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decided: June 29, 1967.


Appeal from judgment of Court of Common Pleas of Delaware County, Sept. T., 1957, No. 285, in case of Girard Trust Bank, successor by merger to National Bank of Narberth v. Francis X. Sweeney and Barbara Sweeney.


Fronefield Crawford, with him Crawford & Frazier, for appellant.

Francis J. Lynch, with him Elmer L. Menges, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts concurs in the result. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: O'brien

[ 426 Pa. Page 325]

The defendant, Barbara Sweeney, plaintiff in the counterclaim, filed exceptions to the decision of the court below, filed April 7, 1966, which entered a finding in her behalf in the net amount of $4,644.26, with interest from March 12, 1959. On the 6th of July, 1966, the exceptions of Barbara Sweeney were dismissed, and the decision of the court below was affirmed. This appeal followed.

In December of 1956, Girard Trust Bank, (successor by merger to the National Bank of Narberth) [Girard Trust], engaged in a number of loan transactions with

[ 426 Pa. Page 326]

Francis X. Sweeney and Barbara Sweeney, then husband and wife. These loans, four in number: January 17, 1957, $5,000; May 3, 1957, $3,000; September 27, 1957, $19,000; September 17, 1957, $9,000; were evidenced by judgment notes executed by both Sweeneys, and collateral in the form of stock, consisting of 50 shares of A. T. & T. stock, registered in both names; and 936 shares of Ex-Cell-O Corporation stock, 150 shares of which were subsequently released, leaving 786 shares. 200 shares of the Ex-Cell-O stock were registered in the name of Barbara Sweeney, alone, and the remaining shares in both names. The $9,000 loan of September 17, 1957, which was entered of record on September 26, 1957, the actual loan being made on September 27, 1957, contained the following provision: "As security for this note, whether matured or unmatured, the holder hereof shall continuously have a lien upon any and all funds, stocks, bonds, notes, money or other property, at any time in its custody."

Some time thereafter, the Sweeneys were separated. On March 5, 1959, Mr. Sweeney, by letter to Mr. Carl Metzger, Executive Vice President of Girard Trust, requested, in essence, that the bank liquidate all of the collateral stock, pay off all loans, with the exception of the $9,000 note upon which judgment had been entered, and which was a lien against 2 Radnor Township properties, and remit the excess proceeds from the sale of the securities to him. Girard Trust followed these instructions, and on March 12, 1959, remitted to Francis X. Sweeney, alone, a check for the excess proceeds, amounting to $19,072.71. On August 20, 1959, Mr. and Mrs. Sweeney were divorced. On August 15, 1962, Girard Trust caused to be issued a writ of execution on its judgment against the premises in Radnor Township, Delaware County, title to said property originally having been in the names of both Sweeneys but which had, by reason of a property settlement connected

[ 426 Pa. Page 327]

    with the divorce, becomes vested in Barbara Sweeney, alone.

On September 29, 1962, Barbara Sweeney filed a petition in the Court of Common Pleas of Delaware County to open the judgment, averring that she neither knew of nor authorized the sale of stock held by Girard Trust as collateral, nor had she been advised that such a sale had taken place. She further averred that Girard Trust, before remitting the balance of the funds from the proceeds of stock sale to Francis X. Sweeney, had sufficient funds in its hands to satisfy the judgment, and she had never received any part of the proceeds of the check sent to Francis X. Sweeney. Girard Trust filed an answer to the petition. A hearing was held and, on December 13, 1962, an order was entered opening Girard Trust's judgment as to Barbara Sweeney. From that order, an appeal was taken to this court, and, by an opinion dated January 8, 1964, (Girard Trust Corn Exch. Bank v. Sweeney, 413 Pa. 203, 196 A.2d 310 (1964)), the order of the court below was affirmed. Thereafter, various pleadings were filed by the parties hereto which, in essence, are: First, Girard Trust sought a judgment against Barbara Sweeney in the amount of $9,000 plus interest from September 17, 1957, costs, and counsel fees; and Secondly, Barbara Sweeney, by her counterclaim, sought judgment against Girard Trust in the amount of $53,800. Hearings were held on December 17, 1964, and March 26, 1965, during which time interrogatories and answers, directed to Francis X. Sweeney, and ...

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