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BERNARD H. FINK AND MABEL E. FINK VS RICHARD P. NOLL (05/09/79)

SUPERIOR COURT OF PENNSYLVANIA


May 9, 1979

BERNARD H. FINK AND MABEL E. FINK VS RICHARD P. NOLL, EXECUTOR OF THE ESTATE OF KENNETH FINK, SR.; APPEAL OF MONA KELLER

No. 208 March Term, 1978, Appeal from Order of the Court of Common Pleas, Civil Division, of York County, at No. 76-S-651.

Before Van Der Voort, Watkins, And Lipez, JJ.

Per Curiam:

Order affirmed.

MEMORANDUM IN SUPPORT OF PER CURIAM ORDER:

Appeal is taken from an Order refusing appellant's requested intervention in a law suit, the outcome of which would practically extinguish her interest in a decedent's estate. Briefly stated the facts are that the law suit was begun in which plaintiffs claimed that decedent had executed and delivered to them a certain judgment note in the amount of $100,000. Being a residuary legatee of the estate, and realizing that payment of or settlement for the amount of the alleged debt would reduce and probably wipe out her share in the estate of Kenneth Fink, Sr., our appellant during the pendency of the suit sought to intervene, presumably to contest the validity of the note. In December of 1976 she obtained a stay of proceedings until the last business day of January, 1977, for her counsel to investigate her claim. No further action toward intervention coming from appellant, the court after consideration entered judgment for plaintiff, following which the Orphans' Court Division notified the parties in interest of the proposed distribution of the estate. In June of 1978, appellant sought to intervene and was refused.

Appellant alleges error below in refusing her petition to intervene some one-and-one-half years after her court-granted opportunity to do so had passed without action by her, and long after judgment had been entered disposing of the case in which she sought to intervene. We disagree with appellant's reliance upon equitable considerations, and find no legal or equitable reasons for error in the lower court's conclusion that the application for intervention was too late. Pa. R.C.P. Rule 2327 and Admiral Homes v. Floto Corp., 397 Pa. 509, 156 A.2d 326 (1959).

Order affirmed.

19790509

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