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KLEVANSKY v. REDEVELOPMENT AUTHORITY (02/14/72)

decided: February 14, 1972.

KLEVANSKY, ET AL.
v.
REDEVELOPMENT AUTHORITY



Appeals from the Order of the Court of Common Pleas of Berks County in cases of Condemnation of Premises 46 South Seventh Street, Reading, Pennsylvania, by the Redevelopment Authority of the City of Reading, No. 37 March Term, 1967 and Condemnation of Premises 40, 42, 44 South Seventh Street and 636-638 Cherry Street, Reading, Pennsylvania, by the Redevelopment Authority of the City of Reading, No. 230 April Term, 1967.

COUNSEL

Raymond C. Schlegel, with him Scott L. Huyett, Carl F. Mogel and Balmer, Mogel, Speidel & Roland, for appellants.

Donald F. Spang, with him Charles K. Derr, Jr., D. Frederick Muth and Adam B. Krafczek, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Rogers. Opinion by Judge Kramer. Judge Crumlish, Jr. concurs in result only.

Author: Kramer

[ 4 Pa. Commw. Page 366]

This is an appeal from an Opinion (dated July 8, 1971) and Order (dated August 24, 1971) of the Court of Common Pleas of Berks County, distributing certain escrow funds to the city, school and county taxing authorities of the City of Reading.

All of the necessary and pertinent facts in this case were stipulated for the record in a colloquy of counsel before the court below. On February 14, 1967, and on March 21, 1967, the Redevelopment Authority of the City of Reading (Authority) filed Declarations of Taking covering certain properties of the appellants (Leon and Earl Klevansky), situated in the City of Reading.

[ 4 Pa. Commw. Page 367]

Each of the two Declarations of Taking was separately docketed. On March 13, 1967 and April 19, 1967, the Klevanskys timely filed Preliminary Objections to the Declarations of Taking. These Preliminary Objections were withdrawn on December 24, 1969, following almost three years of court proceedings thereon.

The Klevanskys remained in possession of the condemned properties and continued to use them in the conduct of their business until December 1, 1969, at which time the premises were leased by the Klevanskys to a tenant for a term extending through May 31, 1970. The record further indicates that the lease term was again extended to at least the end of August 1970. Throughout the term of the lease, the Klevanskys received the rental payments. The record is not clear as to whether the tenant continued in possession thereafter. However, the record is very clear that the Authority did obtain actual possession of the property on October 19, 1970.

After withdrawal of the Preliminary Objections, a Board of View was appointed, which ultimately awarded a total of $161,000 in damages to the Klevanskys for the condemned properties. No appeals were taken from the award of the Board of Viewers. On October 19, 1970, the Authority paid $156,318.95 to the Klevanskys, and placed the remaining $4,681.05 of the award in the monies in escrow. These monies were to be held in escrow pending a determination of whether the Authority or the Klevanskys were responsible for the payment of various real estate taxes on the condemned premises for the years 1969 and 1970. The record shows that the Klevanskys paid all (county, school district and city) of the real estate taxes for the years 1967 and 1968, and likewise paid the city real estate taxes for the year 1969. All of the other real estate taxes for the years 1969 and 1970 went unpaid. In

[ 4 Pa. Commw. Page 368]

    addition to the escrowed $4,681.05 of the Klevanskys award monies, the Authority, from its own funds, added $1,485.50 to the escrow funds, representing its pro rata share of the 1970 real estate taxes for the balance of the year 1970, i.e., ...


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