Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1973, No. 4190, in case of Phillips Home Furnishings, Inc., v. Continental Bank.
Howard E. Davidson, with him Astor & Weiss, for appellant.
Alan Gershenson, with him Blank, Rome, Klaus & Comisky, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Van der Voort, J., concurs in the result.
[ 231 Pa. Super. Page 176]
This case is before us on appeal from a lower court order granting Continental Bank's motion for summary judgment.*fn1
The facts as alleged by the appellant show that on the evening of June 16, 1973, Max Shectman prepared a bank deposit of $5,669.00 in receipts from his business, Phillips Home Furnishings, Inc. He then picked up his wife at her place of employment and proceeded to an office of Continental Bank [hereinafter Bank], where he had done his banking for nearly thirty years.
[ 231 Pa. Super. Page 177]
Upon arriving at the Bank, he proceeded to the Bank's Night Depository Safe, the opening for which was located on the outside wall, properly placed his deposit in the safe, and returned home. Five days later, not having received confirmation of his deposit, Mr. Shectman phoned the Bank only to learn that it had no record of the deposit ever having been made, and no explanation of what might have happened to it.
In response to the understandably anxious inquiries of its customer, the Bank showed Mr. Shectman a copy of the "Night Depository Agreement" signed by him the previous year. The Agreement states in pertinent part:
"1. Bank grants to the undersigned the privilege of using the Night Depository gratuitously and solely as an accommodation to the undersigned; and the exercise of the privilege by the undersigned will be at the sole risk of the undersigned. Bank will employ such safeguards . . . as it deems proper, without any liability to the undersigned for their sufficiency.
"4. Bank shall be under no liability with respect to anything placed in the Night Depository, except for the amount of cash and checks actually taken into its possession upon opening the Night Depository Safe. In the event of any dispute as to whether or not the said bag dropped down the chute and entered the Night Depository Safe, or came into the possession of Bank, the report of the employee of Bank who ...