Appeals from the Decree of the Court of Common Pleas of Butler County, in the cases of Commonwealth of Pennsylvania, Pennsylvania Game Commission v. Carl Hilliard, A.D. No. 232, Sept. Term, 1967, Commonwealth of Pennsylvania, Pennsylvania Game Commission v. Pressley L. Hilliard, A.D. 233, Sept. Term, 1967 and Commonwealth of Pennsylvania, Pennsylvania Game Commission v. Edward F. Bookser and Ruth R. Bookser, his wife, A.D. 234, Sept. Term, 1967.
Lee C. McCandless, with him Frank P. Krizner and McCandless, Chew & Krizner, for appellants.
Robert J. Stock, Special Counsel, with him Raymond C. Miller, Deputy Attorney General, Benjamin B. Solomon, Assistant Attorney General, and J. Shane Creamer, Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Mencer. Judge Crumlish joins in this dissent.
The history of the litigation of these companion cases began on September 5, 1967, with the filing of a Declaration of Taking in the Court of Common Pleas. This was followed promptly by the filing of Preliminary Objections raising several points. An Answer was filed to the Preliminary Objections, argument had, and the court filed an Opinion and Order on February 14, 1968. The court discussed several of the points raised in the Preliminary Objections, indicating they were without merit, and entered an Order dismissing several, sustaining one, but notably failing to discuss or expressly rule upon the objection that stated: "The Declaration fails to show the standards for acquisition under Project 70 Land Acquisition and Borrowing Act have been complied with (72 P.S. 3946.18)". Record at 26a. The answer to this Preliminary Objection was in the alternative, denying that it was necessary to allege compliance and stating that compliance had been alleged.
An Amended Complaint was filed to comply with the court's Order allowing the Amended Complaint to correct the one Preliminary Objection which it had sustained, i.e., requiring the declaration of taking to be changed to a taking in fee rather than merely taking the surface. Appellants filed Preliminary Objections to the Amended Complaint. These Preliminary Objections raised the question of the propriety of the taking as not being within the spirit, intent or purpose of Project 70, was arbitrary and unreasonable, not in the public interest, and violative of appellants' constitutional rights. The Commonwealth filed Preliminary Objections to the Preliminary Objections on the grounds
that Preliminary Objections to the Amended Complaint must be limited to those new matters introduced into the case by the amendment. Argument was had with appellants pressing their rights to file the Preliminary Objections because the Amended Complaint was in fact a new complaint and because these Preliminary Objections had been filed to the original complaint and were undisposed of by the court's Opinion or Order. The court ruled that the Amended Complaint was just that and not a new complaint and that Section 406(c) of the Eminent Domain Code, Act of June 22, 1964, P.L. 84, Special Session, as amended, 26 P.S. § 1-406, precluded raising Preliminary Objections that could have or had been raised to the original complaint. This decision was confirmed by the Supreme Court of Pennsylvania with a Per Curiam Opinion merely stating, "Order affirmed". See Commonwealth v. Hilliard et al., 433 Pa. 599, 249 A.2d 536 (1969).*fn1 Therefore, while neither appellants nor this Court can know the reasoning on which the Supreme Court sustained the lower court's ruling that it was too late to raise the issue of the propriety of the taking, at least it is quite clear that that was its decision and, therefore, it is res judicata between the parties in this case.
Following the Supreme Court's decision, viewers were appointed, made an award, and appellant appealed
to the Court of Common Pleas. During the time the matter was before the Board of View, apparently recognizing the finality of the Pennsylvania Supreme Court's ruling, absent an allowance of an appeal to the Supreme Court of the United States, appellant instituted an action in the U.S. District Court for the Western District of Pennsylvania to enjoin the appellee from proceeding until the propriety of the taking had been determined. After an exhaustive discussion of the facts, the District Court concluded that the decision of the Supreme Court of Pennsylvania was res judicata. Hilliard v. Commonwealth of Pennsylvania, 308 F. Supp. 756 (D.C.W.D. Pa. 1970). Having been denied relief by the Federal Courts, appellant pursued the appeal from the Board of View, petitioning the Court of Common Pleas to have a jury determine not only the propriety of the amount of the award, but also for the jury to determine, preliminarily, the propriety of the taking. Appellee sought a Rule To Show Cause why a Writ of Possession should not issue. The court considered these two matters together, granted the Writ of Possession, and dismissed the petition of appellant to present testimony on the propriety of the taking. From this Order, the present appeal was taken.
We believe it would be accurate to say that in every case in which res judicata is a bar, one litigant is asserting that the issue he raises either was not decided or was not decided properly in prior litigation between the contesting parties. Appellant can, and does, argue that his original Preliminary Objection as to propriety was not decided by the lower court in its first decision and was improperly decided as being too late by the lower court in its second opinion. He cannot successfully argue that it was not ...