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February 18, 1971


Troutman, District Judge.

The opinion of the court was delivered by: TROUTMAN

TROUTMAN, District Judge.

 On October 26, 1970, the plaintiff filed in this Court a complaint alleging that on November 10, 1967, the defendant filed a declaration of taking under and pursuant to the provisions of the Pennsylvania Eminent Domain Code, condemning premises or property owned by the plaintiff in Haverford Township, Delaware County, Pennsylvania. The plaintiff seeks (1) a permanent injunction enjoining defendant from taking the property in question, (2) a mandatory injunction requiring the defendant to remove the cloud upon plaintiff's property created by or resulting from the filing of the declaration of taking, (3) a declaration that the failure of the defendant to post bond or give other adequate security is violative of the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States, (4) a declaration that plaintiff's property is exempt from condemnation, (5) such other relief as the Court may deem appropriate.

 On January 11, 1971, the defendant filed a motion to dismiss and for summary judgment contending that the issues here involved have been previously adjudicated.

 From the motion duly verified and the exhibits attached, it is evident that the issues here involved have, since the filing of the declaration of taking on or about November 10, 1967, been the subject of extended litigation. In accordance with the procedures prescribed by the Pennsylvania Eminent Domain Code, the plaintiff filed preliminary objections to the declaration of taking. Among others, the plaintiff contended that the property was exempt from condemnation, that the security was insufficient, that the taking was unconstitutional, and, as here, sought a decree that the taking was invalid, illegal, unconstitutional and praying that it be stricken and removed as a cloud upon condemnee's title. It thus becomes apparent that the issues here involved were properly raised in the prior proceeding. Those issues were resolved by the Court of Common Pleas of Delaware County on January 23, 1969, when extended findings of fact and conclusions of law were filed and, after discussion, a decree was entered dismissing the preliminary objections in question. (See copy of the Court's findings, conclusions, discussion and decree attached to defendant's motion.)

 An appeal was thereafter taken to the Supreme Court of Pennsylvania. In an opinion filed on April 22, 1970, In re School District of Haverford Township, 437 Pa. 536, 264 A. 2d 679, the order entered by the Delaware County Court was affirmed. (See copy of Supreme Court's opinion attached to defendant's motion.) Thereafter, the plaintiff filed an appeal with the Supreme Court of the United States and on or about October 12, 1970, 400 U.S. 807, 91 S. Ct. 59, 27 L. Ed. 2d 37, said appeal was dismissed for want of jurisdiction and treating same as a petition for a writ of certiorari, said writ was denied. (See paragraph 5 of plaintiff's duly verified motion.)

 In like manner, the plaintiff's contention that its property is being taken or condemned in violation of the Fourteenth Amendment was likewise litigated. The question was squarely put to both the Delaware County Court and the Supreme Court of Pennsylvania. Plaintiff's contention, in this regard, that the pledge of the condemnor's taxing power is constitutionally insufficient and inadequate, was squarely rejected by the Supreme Court. Thus, plaintiff's contention that the condemnation proceedings in question "do not afford plaintiff a reasonable certainty of payment of just compensation", (see paragraph 3 of plaintiff's complaint) has been adjudicated. The Supreme Court, discussing this question, said as follows at page 682 of its opinion: "We agree with the court below. The pledge of the school district's taxing power is sufficient security to pay appellant just compensation and to fulfill the requirements of due process". In like manner, other contentions advanced by plaintiff were considered and adjudicated. *fn1"

 Plaintiff's answer to defendant's "motion to dismiss and for summary judgment" (Document No. 5) is brief and in its entirety reads as follows:

"The issues presented in this action never have been heard upon their merits and finally decided upon by any Federal Court. Accordingly, plaintiff has the right to have a hearing and determination by this Court on the issues presented.
"WHEREFORE, the plaintiff, The Connelly Foundation, respectfully moves this Honorable Court to dismiss Defendant's Motion to Dismiss and For Summary Judgment and allow the matter to proceed for full hearing on the merits."

 The plaintiff thus suggests that it is entitled to a decision "on the merits" by a "Federal Court" and that it accordingly has the right to have a determination made by "this Court" and, therefore, requests that defendant's motion to dismiss be denied. Memorandum submitted by the plaintiff in opposition to the defendant's motion adds only the allegation that the "present record is insufficient to support the grant of a motion". It is self-evident that the present record is insufficient upon which to base a decision upon the merits. The merits, however, are not before us. Properly before us is defendant's motion to dismiss which is the proper procedure by which to raise the defense of res judicata. Williams v. Murdoch, 330 F.2d 745 (3rd Cir. 1964.) The plaintiff argues (see page 2 of plaintiff's brief):

"* * * Plaintiff will contend in these proceedings that it is entitled to have a Federal Court fully hear and pass upon the constitutional issues raised herein. Plaintiff realizes that existing case law may militate against this position, however, it is plaintiff's contention that any such existing case law is erroneous and should therefore either be overruled or held to be inapplicable to the situation here presented."

 In like situations, the Federal courts have repeatedly held that the condemnee does not have the right to re-litigate the matter in the Federal courts. In the case of Patterson v. City of Newport News, Virginia, 364 F.2d ...

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