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ESTATE MARY L. ALBRIGHT (05/03/88)

argued: May 3, 1988.

IN RE ESTATE OF MARY L. ALBRIGHT, A/K/A MARY L. HAYES, DECEASED. APPEAL OF BEHREND, MORAN, ERNSBERGER AND TAMILIA FOR KENNETH W. BEHREND, MARK B. ARONSON, CHARLES M. ALBRIGHT, ADMINISTRATOR OF THE ESTATE MR. HAYES, ALLEGED HUSBAND OF MARY L. ALBRIGHT, A/K/A MARY L. HAYES. IN RE ESTATE OF MARY L. ALBRIGHT, A/K/A MARY L. HAYES, DECEASED. APPEAL OF THE ALLEGED LAW FIRM OF BEHREND, ERNSBERGER AND MORAN MARK B. ARONSON, HIMSELF CHARLES M. ALBRIGHT, ADMINISTRATOR OF THE ESTATE MR. HAYES, ALLEGED HUSBAND OF MARY L. ALBRIGHT, A/K/A MARY L. HAYES


Appeal from the Order Entered December 8, 1986 in the Court of Common Pleas of Allegheny County, Orphans' Division, No. 9 of 1974. Appeal from the Order November 14, 1986 in the Court of Common Pleas of Allegheny County, Orphans' Division, No. 9 of 1974.

COUNSEL

George K. Hanna, Washington, for appellant (at 1733).

Kenneth R. Behrend, Pittsburgh, for appellant (at 156).

John W. Gibson, Pittsburgh, for appellees.

Cirillo, President Judge, and Beck and Popovich, JJ.

Author: Cirillo

[ 376 Pa. Super. Page 203]

This is a consolidated appeal challenging two orders of the Orphans' Division of the Court of Common Pleas of Allegheny County.*fn1 Number 156 appeals the denial of permission to intervene requested by the firm of Behrend, Moran, Ernsberger & Tamilia, and number 1733, filed by "the alleged firm of Behrend, Moran and Ernsberger", challenges an assessment of surcharge. Also before the court is appellant Behrend, Moran, Ernsberger & Tamilia's application for a stay of the appeal at number 1733.

I. Application For Stay and Appeal at No. 156 Pittsburgh 1987

The first issue before the court is appellant Behrend, Moran, Ernsberger & Tamilia's [hereinafter B, M, E & T]

[ 376 Pa. Super. Page 204]

    application for a stay, filed with this court on March 6, 1987. On March 31, 1987, we directed that the motion for stay be argued before the panel. Because this motion asks us to delay proceeding on the other appeal in this matter, No. 1733, which has been consolidated with B, M, E & T's appeal pursuant to our order of March 31, 1987, until after this firm's individual appeal is heard, we must first rule on the motion.

B, M, E & T asserts that a favorable decision on its appeal from the denial of permission to intervene will necessitate delaying the hearing by this court of the issues raised in the other appeal, as allowance of its intervention would mean an opportunity for B, M, E & T to address the issues involved and would affect the substantive rights of all involved. If, however, its argument on appeal is not sustained, there would be no need for a stay. Therefore, in order to reach a decision on the requested stay, we must examine the merits of B, M, E & T's appeal. The merits of this appeal are also germane to our determination of whether the denial of intervention is to be considered a final order, appealable of right. Boise Cascade Corp. v. East Stroudsburg Savings Assn., 300 Pa. Super. 279, 446 A.2d 614 (1982).

The abbreviated history applicable to B, M, E & T's appeal begins with the entry of an order of surcharge on June 10, 1986, which provided that "the law firm of Behrend, Ernsberger and Moran" was to pay a designated sum to the administrator of the estate. Subsequent to the entry of this order, Behrend, Moran, Ernsberger and Tamilia, appellants here, filed exceptions on behalf of Mr. Behrend. Among these was the following:

No. 58. It is an error of law and fact to make an award against Behrend, Ernsberger and Moran.

After argument, these exceptions were dismissed by the court en banc on November 14, 1986, and the order of June 10th confirmed absolute. B, M, E & T's petition to intervene was filed after the November 14th ruling, on December 8th. It recited that there was no legal entity called

[ 376 Pa. Super. Page 205]

"Behrend, Ernsberger and Moran" and that the legal interests of B, M, E & T might be adversely affected by the surcharge. The petition, which was denied, after argument, on December 8, 1986, did not specify how B, M, E & T's legal interests might be affected if it were not allowed to intervene, nor does its statement of questions for appeal do more than raise the specter of possible liability because of partnership law. It does not set forth the nature of the partnership relationship which it implies could make the liability imposed by the surcharge order applicable to it. B, M, E & T, as far as the record shows, has not shown that, absent intervention, it would be unable to protect its interests. The trial court, in fact, denied its petition for the very reason that it found B, M, E & T's interests already adequately represented.

