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CONDEMNATION BY COMMONWEALTH PENNSYLVANIA (06/28/78)

decided: June 28, 1978.

IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT-OF-WAY FOR LEGISLATIVE ROUTE 1021, SECTION 3TR/W, A LIMITED ACCESS HIGHWAY, IN THE CITY OF PITTSBURGH. PROPERTY OF MAX AND FRANCES GROSS. CLAIM NO. 0213115, PARCEL NO. 95. UNITED STATES, APPELLANT


Appeal from the Orders of the Court of Common Pleas of Allegheny County in case of In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right-of-Way for Legislative Route 1021, Section 3 TR/W, a Limited Access Highway in the City of Pittsburgh -- Property of Max and Frances Gross, Claim No. 0213115, Parcel No. 95, No. 3161 July Term, 1973.

COUNSEL

Wynette J. Hewett, with her Gilbert E. Andrews, Richard Farber, M. Carr Ferguson, Assistant Attorney General, and, of counsel, Blair A. Griffith, United States Attorney, and Craig R. McKay, Assistant United States Attorney, for appellant.

William P. Bresnahan, Assistant County Solicitor, with him Alexander J. Jaffurs, County Solicitor, for appellee, County of Allegheny.

John Regis Valaw, Tax Lien Solicitor, for School District of Pittsburgh and City of Pittsburgh.

President Judge Bowman and Judges Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Judge Crumlish, Jr. did not participate. Opinion by Judge Mencer.

Author: Mencer

[ 36 Pa. Commw. Page 347]

Max Gross and Frances Gross, husband and wife (Gross) purchased, in 1959, a tract of real property in Pittsburgh, Pennsylvania. Thereafter, this property became encumbered by three mortgages. The first

[ 36 Pa. Commw. Page 348]

    mortgage held by E. B. Hostoffer and his wife was given to secure the payment of $25,000 for the purchase of the property and was recorded on June 24, 1959. The second mortgage held by Commercial Bank and Trust Company, in the amount of $28,000, was recorded on December 11, 1968. A third mortgage held by the United States was given to secure the payment of certain taxes,*fn1 in the amount of $137,164.55, and was recorded on July 3, 1969. The property also became encumbered by liens based upon unpaid city, county, and school taxes.

The instant case was initiated by the Department of Transportation of the Commonwealth of Pennsylvania's paying into the Court of Common Pleas of Allegheny County (Court) the sum of $80,000, the estimated just compensation for the taking of the real property owned by Gross, for distribution to those parties who had claims against the property. A special master was appointed for the purpose of determining the order of priority of the various claims. The master filed his report and, on March 21, 1977, the Court adopted the master's report and ordered distribution of the fund. On April 6, 1977, the Court amended its prior order of distribution "to conform to the Report of the Master." The United States, one of the claimants, filed a motion for a stay of the order of April 6, 1977, on the ground that the order as amended

[ 36 Pa. Commw. Page 349]

    did not conform to the master's report. On April 29, 1977, the Court denied the United States' motion to amend its order of April 6, 1977, and this appeal followed.

The Court, after making allowance for a master's fee of $1300, ordered the fund deposited with the Prothonotary distributed in the following manner:

1. City of Pittsburgh and School District

     of the City of Pittsburgh ...


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