The Civil Rights claims of plaintiffs will therefore be dismissed.
IV. PENDENT JURISDICTION
Plaintiffs allege that Secretary Kassab violated the provisions of Section 512 of the Penn DOT Act by failing to perform certain duties thereunder
and that this Court has the power to decide the foregoing State claim under the doctrine of pendent jurisdiction.
Application of the pendent jurisdiction doctrine is discretionary and depends upon considerations of judicial economy, convenience and fairness to litigants. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). In this case, the similarity between the pertinent provisions of the Penn DOT Act and Section 4(f) of the Department of Transportation Act, and the obvious identity in policies behind both Acts and NEPA, militate in favor of retaining jurisdiction over plaintiffs' State claim against Secretary Kassab. On the other hand, the Penn DOT Act is significant State legislation, not as yet interpreted by the Pennsylvania State Courts. Cf. Jacobson v. Atlantic City Hospital, 392 F.2d 149, 155 n. 6 (3d Cir. 1968). The determinative factor in this case, however, is that the doctrine of sovereign immunity would preclude actual disposition of this non-constitutional State claim on its merits if pendent jurisdiction were invoked. Pennsylvania Environmental Council, Inc. v. Bartlett, supra. Futile acts are not engaged in by the Courts and, thus, I decline to hold that this Court has pendent jurisdiction over the alleged Penn DOT Act violations of Secretary Kassab.
V. SECTION 4(f) OF THE DEPARTMENT OF TRANSPORTATION ACT OF 1966
After careful and considerable examination of the Administrative Record in this case, I remain unconvinced that the Record is in such a state of clarity to make a competent judicial review of Secretary Volpe's 4(f)
determination of May 18, 1970, under the law as it presently exists. Remand is therefore necessary and proper. The principal reason for this is the intervening Supreme Court decision in Citizens to Preserve Overton Park, Inc. v. Volpe, supra, which set forth the proper tests for judicial review of the Secretary's 4(f) determination,
provided clear definitions of feasible and prudent alternatives, and which required remand to the District Court for plenary review of the Secretary's decision, not precluding thereby possible remand to the Secretary for compliance with the intervening DOT Order 5610.1. Where there are such intervening changes in the law after an administrative decision has been made but before final decision by the District Court, the matter may be remanded by the Court in its sound discretion to the administrative agency for consideration in light of the changed conditions. Citizens to Preserve Overton Park, Inc., supra ; Thorpe v. Housing Authority, etc., 393 U.S. 268, 89 S. Ct. 518, 21 L. Ed. 2d 474 (1969); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 83 S. Ct. 239, 9 L. Ed. 2d 207 (1962). Such a remand is appropriate in this case under Overton Park for several reasons: (1) the intervening changes in the law are particularly significant, and (2) it would be a most troublesome task for this Court to apply these changes to the Administrative Record as it presently exists. First of all, in Overton Park, Mr. Justice Marshall, speaking for the Court, acknowledged at the very outset the "growing public concern about the quality of our natural environment" as prompting Congress
to adopt Section 4(f), Section 138 and NEPA, and further "that protection of parkland was to be given paramount importance" and that
"(the) few green havens that are public parks were not to be lost unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes." 401 U.S. at 413, 91 S. Ct. at 822.