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MATTER CONDEMNATION BY REDEVELOPMENT AUTHORITY CITY MCKEESPORT (12/17/75)

decided: December 17, 1975.

IN THE MATTER OF: CONDEMNATION BY REDEVELOPMENT AUTHORITY OF THE CITY OF MCKEESPORT, ALLEGHENY COUNTY, PENNSYLVANIA, FOR URBAN REDEVELOPMENT PURPOSES OF CERTAIN PROPERTIES IN THE DOWNTOWN URBAN RENEWAL PROJECT, PA. R-125 IN THE CITY OF MCKEESPORT, PENNSYLVANIA, BEING THE PROPERTY OF: BERGER-KUTNER REALTY CORPORATION, OR ANY OTHER PERSONS FOUND TO HAVE AN INTEREST IN THE PROPERTY. BERGER-KUTNER REALTY CORPORATION, APPELLANT


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In The Matter of: Condemnation by Redevelopment Authority of the City of McKeesport, Allegheny County, Pennsylvania, for Urban Redevelopment Purposes of Certain Properties in the Downtown Urban Renewal Project, Pa. R-125 in the City of McKeesport, Pennsylvania, being the Property of Berger-Kitner Realty Corporation, or any other persons found to have an interest in the property, No. 2378 July Term, 1969.

COUNSEL

Robert Palkovitz, with him Palkovitz and Palkovitz, for appellant.

Thomas J. Dempsey, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.

Author: Bowman

[ 22 Pa. Commw. Page 392]

Appellant-condemnee property owner would have us declare its entitlement to delay compensation solely because of alleged noncompliance by the condemnor with Section 522 of the Eminent Domain Code*fn1 in failing to attach a "schedule of proposed distribution" to its petition to deposit estimated just compensation and payment thereof into court. The Section 522 proceedings were initiated by the condemnor, Redevelopment Authority of the City of McKeesport (appellee) to obtain possession of condemnee's property pursuant to Section 407 of said Act, 26 P.S. ยง 1-407.

The genesis of this appeal was the filing of a declaration of taking by appellee on June 16, 1969, against property owned by the Berger-Kutner Realty Corporation (appellant). Thereafter, appellee filed its petition to deposit estimated just compensation which contained averments that the appellee needed immediate possession and that the various parties holding compensable interests in the property could not agree on the distribution of the estimated just compensation. These facts were uncontroverted by appellant's pleadings. Pursuant to an order of the lower court, appellee deposited the sum of $110,000.00 representing its estimate of just compensation.

The petition also identified five tenants believed to have leasehold interests in the premises as well as liens of record at the time of the taking, but did not contain any document formally captioned "schedule of proposed distribution."

Appellant at no time petitioned for distribution of the deposited funds as it was empowered to do by Section 522. However, in February of 1973, upon the petition

[ 22 Pa. Commw. Page 393]

    of the second mortgagees,*fn2 distribution of the $110,000.00 was made pursuant to a formal schedule of proposed distribution filed by appellee at that time.

In the interim, appellee had requested a board of viewers, and ultimately, a jury fixed just compensation at $175,800.00.*fn3 After payment of all taxes and liens, $39,715.16 remained for distribution to appellant.

Apparently dissatisfied with its compensation and seeking greater remuneration for its property, appellant then filed a petition for delay compensation on the $110,000.00 deposit, which petition was ...


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