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BRANDYWINE SAVINGS AND LOAN ASSOCIATION v. REDEVELOPMENT AUTHORITY CHESTER COUNTY (09/04/86)

decided: September 4, 1986.

BRANDYWINE SAVINGS AND LOAN ASSOCIATION, APPELLANT
v.
REDEVELOPMENT AUTHORITY OF CHESTER COUNTY, GEORGE J. D'AMBROSIO AND MANITO TITLE INSURANCE COMPANY, APPELLEES



Appeal from the Order of the Court of Common Pleas of Chester County, in case of Brandywine Savings and Loan Association v. Redevelopment Authority of Chester County, George J. D'Ambrosio and Manito Title Insurance Company, Jury of View No. 25, 1980.

COUNSEL

Glenvar E. Harman, Glenvar E. Harman Associates, for appellant.

George J. D'Ambrosio, with him, James T. Owens, Owens, D'Ambrosio & Nescio, for appellees.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge MacPhail. Dissenting Opinion by Judge Colins.

Author: Macphail

[ 100 Pa. Commw. Page 295]

Brandywine Savings and Loan Association (Brandywine) appeals here from an order of the Court of Common Pleas of Chester County awarding George J. D'Ambrosio counsel fees in the amount of $3,250.00 from funds held in his attorney escrow account. We reverse.

Jose A. Toledo (condemnee) acquired title in 1976 to property located at 211 East Market Street, West Chester, Chester County, Pennsylvania as recorded in the Office of the Recorder of Deeds in and for Chester County in Deed Book M-48 page 36. On July 24, 1979, Brandywine recorded a mortgage on these premises in Deed Book D-58 page 546.

On February 6, 1980, the Redevelopment Authority of the County of Chester (Authority) filed a declaration

[ 100 Pa. Commw. Page 296]

    of taking condemning the property located at 211 East Market Street in West Chester. The Authority paid $8,250.00 to condemnee as estimated just compensation. That money was retained by D'Ambrosio in his escrow account because of possible claims against the fund by reason of the fact that the condemnee had filed for bankruptcy and because of the outstanding mortgage.*fn1 The Authority, as condemnor, petitioned the court of common pleas for the appointment of a board of view, which was granted. The petition listed only condemnee as having an interest in the property.

Only the condemnee and the Authority were represented and participated in both the view and the hearing. The board of view awarded general damages in the amount of $14,200.00 and counsel fees in the amount of $500.00 to condemnee, for a total award of $14,700.00. No appeal to the court of common pleas was taken from that award. The Authority paid the additional $5,950.00 as just compensation at settlement to Manito Title Insurance Company (Manito), to be held in escrow.

Thereafter, Brandywine filed a petition in the trial court naming the Authority, D'Ambrosio and Manito as Respondents. The petition averred that there was a balance due and owing on Toledo's mortgage of $18,335.42, that the Authority knew or should have known of Brandywine's mortgage interest and that the Authority was obligated under the provisions of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. ยงยง 1-101 -- 1-903, to provide Brandywine with notice of the condemnation. Brandywine alleged further ...


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