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IN RE FOX

February 9, 1960

In re Appointment of Viewers to Assess Damages on Account of the APPROPRIATION BY THE CITY OF BETHLEHEM OF PROPERTY OF Irving FOX, Trustee, Situated in the TOWNSHIP OF HANOVER, COUNTY OF NORTHAMPTON, Commonwealth of PENNSYLVANIA


The opinion of the court was delivered by: GRIM

On November 25, 1958, the City of Bethlehem, Pennsylvania ('City') completed the passage of an ordinance appropriating by eminent domain a tract of 62 1/2 acres of nearby land for park purposes. On December 5, 1958, *fn1" the record owner of the land, Irving Fox, trustee. a citizen of New York, instituted the present action asking this court to appoint a board of viewers to determine the amount of his damage and award him that amount against the City. Jurisdiction of this court was and is predicated upon diversity of citizenship. The action was filed under Rule 71A of the Federal Rules of Civil Procedure, 28 U.S.C., but the petition for the appointment of viewers followed the procedure established by the applicable Pennsylvania statute. *fn2" In response to the petition this court appointed a board of three viewers to assess the damage.

 There is thus presented the odd situation in which the party against whom an action has been brought has sought to stop the action against it by taking steps to dismiss the action ex parte.

 The City was of the opinion that it had a right to take a voluntary dismissal of the action by virtue of Federal Rule 71A(i)(1):

 '(i) Dismissal of Action.

 '(1) As of Right. If no hearing has begun to determine the compensation to be paid for a piece of property and the plaintiff has not acquired the title or a lesser interest in or taken possession, the plaintiff may dismiss the action as to that property, without an order of the court, by filing a notice of dismissal setting forth a brief description of the property as to which the action is dismissed.'

 In its opinion that it had a right to take a voluntary dismissal the City was obviously mistaken. Although the City passed the ordinance condemning and appropriating the land, the City was not the party which brought the court action. The action was brought by Fox, the property owner. For the purposes of Rule 71A(i) the plaintiff is Fox and the defendant is the City. *fn3" Rule 71A(i) gives only the plaintiff the right to take a voluntary dismissal.

 Even if it be assumed for the sake of argument that the City is the plaintiff, Rule 71A(i)(1) would not apply, because a voluntary dismissal may be taken only when '* * * the plaintiff has not acquired the title or a lesser interest in or taken possession * * *.' of the property. The City by passage of the condemnation ordinance acquired the right to immediate possession of the property. *fn4" While the right to immediate possession does not amount to title, it certainly constitutes a 'lesser interest' within the meaning of the Rule, sufficient to prevent the City's taking a voluntary dismissal of the action, even if it were labeled 'plaintiff.'

 Fox' motion to set aside the City's 'Notice of Dismissal' will be granted and the action will be reinstated.

 Motion to Dismiss.

 Fox' petition asking for the appointment of viewers by this court was filed December 5, 1958. On December 9, 1958, the City filed a written motion to dismiss which this court denied without opinion the same day. The opinion will now be filed with the opinion granting the motion to set aside the City's 'Notice of Dismissal.'

 In Allegheny County v. Frank Mashuda Co., 1959, 360 U.S. 185, 79 S. Ct. 1060, 3 L. Ed. 2d 1163, the Supreme Court considered the right of a property owner to have his case tried in a federal court when his land is taken by a state or a political subdivision thereof in exercise of a state right of eminent domain. While the problem in the Mashuda case is different from the problem in the present case, the opinion of the Supreme Court is so encompassing that a quotation from it serves to illuminate the problem and dispose of the City's contention that an action such as this cannot be brought in a federal court, upon which the City's motion to dismiss the present action was largely bottomed. The Supreme Court said, 360 U.S. 185, at pages 194, 195, 79 S. Ct. 1060, at page 1066:

 'Trial of state eminent domain cases has become a common practice in the federal courts. Indeed, Rule 71A of the Federal Rules of Civil Procedure, 28 U.S.C.A., adopted by the Court in 1951, provides a detailed procedure for use in eminent domain cases in the Federal District Courts and specifically provides, in subsection (k), 'The practice as herein prescribed governs in actions involving the exercise of the power of eminent domain under the law of a state, provided that if the state law makes provision for trial of any issue by jury * * * or commission or both, that provision shall be followed.' This Rule makes perfectly clear, as do the Notes of the Advisory Committee on Rules pertaining to it, that this Court, when it adopted the Rule, intended that state eminent domain cases, including those which raised questions of authority to take land, would be tried in the Federal District Courts if (diversity) jurisdiction was properly invoked. This was confirmed by this Court's opinion in Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. 574, 74 S. Ct. 290, 98 L. Ed. 317.'

 It is clear from this quotation that Fox had a right to have the issue of compensation tried in this court, first by viewers (a commission) and later by a jury, if desired, conformably to Pennsylvania ...


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