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September 23, 1959

Maurice HOFFMAN and Mary Hoffman, his wife, Plaintiffs,
Lewis M. STEVENS, Secretary of Highways, George M. Leader, Governor of theCommonwealth of Pennsylvania, or their successor, and J. Robert Bazley, Inc.,Defendants

The opinion of the court was delivered by: MURPHY

In this action before a three-judge court convened pursuant to 28 U.S.C.A. § 2281 and 2284, plaintiffs, abutting landowners, seek to have § 8 of the Act of 1945, May 29, P.L. 1108, 36 Purdon's Pa.St.Ann. § 2391.8, declared unconstitutional; to enjoin defendants from converting a section of Pennsylvania State Highway Route No. 29 in this district into a limited access highway, and from interfering with their property or their right of access thereto. In addition they contend that defendants denied them procedural due process by failing to provide a hearing as required by § 128 of the Federal-Aid Highways Act of August 27, 1958, Pub.L. 85-767, 72 Stat. 902, 23 U.S.C.A. § 128. *fn1"

 Jurisdiction arises under 28 U.S.C.A. § 1331(a) -- a claim for the requisite jurisdictional amount arising under the Constitution and laws of the United States.

 Defendants move to dismiss -- F.R.Civ.Proc. Rule 12(b), 28 U.S.C.A. -- for failure (a) to state a claim upon which equitable relief can be granted; (b) to exhaust adequate legal remedies available in the Pennsylvania courts; (c) the Commonwealth of Pennsylvania -- the real party in interest, necessary and indispensable -- is not and under the XI Amendment of the United States Constitution cannot be made a party defendant; (d) lack of jurisdiction over defendant officials; (e) laches. *fn2"

 To facilitate movement of traffic the Pennsylvania Secretary of Highways with the approval of the Governor declared and established a section of State Highway Route No. 29 (Legislative Rt. No. 163) a limited access highway. Act OF 1945, supra, §§ 1, 2(a, b), 6, 36 Purdon's Pa.St.Ann. §§ 2391.1, 2391.2(a, b), 2391.6. *fn3" The plan was approved by the Governor, filed in the office of the Recorder of Deeds of Carbon County, the locus in quo, and defendant contractor engaged to do the required widening, construction and conversion.

 Section 8 of the Act, Id. § 2391.8, empowers the Secretary of Highways to take property and pay damages therefor but provides: 'The owner or owners of private property affected by the construction or 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 * * *.'

 'In boroughs and cities such property shall be taken and damages paid therefor in the same manner as * * * provided by law for the relocation or widening of State highways in boroughs.' Id. See Act May 4, 1927, P.L. 519, Art. XIV, § 1401 as amended, 53 Purdon's Pa.Stat.Ann. § 46401 et seq.

 Included in the property actually taken was approximately 3 1/2 acres, a part of plaintiffs' tract located in the Borough of Parryville. A portion thereof abutted for some 1,800 feet on both sides of Route 29. Plaintiffs maintained their home and conducted an automobile parts, graveyard and scrap metal business there for 25 years. Only that portion included in the right of way was condemned and plaintiffs' building and personal property removed therefrom. The rest of plaintiffs' tract, their buildings and personal property, remains in plaintiffs' possession. Thereafter construction proceeded according to plans and specifications. *fn4" Meanwhile plaintiffs have access by means of a dirt road. Upon completion of the project access will be provided by a service road paralleling Legislative Rt. No. 163 from a point within 200 feet of the main building extending 2,800 feet to a point on the new highway.

 We assume arguendo that earlier unofficial plans contemplated another exit about 100 feet west of the main building and that if it was provided plaintiffs could continue business at the same location with minimum loss; whereas under the official plans they will have to move and that zoning regulations make location nearby difficult if not impossible. Plaintiffs were not only advised that the Commonwealth intended to make just compensation but terms of possible settlement were actually discussed.

 Plaintiffs rely principally upon Creasy v. Stevens, D.C.W.D.Pa.1958, 160 F.Supp. 404, 411, wherein § 8 as applied to the parties therein and under the circumstances there present, was declared unconstitutional; *fn5" but that decision was reversed in Martin etc. v. Creasy, 1959, 360 U.S. 219, 79 S. Ct. 1034, 3 L. Ed. 2d 1186, and here there was an actual physical taking. See and cf. Note 63 Dickinson Law Review 163.

 'The fundamental right guaranteed by the XIV Amendment is that the owner shall not be deprived of the market value of his property under a rule of law which makes it impossible for him to obtain just compensation.' McCoy v. Union Elevated R. Co., supra, 247 U.S. 354 at page 365, 38 S. Ct. at page 507. And see Dohany v. Rogers, 1930, 281 U.S. 362, 369, 50 S. Ct. 299, 74 L. Ed. 904, 68 A.L.R. 434; Bragg v. Weaver, 1919, 251 U.S. 57, 59, 40 S. Ct. 62, 64 L. Ed. 135. Section 14 of the Act, Id. § 2391.14 appropriates funds for carrying out its provisions. As to reasonably prompt payment, see Joslin Mfg. Co. v. City of Providence, 1923, 262 U.S. 668, 677, 43 S. Ct. 684, 67 L. Ed. 1167.

 Confronted with the situation in Creasy v. Stevens, supra, Creasy v. Lawler, 1956, 8 Pa.Dist. & Co.R.2d 535 affirmed per curiam 389 Pa. 635, 133 A.2d 178, stated at 538-539, of 8 Pa.Dist. & Co.R.2d: 'All of plaintiffs' rights can be protected and secured in a proceeding before viewers, as is provided in § 8. * * * Here the legislature * * * provided a way in which every property owner may have it decided whether he is entitled to compensation and, if so, when, for what, and in what amounts * * *. Plaintiffs * * * have the right to proceed before viewers on the question of their right to damages. In the orderly course of the procedure provided by The Limited Access Highways Act, they will have a right of appeal to the common pleas court and a jury trial, and still later to have their rights adjudicated in the appellate courts. At all times their constitutional rights, whatever they may be, will be guarded and protected.'

 And see Martin v. Creasy, supra, 360 U.S. at page 223, 79 S. Ct. at page 1037, 'In the light of this pronouncement it is difficult to perceive the basis for the District Court's conclusion that the plaintiffs would be irreparably harmed unless the state officers were enjoined from proceeding under the statute.' And again at 224, of 360 U.S. at page 1037, of 79 S. Ct.: 'It must be assumed that the courts of Pennsylvania meant what they said * * *. Assuming * * * there was a basis to support intervention by a court of equity, the District Court, we think, should nevertheless have declined to adjudicate this controversy. The circumstances which should impel a federal court to abstain from blocking the exercise by state officials of their appropriate functions are present here in a marked degree.'

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