The State Court action originated on September 16, 1969, (more than thirty days prior to the filing of a petition for removal on November 26, 1969) when the plaintiff filed a Declaration of Taking in the Court of Common Pleas of Lancaster County whereby the defendant's property was condemned for the purpose of constructing a student center at Millersville State College.
Both parties concede that the action should be remanded, but for different reasons and with wholly different effects. Plaintiff contends that the Removal Petition was not filed within thirty days as required by 28 U.S.C. § 1446(b) and, therefore, the action should be finally remanded to the State Court. Defendant, on the contrary, contends that the Removal Petition was prematurely filed, that the Court should so find and that, upon remand on that basis, the defendant will accordingly have the opportunity to again file an appropriate petition to remove the action to this Court when the proceedings are ripe for the filing of such petition. The defendant contends that the proceeding has not yet ripened into a "civil action" in the State Courts and that the thirty (30) day period prescribed by 28 U.S.C. § 1446(b) has not yet commenced to run.
He contends that the filing of a Declaration of Taking does not constitute a "civil action" within the meaning of the Removal Statute. He contends that the Declaration merely institutes an In Rem proceeding which ripens into a "civil action", within the meaning of the statute, only if and when a controversy exists as to the "amount of damages" as to which the Pennsylvania Statute prescribes a procedure. Thus, if the parties subsequently agree on "damages" he contends that no "civil action" ever existed which could have been the subject of removal to the Federal Courts. In so contending he seems to overlook the fact that "the only purpose of litigation arising out of the condemnation is to determine the amount of damages" to which the property owner is entitled. In Re Monocacy Park, City of Bethlehem, 181 F. Supp. 880 (E.D. Pa. 1960). Moreover, the fixing of damages is initiated by the subsequent, and sometimes delayed, filing of a petition for the appointment of a Board of View. To thus delay possible removal to the Federal Courts may well be contrary to the congressional policy behind 28 U.S.C. § 1446 which is intended to effect removals "as early as possible". Emporium Trust Co. v. Dolaway, D.C., 205 F. Supp. 280, 284 (1961).
Additionally, the Pennsylvania statute [26 P.S. § 1-402(a)] provides that "condemnation * * * shall be effected only by the filing in court of a Declaration of Taking * * *". That the matter is thus pending "in court" substantially detracts from defendant's contention that no "civil action" is pending. That an "action" is pending is further evident from the fact that the condemnee is required to file preliminary objections within thirty (30) days from the notice of taking if he desires to challenge the right to condemn, the sufficiency of the security, the procedures followed or the Declaration of Taking. 26 P.S. § 1-406. Of even greater significance is the fact that the Declaration of Taking passes title to the condemnor and it is unrealistic to suggest that a proceeding by which the State seizes the ownership and title to private property relegating the private owner to damages, is something less than a "civil action" within the meaning of 28 U.S.C. § 1446.
The plaintiff relies heavily upon the case of Chicago, Rock Island and Pacific Railroad Co. v. Stude, 8 Cir., 204 F.2d 116 (1953). But the real issue there was whether the railroad company, which had initiated eminent domain proceedings, was a "defendant" within the meaning of the statute.
The railroad was, of course, not a "defendant" and the Court so held. Additionally, the Iowa procedure there involved was not initially an "in court" proceeding as is expressly provided by the Pennsylvania statute. It was a proceeding initiated with the County Sheriff who appointed a commission to assess damages and it was from the commission's award that an appeal placed the matter "in court" and at which point the proceeding became a "suit" as stated by the Stude court.
But there is little or no similarity between the Iowa procedures and the procedures with which we are here concerned. In any event, the plaintiff's interpretation of the Stude decision has been squarely rejected by this Court in the case of In Re Monocacy, City of Bethlehem, 181 F. Supp. 880, where at page 882 the Court stated:
"* * * The Stude case does not decide * * * that a defendant in a state court proceeding cannot remove an eminent domain case to a federal court until the case has arrived at the jury stage in the state court * * *".
Moreover, the Stude court relied upon Boom Company v. Patterson, 98 U.S. 403, 25 L. Ed. 206 (1878)
and Pacific Railroad Removal Cases, 115 U.S. 1, 5 S. Ct. 1113, 29 L. Ed. 319 (1885)
which involved ex parte proceedings antecedent to the actual commencement of the adversary proceedings between the parties. The Supreme Court so stated in the subsequent case of Searl v. School District No. 2, 124 U.S. 197, 8 S. Ct. 460, 31 L. Ed. 415 (1885). The Colorado statute there involved provided for the appointment of a commission of three to assess damages unless a jury trial was demanded. The Court held (p. 199, 8 S. Ct. p. 461, 31 L. Ed. 415) that this did not
"* * * make the proceeding from its commencement any the less a suit at law, within the meaning of the constitution and acts of congress and the previous decisions of this court. The appointment of the commissioners is not, as in the case of [Mississippi & R.R.] Boom Co. v. Patterson (supra) and [Pacific Railroad] the Removal Cases, (supra) a step taken by the party seeking to make the appropriation ex parte, and antecedent to the actual commencement of the adversary proceeding inter partes, which constitutes a suit in which the controversy takes on the form of a judicial proceeding. Because, under the Colorado law, the appointment of the commissioners is a step in the suit, after the filing of the Petition and the service of the summons upon the defendant. It is an adversary judicial proceeding from the beginning * * *".