O'DONOHUE v. FIRST NATIONAL BANK OF PHILADELPHIA, Civ. A. 15341.

• Decision Date: 25 September 1958
• Docket Number: Civ. A. 15341.
• Citation: 166 F. Supp. 233
• Parties: Joseph J. O'DONOHUE, IV, Plaintiff, v. The FIRST NATIONAL BANK OF PHILADELPHIA, individually and/or trustee, etc., Defendant and Counterclaimant for Interpleader, Louis G. Cohen and Magbeth D. Cohen, Joseph Hoffman and Freda Hoffman, Julian R. Wilheim and Lois E. Wilheim, Claimants, Additional Defendants. United States of America, Intervenor.
• Court: U.S. District Court — Eastern District of Pennsylvania

166 F. Supp. 233

Joseph J. O'DONOHUE, IV, Plaintiff, v. The FIRST NATIONAL BANK OF PHILADELPHIA, individually and/or trustee, etc., Defendant and Counterclaimant for Interpleader Louis G. Cohen and Magbeth D. Cohen, Joseph Hoffman and Freda Hoffman, Julian R. Wilheim and Lois E. Wilheim, Claimants, Additional Defendants United States of America, Intervenor.

Civ. A. 15341.

United States District Court E. D. Pennsylvania.

September 25, 1958.

William L. Matz, Philadelphia, Pa., and Newell Clapp, Washington, D. C., for plaintiff.

William Barclay Lex, and John Norris, Philadelphia, Pa., for Bank.

Robert K. Greenfield, Philadelphia, Pa., for Cohens.

Julian R. Wilheim, Washington, D. C., and Harry Norman Ball, Philadelphia, Pa., for Wilheims.

Arthur R. Littleton, Asst. U. S. Atty., Philadelphia, Pa., for the United States.

VAN DUSEN, District Judge.

I. History of The Case and Statements of Facts

On June 5, 1953, Joseph J. O'Donohue, IV, instituted this action against The First National Bank of Philadelphia (now The First Pennsylvania Banking and Trust Company), hereinafter called the "bank," individually and as trustee under a Trust Deed dated 4/15/48, alleging that payments made by the bank, claimed to be under the terms of certain assignments, were improper and also seeking to recover certain funds in the bank's custody as trustee. The moving party in instituting the action was Julian R. Wilheim, Esq., acting under an irrevocable power of attorney for the named plaintiff, and Mr. Wilheim engaged Mr. Clapp, of the District of Columbia Bar, as his trial attorney.¹ The bank thereupon interpleaded Julian R. Wilheim, Lois Wilheim, the Hoffmans, and the Cohens as claimants to the same funds and paid the funds, which, with subsequent accretions, aggregated $9,600, into the registry of the court.

The case was listed for trial on three separate dates (May 17, 1955, November 29, 1955, and October 8, 1956) and continued at the request of counsel at calendar calls in February and April 1956. On the morning of October 8, 1956, when the case was called for trial, the following counsel stated that they represented the following parties:

William L. Matz, Esq., for the plaintiff

Harry Normal Ball, Esq., for Lois E. Wilheim

William Barclay Lex, Esq., for the First Pennsylvania Banking and Trust Company

William T. Adis, Esq., for Louis G. & Magbeth D. Cohen

Arthur R. Littleton, Esq., for the United States of America

After a conference in chambers, at which counsel for plaintiff requested the court to delay the start of the trial until the next morning so that plaintiff's Washington, D. C., counsel, Newell Clapp, Esq., and Julian R. Wilheim (representing himself) could be present, a jury was sworn and the trial was recessed until the next morning.

At the opening of court on October 9, 1956, all of the above counsel were present except for Mr. Littleton. In addition, Newell Clapp, Esq., was present for plaintiff and Julian R. Wilheim, Esq., appeared representing himself. It was also stated to the trial judge that Robert K. Greenfield, Esq., was appearing as an observer. At a conference in chambers, the parties stated that they thought they could settle the case and the trial judge stated "* * * in the event counsel have not been able to settle the matter by 2:30 p. m. * * * they will be prepared to go forward with the trial at that time * * *." About 11 a. m., counsel returned to the court room and moved for the withdrawal of a juror on the ground that "the case has been settled in a manner satisfactory to all parties." It was also stated that counsel were "preparing a stipulation which will take a day or two to get completed * * * (but) that will terminate the case."

The trial judge then said: "And that is agreeable to all counsel who are present; am I correct in that?" Mr. Wilheim answered: "That is correct, Your Honor." A juror was withdrawn and the case was marked settled on the Clerk's docket.

