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KADASH v. CITY OF WILLIAMSPORT

June 29, 1973

George KADASH and his wife Joan A. Kadash,
v.
The CITY OF WILLIAMSPORT and the Williamsport Redevelopment Authority, its agent


Nealon, District Judge.


The opinion of the court was delivered by: NEALON

Nealon, District Judge.

 Plaintiffs, *fn1" residents and landowners in a section of the City of Williamsport, Pennsylvania, known as the Foresman Plot, seek money damages and the issuance of a permanent injunction to restrain defendants, City of Williamsport and the Redevelopment Authority of the City of Williamsport, from taking any further steps to condemn their property. The case was originally assigned to Judge Muir of this court, who denied plaintiffs' motion for a temporary restraining order seeking to enjoin the City of Williamsport from holding a public hearing on July 27, 1972, relative to a Redevelopment Project calling for the condemnation of plaintiffs' land. The matter was then set down for trial and after taking three days of testimony, Judge Muir acceded to plaintiffs' request that he disqualify himself. *fn2" The case was then reassigned to this court and subsequently defendants moved to dismiss the complaint on the ground that the court lacked jurisdiction over the subject matter and for the further reason that the complaint failed to state a claim upon which relief could be granted. Argument was heard on March 16, 1973 and briefs, affidavits and other memoranda have been filed. The motion is now before the court for disposition. Inasmuch as affidavits and other materials submitted by the parties have been considered by the court in its decision, the motion to dismiss will be treated as a motion for summary judgment under Rule 56, Fed. R. Civ. P. For the reasons stated below, the court concludes that defendants' motion must be granted and the complaint dismissed.

 BACKGROUND

 The Foresman Plot is a semi-residential neighborhood of approximately 50 acres located in the extreme western section of the City of Williamsport. On September 12, 1966, as part of a comprehensive redevelopment plan for the City of Williamsport, the Williamsport Planning Commission certified the Foresman Plot as a blighted area in accordance with the Pennsylvania Urban Redevelopment Law, 35 Pa. Stat. Ann. § 1701 et seq. Thereafter, in the spring of 1970, the Planning Commission approved a redevelopment proposal for the area as prepared by the defendant Redevelopment Authority. After the required public hearings on the proposal were held, the Williamsport City Council rejected the initial proposal on June 2, 1970, pursuant to 35 Pa. Stat. Ann. § 1710(h). A slightly different proposal covering the same area was later submitted to the Planning Commission in January, 1972. This time the Planning Commission recommended rejection of the proposal; however, after the public hearings held in July of 1972, *fn3" the Williamsport City Council adopted a resolution on September 14, 1972 approving the proposal and agreeing to cooperate with the Authority in helping to carry it out. Subsequently, the Redevelopment Authority received a commitment for funding of the project from the Commonwealth of Pennsylvania through the Department of Community Affairs. To this date, however, the contract which would commit the funds has remained unexecuted and no monies have been received by the Authority to enable it to acquire the properties involved, nor as of this date has the Redevelopment Authority adopted a Resolution authorizing the condemnation of plaintiffs' property.

 DISCUSSION

 Being mindful that plaintiffs are not represented by counsel, the court has endeavored to liberally construe the pleadings filed by plaintiffs. In their complaint, plaintiffs broadly assert that defendants are harassing plaintiffs and depriving them of their constitutional rights by (1) continually pursuing an urban renewal project previously rejected in 1970 which would result in the condemnation of plaintiffs' property and (2) attempting to condemn plaintiffs' property and deed it to a private corporation for a non-public use. In response, defendants have moved to dismiss the complaint contending that the court lacks jurisdiction over the subject matter and, in any event, if the court does have jurisdiction, the court should decline to exercise it since plaintiffs' rights would be adequately protected by proceedings in the Pennsylvania state courts. Finally, defendants assert that it is premature for plaintiffs to assert the claims asserted here prior to the initiation of eminent domain proceedings.

 JURISDICTION

 Federal Question Statute

 Although directed to do so by the court in its order of February 23, 1973, plaintiffs have not set forth a jurisdictional base upon which their claim is grounded. Again allowing for the pro se nature of their pleadings, plaintiffs conceivably could be asserting jurisdiction under the Federal Question Statute, 28 U.S.C. § 1331 or the Civil Rights Act, 42 U.S.C. § 1983, 28 U.S.C. § 1343. Construing the complaint under the Federal Question Statute, plaintiffs have alleged the deprivation of a federally protected right and the amount in controversy would probably exceed $10,000. However, to the extent that plaintiffs seek to enjoin defendants from taking steps to condemn plaintiffs' land, the requested relief would be barred by the Federal Anti-Injunction Statute, 28 U.S.C. § 2283. That section provides as follows:

 
"A court of the United States may not grant an injunction to stay proceedings in a State Court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."

 While no state condemnation proceedings have yet been commenced and technically no injunction has been sought against a pending state proceeding, plaintiffs have requested that defendants be restrained from initiating future state condemnation procedures. It has long been held that "the prohibition of § 2283 cannot be evaded by addressing the order to the parties" rather than directly to the state court. Atlantic C.L.R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S. Ct. 1739, 26 L. Ed. 2d 234 (1970); Oklahoma Packing Co. v. Oklahoma Gas & Elec. Co., 309 U.S. 4, 60 S. Ct. 215, 84 L. Ed. 537 (1940). See also Hilliard v. Commonwealth of Pa., Pa. Game Commission, 438 F.2d 92 (3d Cir. 1971). Since the injunctive relief plaintiffs seek would fly in the face of § 2283's bar against interference with state judicial proceedings, I conclude jurisdiction cannot be asserted under the Federal Question Statute.

 Civil Rights Act

 Considering plaintiffs' complaint as one under the Civil Rights Act, it is now apparent that if plaintiffs' action can be brought within the provisions of the Civil Rights Act of 1871, 42 U.S.C. § 1983, the statutory bar of the Anti-Injunction Act would not apply. *fn4" Mitchum v. Foster, 407 U.S. 225, 92 S. Ct. 2151, 32 L. Ed. 2d 705 (1972); Cooper v. Hutchinson, 184 F.2d 119 (3d Cir. 1950). However, in order for a claim to be actionable under the Civil Rights Act, a plaintiff must show the denial of some right, privilege or immunity secured by the Constitution or laws of the United States by someone acting under color of state law. Unquestionably, defendants are acting under color of state law; however, the court has been unable to find any federally protected right that has been violated. The thrust of plaintiffs' complaint is that defendants are depriving plaintiffs of their constitutional rights by insisting on pursuing a previously rejected redevelopment plan which would involve the condemnation of plaintiffs' land and by attempting to condemn plaintiffs' property and deed it to a private corporation for a non-public use. Further, although not included in their complaint, but made a part of their trial brief, plaintiffs maintain that the certification of the Foresman Plot as blighted within the meaning of the Pennsylvania Urban Redevelopment Act was clearly ...


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