opinion of SMITH, P.J., of the court below, as follows:
This matter comes before us on a rule to show cause why a judgment of non-pros should not be entered for the defendant. The action was originally instituted in a complaint in assumpsit filed by Harry J. Alker, Jr., and Stanley H. Freihofer, survivors of the four executors under the will of William Freihofer, deceased, against the Philadelphia National Bank. The summons in assumpsit was issued August 17, 1939 and was served the same day upon the defendant. Nothing was done by the parties thereafter until December 16,
, when the plaintiff filed a suggestion of the death of Stanley H. Freihofer, who had died on July 30, 1941, leaving the said Harry J. Alker, Esquire, the sole surviving executor of the estate. On December 21, 1944, the plaintiff filed a statement of claim on the defendant with notice thereon to file an affidavit of defense and requesting a jury trial.
On January 8, 1945, pursuant to a motion of the defendant, this Court by order of FENERTY, J., issued a rule upon the plaintiff to show cause why a judgment of non-pros should not be entered in favor of defendant. This rule was made returnable January 12, 1945. Argument on this rule was continued until January 29, 1945. On that day the plaintiff, Harry J. Alker, Jr., filed his answer to the petition of the defendant. In the answer, some of the averments contained in the petition were denied so that it was necessary to take depositions. The depositions were taken as follows: February 11, 1947, depositions of Edward W. Mann by defendant; June 19, 1947, depositions of Evan Randolph taken by defendant; July 9, 1947, depositions of Harry J. Alker, Jr., by plaintiff; July 26, 1950, depositions of Arthur Littleton by defendant in rebuttal of the testimony of Harry J. Alker Jr. The matter was then argued orally by counsel on October 5, 1951, before the court en banc consisting of FRANK SMITH, P.J., and EUGENE V. ALESSANDRONI, J. The question here involved is whether a judgment of non-pros should be entered where a statement of claim was filed on December 21, 1944, alleging the cause of action which arose in August, 1933. The determination of this question is addressed to the discretion of the Court. We have considered the pleadings and depositions in order to determine if the plaintiff proceeded with due and reasonable diligence necessary for the disposition of his claim and also whether the defendant's right has
been prejudiced by the long delay of eleven years and four months after the cause of action arose and before the plaintiff filed his statement of claim.
The plaintiff, as the sole surviving executor of the will of William Freihofer, deceased, claims to recover from the Philadelphia National Bank, defendant, a sum of $502,531 with interest from August 24, 1933. The cause of action is based upon an alleged improper sale by the defendant of collateral, securities, Building and Loan Association stock, and a guaranty, which were in the possession of the defendant as collateral for a loan originally made to William Freihofer in the sum of $910,000. The notes signed by Mr. Freihofer were demand and time notes. Demand for the payment of the said notes was made upon the executors of the estate of William Freihofer on August 14, 1933, payment to be made on or before August 18, 1933. On August 18, 1933, the defendant in writing notified the executors of the said estate that it had an offer to sell the collateral, the Building and Loan Association notes, and the guaranty in a single package for a lump sum equivalent to the amount due and owing to the Bank on the said notes of William Freihofer, or those notes of William Freihofer which had been renewed by the executors. The plaintiffs in their complaint aver that they asked for an extension of time so that they might either pay the notes or negotiate a new loan in order to repay the defendant. Plaintiffs aver that notwithstanding this request, defendant on August 24, 1933, sold all of ...