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March 19, 1958

J. K. CREASY, William W. McNamee, Frank Ranallo, A. W. Tuiccillo, Ed Kleeman and R. G. Cummiskey, on behalf of themselves and other property owners and lesses similarly situated, Plaintiffs,
Lewis M. STEVENS, Secretary of Highways of the Commonwealth of Pennsylvania, and George M. Leader, Governor of the Commonwealth of Pennsylvania, Defendants. Jack C. MARSHELL and Alice E. Marshell, Plaintiffs, v. Lewis M. STEVENS, Secretary of Highways of the Commonwealth of Pennsylvania, and George M. Leader, Governor of the Commonwealth of Pennsylvania, Defendants

The opinion of the court was delivered by: MARSH

The plaintiffs in these actions before a statutory court *fn1" seek to have a statute of the Commonwealth of Pennsylvania, Act of 1945, May 29, P.L. 1108, 1 et seq., as amended, 36 Purdon's Pa.Stat.Ann. § 2391.1 et seq. (hereinafter referred to as 'statute'), as applied to them, declared violative of the Constitution of the United States, and to have the defendants, the Governor and Secretary of Highways of the Commonwealth of Pennsylvania, permanently enjoined from enforcing said statute. We think they are so entitled.

 Most of the important facts have been stipulated. *fn2" The plaintiffs are owners or tenants of land in Allegheny County, Pennsylvania, abutting a public highway known as the 'Airport Parkway' (hereinafter referred to as 'parkway'), which highway extends from U.S. Routes 22-30, with which it intersects, to the Greater Pittsburgh Airport in said county.

 Under the statute, the Secretary of Highways of Pennsylvania, with the approval of the Governor of Pennsylvania, is empowered to take over existing highways in the Commonwealth of Pennsylvania and to declare any such highway a 'limited access highway' which is defined by the statute as a '* * * public highway to which owners or occupants of abutting property or the traveling public have no right of ingress or egress to, from or across such highway, except as may be provided by the authorities responsible therefor. * * *', 36 Purdon's Pa.Stat.Ann. § 2391.1. Section 8 of the statute, 36 Purdon's Pa.Stat.Ann. § 2391.8, provides that '* * * the owner or owners of private property affected by the * * * designation of a limited access highway * * * shall be entitled only to damages arising from an actual taking of property. The Commonwealth shall not be liable for consequential damages where no property is taken * * *.'

 The defendants admit that were it not for the restraining order and a subsequent preliminary injunction granted by this court, the parkway would have been taken over as a state highway and designated a 'limited access highway' under the statute. In that event, which would be the first instance in Pennsylvania where an existing highway has been designated a limited access highway under the statute, all of the plaintiffs will be denied direct access to the parkway from their land. Certain of the plaintiffs will have no means of access of any public highway, and in effect their property will be land-locked and completely inaccessible for most purposes. In declaring the parkway a limited access highway, under the authority of the statute, the Commonwealth would not take any land or improvements presently owned or leased by the plaintiffs.

 Plaintiffs assert that § 8 of the statute, under the present decisional law of the Supreme Court of Pennsylvania, denies them compensation for any deprivation of access not accompanied by an actual physical taking of land, and in that event they would be deprived of property without due process of law as guaranteed them by the Fourteenth Amendment of the United States Constitution.

 Initially, the instant proceedings were stayed because we were of the opinion that whether a substantial federal question was involved depended on the construction given the statute, and, further, we were unwilling to resolve that issue until the courts of the Commonwealth of Pennsylvania first had an opportunity to construe the statute in respect to the matter here in controversy.

 Accordingly, the plaintiffs filed an action in equity against the defendants in the Court of Common Pleas of Dauphin County, Pennsylvania, requesting relief identical to that sought here.

 Upon preliminary objections of the defendants, the Dauphin County Court dismissed the plaintiffs' complaint, holding that under § 8 of the statute, the plaintiffs were afforded an adequate remedy at law to test their right to damages, if any, before a board of viewers. It specifically refrained from adjudicating the pivotal issue of whether or not plaintiffs could recover damages in such proceedings. On appeal, the Supreme Court of Pennsylvania affirmed the decision of the lower court. *fn3"

 Subsequently, the plaintiffs filed a motion here for a permanent injunction enjoining the defendants from enforcing the statute, and on the same date, the defendants moved to dissolve the preliminary injunction and to dismiss the complaint, which matters are presently before the court for decision.

 At the time these proceedings were instituted and at the present time, the parkway is the principal thoroughfare for vehicular travel between the City of Pittsburgh, Pennsylvania, and the Greater Pittsburgh Airport, and a vast number of vehicles daily pass the properties of the plaintiffs. The success of all the businesses now in existence and those contemplated by the plaintiffs, or their prospective assigns, depends almost entirely on the continued enjoyment of access to the parkway.

