Appeal, No. 78, Jan. T., 1956, from order of Court of Common Pleas of Delaware County, Sept. T., 1938, 86 No. 857, in case of James L. Talbot v. Delaware County Trust Company. Order affirmed.
Edward M. Seletz, with him John H. Clark, Jr. and Seletz & Clark, for appellant.
Guy G. deFuria, with him deFuria, Larkin & deFuria, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
The order entered in this case in the Court below is affirmed on the following excerpts from the opinion of Judge DIGGINS:
"This action was instituted by the plaintiff on November 25, 1938, with statement of claim filed March 30, 1939, seeking to recover damages in the amount of $25,000 for alleged wrongful conversion by the defendant as a result of a landlord's distraint and constable's sale on November 16, 1938 of certain furniture and fixtures in a taproom located at 228 West Third Street, Chester, Pennsylvania. An affidavit of defense was filed by the defendant containing new matter and the plaintiff thereafter filed and answer to the defendant's new matter.
"The case was at issue and listed for trial during the week of October 30, 1939 but on October 19, 1939, the defendant filed a petition for rule to show cause why it should not be permitted to file an amended affidavit of defense. On November 14th of the same year, the rule was made absolute and on that day the defendant filed an amended affidavit of defense containing new matter and the plaintiff was allowed fifteen 87
days within which to file an answer thereto. The plaintiff has from November 14, 1939 to the present time not filed an answer to the defendant's new matter and the case has never been placed on the trial list by either side.
"In March of 1955, the defendant filed a petition for rule to show cause why a non pros should not be granted for failure of the plaintiff to proceed and an answer to the defendant's petition was filed by the plaintiff. On June 1, 1955 a hearing was held on said petition and answer before DIGGINS, J. and the Court directed that briefs be filed. The matter for us to decide is whether or not the plaintiff's failure to plead and to bring the case to trial for a period of over fifteen years constitutes under all of the circumstances an abandonment which entitles the defendant to have the case non prossed.
"It would appear that the matter is covered by Pa. R.C.P. No. 1037 as follows: 'In all cases, the court, on motion of a party, may enter an appropriate judgment against a party upon default or admission.' as well ...