On March 13, 1958, Robert K. Greenfield, Esq., entered his appearance for Louis G. and Magbeth D. Cohen. In March of 1958, counsel were given notice by Robert K. Greenfield, Esq., as attorney for Louis G. and Magbeth D. Cohen, that there would be presented to the court for approval on March 20, 1958, an order for disposition of the $9,600 in the registry of the court and for entry of judgment in favor of the bank, with prejudice. The proposed order was supported by a motion, to which there was attached an agreement dated July 29, 1957, signed by all the parties to this action, except for the bank and the United States of America, which agreement contains the following language in paragraphs 1 and 2:

"1. The sum of ninety-six hundred ($9,600.00) Dollars or more on deposit with the District Court of the United States as aforesaid is to be disbursed as follows:

                "(a)  To the United States of
                      America on account of
                      the lien filed by it
                      against O'Donohue                $ 400.00
                "*(b) Julian Wilheim, Esq
                      on account of his
                      claim* (see below)                 375.00
                "(c)  Harry Norman Ball
                      Esq. for services                  525.00
                "(d)  Zoob and Matz, Esqs
                      for distribution as follows
                      to J. J. O'Donohue
                      $750; balance on
                      account of fee and costs
                      of Zoob and Matz and
                      Newell Clapp, Esq.               1,600.00
                "(e)  Louis G. Cohen and
                      Magbeth D. Cohen —
                      balance remaining in
                      said account
                

"2. Upon payment of said sums, a verdict shall be entered in favor of The First National Bank of Philadelphia and The First Pennsylvania Banking and Trust Company in their trust and individual capacities."

Julian R. Wilheim, Esq., requested a continuance of the proposed presentation of the order to the court on the ground that his commitments as a trial attorney for the Civil Division, U. S. Department of Justice, precluded his appearance until after April 18, 1958 (page 3 of Document No. 52 in the Clerk's file). At the sole request of Mr. Wilheim, the hearing on the motion was continued and was set for June 4, 1958, being the next date feasible for all other counsel and the court.² Meanwhile, on March 31, 1958, Julian R. Wilheim, Esq., filed with the court a Memorandum opposing the Motion of March 20, 1958, and on April 2, 1958, counsel for Joseph J. O'Donohue, IV, filed an Answer opposing this Motion in part. At the conclusion of the June 4 court session, the hearing was adjourned until June 6, 1958. At the conclusion of the June 6 session, the hearing was adjourned and, at the request of Mr. Wilheim, recommenced again on July 22, 1958, on which date the taking of testimony was concluded. At the request of Mr. Wilheim, oral argument was heard on July 29, 1958.

On July 21, 1958 (one day before the final hearing date), Mr. Wilheim filed the following motions:

A. Motion of Additional Defendant Julian R. Wilheim For Leave To File Additional Answer or Defense to Motion For Entry of Judgment For Disposition of $9,600.00 Now Held In Registry of Court (Document No. 56 in Clerk's file).

B. Motion of Additional Defendant Julian R. Wilheim To Drop Parties As Not Real Parties In Interest (Document No. 57 in Clerk's file).

C. Motion of Additional Defendant Julian R. Wilheim To Dismiss on Grounds That Louis G. Cohen and Magbeth D. Cohen, Claimants, Are Not Real Parties In Interest (Document No. 58 in Clerk's file).

The claimants Cohen have filed Answers to these Motions (Documents Nos. 61-63 in Clerk's file). The bank has filed a Memorandum stating its position (Document No. 64 in Clerk's file).

On the basis of the record of what took place in court and in chambers on October 8 and 9, 1956, and the record made at the hearings of June 4, 6, and July 22, 1958, the hearing judge also makes these findings of fact:

The counsel present in court on October 8 and 9, 1956, concluded a settlement agreement which provided for the distribution of the $9,600 in the registry of the court in accordance with the above-quoted paragraph 1 of the July 29, 1957, agreement and with the proposed decree attached to the motion of the claimants Cohen. This agreement also provided that the bank would not seek any fee from the $9,600 paid into court, and the suit instituted against the bank by plaintiff O'Donohue (acting by direction of Julian R. Wilheim, Esq.) should be dismissed with prejudice. Julian R. Wilheim, Esq., and the parties allied with him (by relationship or through his control under an irrevocable power of attorney, such as his wife and plaintiff O'Donohue) have failed to prove their contention that the bank agreed at the settlement discussions on October 8 and 9, 1956, that it would not claim any legal or other fees for work resulting from this suit for which Julian R. Wilheim, Esq., is responsible. Mr. Lex, a very accurate witness and the most accurate witness to testify in this proceeding, gave clear and convincing testimony that there was no discussion whatever while he was present on October 8 and 9, 1956, of the contention now made by Julian R. Wilheim, Esq., that the bank agreed not to charge any fees for any services from the trust from which the funds in the court registry originated.³ Mr. Greenfield's testimony is consistent with that of Mr. Lex on this point (N.T. 24 of 6/4/58). Mr. Matz's testimony is consistent with Mr. Lex's position that the agreement was that there would be no other claims against the $9,600 except those listed in paragraph 1 of the agreement of July 29, 1957. Although Mr. Matz testified that all parties agreed that there would be no other claims against the "estate fund," the hearing judge finds that the most persuasive evidence indicates that this agreement related to the $9,600 fund only.⁴

After consideration of the positions taken by Mr. Wilheim in this proceeding since March 1, 1958, the corrections which he himself had to make in his own testimony (e. g., N.T. 4-6 of 6/6/58), and the inaccuracies in the papers filed by him,...