 In the past, some of the plaintiffs had been carrying on negotiations to either sell or lease their land for very attractive prices, but the negotiations were broken off by the interested parties because of the publicity connected with the plans of the Commonwealth to designate the parkway a limited access highway.

 It is impossible at this time to ascertain with any degree of certainty the extent or degree of damage that would be incurred by the individual plaintiffs because of the deprivation of access involved; however, it would appear from convincing testimony introduced by the plaintiffs that the properties as a whole would depreciate in value in an amount in excess of one million dollars.

 The parkway is presently maintained by the County of Allegheny, having been constructed by it in 1949 after it condemned, through the exercise of its power of eminent domain, the necessary quantities of land for the right-of-way. In some instances, part of the land owned or leased by the plaintiffs was 'taken'. In accordance with the established law in Pennsylvania, *fn4" the Board of Viewers when assessing damages to the property owners for their land so taken, diminished the damages to the extent that the abutting properties were enhanced in value because of the benefits obtained by reason of the frontage on the new parkway and the access thereto. *fn5"


 Federal jurisdiction in these cases is based on the plaintiffs' allegation of a substantial federal question, to-wit, that the 'Pennsylvania Limited-Access Highway Act' as applied to them is violative of the Fourteenth Amendment of the United States Constitution in that it deprives them of their property without due process of law, and denies them the equal protection of the laws. See Delaware, L. & W.R. Co. v. Town of Morristown, 1928, 276 U.S. 182, at page 193, 48 S. Ct. 276, 72 L. Ed. 523, for a discussion of compensation as an element of due process; see also 16A C.J.S. Constitutional Law § 646.

 Each of the plaintiffs proved that if the parkway were designated limited-access, he would suffer damages in excess of the requisite jurisdictional amount, *fn6" and in the Marshall case there is the additional allegation of diversity of citizenship.

 Both cases were consolidated for hearing, and as required by 28 U.S.C. § 2281 were heard by a three-judge court. The defendants concede that this court has jurisdiction; *fn7" however, relying on the authority of City of El Paso v. Texas Cities Gas Co., 5 Cir., 1938, 100 F.2d 501, 503, certiorari denied 306 U.S. 650, 59 S. Ct. 592, 83 L. Ed. 1049, rehearing denied 306 U.S. 669, 59 S. Ct. 643, 83 L. Ed. 1063, and Alabama Public Service Commission v. Southern Railway Co., 1951, 341 U.S. 341, 71 S. Ct. 762, 95 L. Ed. 1002, contend that we should not exercise our jurisdiction and grant the extraordinary relief requested because of the disinclination of the federal courts to interfere in state matters before remedies afforded by the state have been exhausted, and, especially so, where the State Courts have not yet rendered a clear or definitive decision as to the meaning of the statute.

 In Alabama Public Service Comm. v. Southern Railway Co., supra, the Supreme Court of the United States, although assuming it had jurisdiction, refused to exercise it to examine the constitutionality of an order of the Alabama Public Service Commission denying a permit to the plaintiff to discontinue certain intrastate trains on the ground that they were being operated at a loss. The plaintiff under Alabama law had the right prior to instituting the action in the federal court to have the order reviewed by the state courts but chose not to do so. The Supreme Court declined to exercise jurisdiction as a matter of sound equitable discretion because of comity and because it concluded that the court's intervention was not required to protect the plaintiff's constitutional rights.

 Likewise in City of El Paso v. Texas Cities Gas Co., supra, the United States Court of Appeals for the Fifth Circuit reversed the granting of a preliminary injunction to enjoin the enforcement of a city ordinance where the plaintiff had not taken an appeal provided by state statute.

 We agree that the federal courts should be reluctant to exercise jurisdiction in cases where the plaintiffs' constitutional rights will be properly protected in the state tribunal and where the statute under attack has not yet been construed by the State Courts, and this was our reason in originally staying these proceedings. However, there is another facet to be examined, and that is whether in the process of relegating the plaintiffs to the state tribunals to test the constitutionality of the statute, they will be irreparably harmed. See: Toomer v. Witsell, 1948, 334 U.S. 385, 68 S. Ct. 1156, 92 L. Ed. 1460.

 If the defendants proceeded with their plans to make the parkway limited-access, the businesses now established in all likelihood would have to be closed; some of the plaintiffs would not be able to make any practical use of their lands because of the loss of all access to public highways; and those plaintiffs who have conducted negotiations to sell or lease their properties for commercial uses dependent on the continued right of access would be deprived of an opportunity to realize a successful completion of the negotiations.

 Hence we are persuaded that were we to refuse to exercise our jurisdiction, the plaintiffs would suffer substantial financial losses during the time it would take to litigate the constitutionality of the statute in the State Courts, which losses could never be recouped if the statute were eventually declared to be unconstitutional. In that event plaintiffs would be irreparably harmed.

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