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ANTHONY R. OLIASTRO v. BOROUGH ELLWOOD CITY. APPEAL NICK A. FRISK (12/31/84)

filed: December 31, 1984.

ANTHONY R. OLIASTRO, ROCCO CUSATO AND NICK A. FRISK, JR., ESQ.
v.
BOROUGH OF ELLWOOD CITY. APPEAL OF NICK A. FRISK, JR., ESQ.



COUNSEL

Scott L. Melton, Conway, for appellants.

Edward Leymarie, Jr., Ellwood City, for appellee.

Rowley, Tamilia and Hester, JJ. Rowley, J., filed a dissenting statement.

Author: Hester

[ 337 Pa. Super. Page 184]

In 1961, Anthony Oliastro and Rocco Cusato owned several earth-moving vehicles used in their excavating business in Beaver County. The vehicles were parked across from Oliastro's residence on Summit Avenue which prompted the filing of frequent complaints by neighbors with the Borough of Ellwood City (hereinafter "appellee").

Although the vehicles were parked legally, appellee encouraged Oliastro and Cusato to move them to a large tract of land it owned and used primarily for a refuse dump. The two men agreed, and they executed a yearly lease for a monthly rental of $35.00.

Appellee also promised to transfer title to a portion of the property to both men providing they renovated a house on the premises and performed some excavation. Following the expenditure of $16,000.00 in labor and materials, the house was made habitable, and Oliastro moved in. Approximately $20,000.00 in labor and materials was expended to move earth, garbage and a strip mine spoil pile in order that parking space would be available for said vehicles. Appellee permitted the men to erect a large garage for their trucks and a tool shed for smaller equipment at a cost of $6,000.00. Oliastro and Cusato completed other projects for the benefit of appellee.*fn1

[ 337 Pa. Super. Page 185]

In 1973, the Pennsylvania Department of Transportation offered to purchase a portion of the property in question for the construction of a highway. In the event the Department purchased any portion of the property to be conveyed to Oliastro and Cusato, appellee agreed to compensate them for their expenses and effort.

In 1973, Oliastro and Cusato retained appellant, Nick A. Frisk, Jr., Esq., to represent them in the condemnation proceeding. On March 19, 1974, appellant and Oliastro met with borough council, Ellwood City's mayor, and the borough solicitor and manager. Prior to the meeting, the Department of Transportation had offered $11,000.00, to be divided between appellee and the tenants, as a condemnation settlement.

As a result of the meeting, borough council voted to authorize appellant to negotiate in an effort to obtain a higher offer for appellee while he was negotiating in behalf of the tenants. The offer of $11,000.00 was reduced to a pro tanto payment, the draft was endorsed by the tenants and the entire amount given to appellee. A second pro tanto payment in the amount of $20,760.00 was divided accordingly: $7,000.00 to appellee, $4,000.00 to Oliastro and Cusato each and $5,760.00 to appellant in attorney fees calculated on the amount received by tenants. The first pro tanto payment was issued in December, 1974; the second was issued in December, 1975.*fn2

[ 337 Pa. Super. Page 186]

Following the disbursement of the second pro tanto payment, appellant notified the borough solicitor and borough manager that appellee had received its full compensation, and any additional sums received would be endorsed to the tenants. Appellant's letter was based upon his understanding of an agreement which he entered into with appellee and the tenants.

Thereafter, appellant filed a Petition for the appointment of a Board of Viewers in the Common Pleas Court of Beaver County, naming appellee, Oliastro and Cusato as claimants. On June 22, 1978, the Board of Viewers conducted a hearing and a final award was issued in favor of appellee in ...


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