B, M, E & T argues that it was error for the court to deny its petition without a hearing with notice to all parties as required by Pa.R.C.P. 2329. The Estate of Mary Albright, appellee in these matters, argues that the petition seeking intervention was untimely. The court's opinion in support of the denial states that the reasons advanced for intervention were specious in that they revolved around "the juggling of names, not on a party's legal rights." It based its denial on Pa.R.C.P. 2329(2) which allows a petition for intervention to be denied if the interest of the petitioner is already adequately represented, which it found to be the case in this matter.

At the outset, it is important to note that Mr. Behrend and the firm of Behrend and Aronson [hereinafter B & A] were, for many years, counsel to the Albright family and were, for nearly ten years, counsel to the administrator for the Albright Estate, which relationship has given rise to the matters now on appeal. Mr. Behrend has evidently been associated with a number of partners over the time period covered by this litigation. It is abundantly clear from the court's opinion in support of the orders challenged in the consolidated appeals, of which B, M, E & T's is one, that Mr. Behrend and the firm of Behrend and Aronson were responsible for the acts for which the surcharge was assessed.

[ 376 Pa. Super. Page 206]

Mr. Aronson disassociated himself from Behrend and Aronson in mid-December of 1983 and the firm of B, M, E & T was formed at some unspecified point after these acts, other associations of Mr. Behrend prior to the formation of B, M, E & T being unclear.

The estate points out that B, M, E & T was clearly aware as of the entry of the June 10, 1986 order that the entity named therein may have been incorrect. The record bears this out in that B, M, E & T represented Mr. Behrend in filing exceptions to that order, including one, referenced above, which challenged this portion of the order. If B, M, E & T felt its own interests to be jeopardized by this misnomer, it could have petitioned to intervene at any point prior to the resolution of the exceptions by the court en banc on November 14, 1986. On that date, the June 10th order was made final and the matter concluded. B, M, E & T's petition to intervene was filed nearly a month later on December 8th.

To petition the court to intervene after a matter has been finally resolved is not allowed by our Rules of Civil Procedure. It is only during the pendency of an action that the court may allow intervention. Pa.R.C.P. 2327. An action is "pending", according to Black's Law Dictionary (5th Ed.), when it is:

     begun, but not yet completed; during; before the conclusion of; prior to the completion of; unsettled; undetermined; in process of settlement or adjustment. Thus, an action or suit is "pending" from its inception until the rendition of final judgment.

See Admiral Homes, Inc. v. Floto Management Corp., 397 Pa. 509, 156 A.2d 326 (1959); School Dist. of Robinson Twp. v. Houghton, 387 Pa. 236, 128 A.2d 58 (1956); Newburg by Newburg v. Board of Public Educ., 330 Pa. Super. 65, 478 A.2d 1352 (1984). As our Commonwealth Court recognized in Santangelo Hauling, Inc. v. Montgomery County, 84 Pa. Commw. 427, 479 A.2d 88 (1984), where a court no longer has power to permit intervention because a matter has been finally adjudicated, a hearing on a petition to intervene would be pointless.

[ 376 Pa. Super. Page 207]

Especially where the party proposing its intervention has had ample notice and opportunity to protect its interests earlier, to allow intervention at such a late date would unduly prejudice the interests of a party in whose favor the matter has been resolved. Pa.R.C.P. 2329(3); accord, Jackson v. Hendrick, 498 Pa. 270, 446 A.2d 226 (1982). Therefore, however correct B, M, E & T may be with regard to the necessity for a formal hearing before disposing of a petition to intervene, that argument is irrelevant where the petition was not timely filed.

We may not disturb the chancellor's ruling unless there has been a manifest abuse of discretion. Marion Power Shovel Co. v. Fort Pitt Steel, 285 Pa. Super. 45, 426 A.2d 696 (1981); Harrington v. Philadelphia City Employees Federal Credit Union, 243 Pa. Super. 33, 364 A.2d 435 (1976). There was no abuse of discretion here. Because the record is unclear, this court is unable to determine with certainty whether the order appealed from should be treated as final. See Scharnitzki v. Bienenfeld, 368 Pa. Super. 610, 534 A.2d 825 (1987). No party has moved to quash this appeal. However, whether we defer to the trial judge and quash the appeal as interlocutory or give B, M, E & T the benefit of any doubt and hear the appeal, the result is the same. We, therefore, in an exercise of caution and recognizing the complexity of the issues raised in these consolidated appeals, refrain from quashing this appeal sua sponte.

For the above reasons, and those recited by the chancellor, we find that B, M, E & T's appeal cannot be sustained. Because its argument on appeal cannot be ...


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