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CAROL M. CAPTLINE AND EQUIBANK N.A. v. COUNTY ALLEGHENY. CAROL M. CAPTLINE (05/02/83)

decided: May 2, 1983.

CAROL M. CAPTLINE AND EQUIBANK N.A., CO EXECUTORS OF THE ESTATE OF MIKE MAZZARO, DECEASED
v.
COUNTY OF ALLEGHENY. CAROL M. CAPTLINE, CO-EXECUTOR OF THE ESTATE OF MIKE MAZZARO, DECEASED, APPELLANT. CAROL M. CAPTLINE AND EQUIBANK N.A., CO-EXECUTORS OF THE ESTATE OF MIKE MAZZARO, DECEASED V. SOLOMON & TESLOVICH, INC. AND RAM CONSTRUCTION CO., INC. CAROL M. CAPTLINE, CO-EXECUTOR OF THE ESTATE OF MIKE MAZZARO, DECEASED, APPELLANT



Appeals from the Orders of the Court of Common Pleas of Allegheny County in case of Carol M. Captline and Equibank, N.A., as Co-Executors of the Estate of Mike Mazzaro v. County of Allegheny, No. GD 81-02291, and in case of Carol M. Captline and Equibank, N.A., as Co-Executors of the Estate of Mike Mazzaro v. Solomon & Teslovich, Inc., and Ram Construction Co., Inc., No. GD 81-03197.

COUNSEL

William W. Milnes, with him Carl Brandt and Gary L. Milnes, Brandt, Milnes, Rea and Wagner, for appellant.

Samuel P. Kamin, Assistant County Solicitor, with him James H. McLean, County Solicitor, for appellee, County of Allegheny.

Richard B. Tucker, III, with him Anthony P. Picadio, Tucker, Arensberg, Very & Ferguson, for appellees, Solomon & Teslovich, Inc. and Ram Construction Co., Inc.

President Judge Crumlish, Jr. and Judges MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 74 Pa. Commw. Page 86]

Carol M. Captline and Equibank N.A. (Appellants) have brought these appeals from orders of the Court of Common Pleas of Allegheny County sustaining the preliminary objections of Allegheny County (County)

[ 74 Pa. Commw. Page 87]

    to a petition for the appointment of viewers as well as the preliminary objections to a complaint in trespass and for an accounting filed by Solomon and Teslovich, Inc. and Ram Construction Company, Inc.

The facts of this case are stipulated.*fn1 Appellants are co-executors of the estate of Mike Mazzaro. Mazzaro acquired title to a 104.085 acre tract of land in Findlay Township, Allegheny County by a deed executed on February 17, 1955, from Cosgrove Coal Company*fn2 (Cosgrove Coal). The deed expressly excepted and reserved to Cosgrove Coal all the mineral rights underlying the tract of land.

On March 4, 1958 and May 5, 1959, the Board of Commissioners of Allegheny County (Commissioners) condemned (hereinafter the 1958/1959 condemnation) the tract of land for the purpose of constructing an airport.*fn3 The resolutions provided in pertinent part for the acquisition of title of the lands described "in fee simple, said property being owned by Mike Mazzaro." The County filed a petition for the appointment of viewers in the Court of Common Pleas. Notice was given to Mazzaro, was posted on the property and was published in three local papers. The report of viewers, submitted to the Court of Common Pleas on October 19, 1961, determined the value of the property condemned to be $71,980.*fn4 The report did not allocate any amount of the award to Cosgrove Coal, nor did it make

[ 74 Pa. Commw. Page 88]

    any reference to the coal interest. No appeal was taken from this report and Mazzaro received ...


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