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July 24, 1973

Joseph GIGLIOTTI et al., Plaintiffs,

Dumbauld, District Judge.

The opinion of the court was delivered by: DUMBAULD

Dumbauld, District Judge.

The complaint in the case at bar is brought under the familiar civil rights provisions of 28 U.S.C.A. § 1343(3) and 42 U.S.C.A. § 1983. *fn1" It alleges that defendant Redevelopment Authority deposited "less money for compensation for the property taken than its value as required by the 5th Amendment" and that said defendant also used the Pennsylvania Eminent Domain Code "for a purpose other than that for which it was intended and enacted into law, thereby depriving [plaintiffs] of just compensation as required by the 5th Amendment." Defendant sheriff is charged with appearing at plaintiffs' premises with arms and teargas canisters as well as a moving van and ambulance staffed with a physician; and with taking possession of the premises.

 The recitals of paragraphs 1-16 are then incorporated by reference into five counts. Count I complains that the daughter-plaintiff suffered "injuries to her person" causing hospitalization and lost wages. Count II makes the same claim on behalf of the wife-plaintiff. Count III makes a similar claim on behalf of husband-plaintiff, as well as a claim for money spent for relocation of the family and hospitalization of the wife and daughter, as well as a claim for loss of consortium. Count IV alleges deprivation of property "without just compensation." Count V alleges mental anguish.

 Defendants have filed motions to dismiss.

 The first ground asserted is that the action is barred by the statute of limitations. The eviction occurred on June 25, 1970, and the suit was filed on April 17, 1973. Inasmuch as the wording of Counts I, II, III and V follows the familiar pattern of a tort case for personal injury, indeed uses the express language "injuries to her person" ["his" in Count III, with other incidental claims of the customary sort], it is clear that these counts are barred by the two-year limitation provided for such torts by P.S. 34. *fn2" The pertinent Pennsylvania statute applies since the Civil Rights provisions do not provide their own statute of limitations. Conard v. Stitzel, 225 F. Supp. 244, 246 (E.D. Pa. 1963). *fn3"

 Next, the sheriff must be dismissed as a party since the record shows that he was merely acting pursuant to direction of the court in the execution of a writ. Lockhart v. Hoenstine, 411 F.2d 455, 460 (C.A. 3, 1969). This writ, doubtless the equivalent of the venerable habere facias possessionem, is specifically authorized in condemnation cases by the Eminent Domain Code. 26 P.S. § 1-407. *fn4" In the case at bar, the Court had expressly refused a stay of the writ.

 The fact that the sheriff's force were armed for all eventualities, and even provided medical facilities for emergencies, does not affect the legalities of the situation. This was merely prudent precaution. The newspapers are filled with stories of home owners who defend their "castle" *fn5" by rifle or shotgun, like the pioneer forefathers who won our Commonwealth from the Indians. And if the number of deputies was larger than actually necessary, this was the same wise generalship which led George Washington to assemble a mighty force in order to subdue the Whiskey Rebellion.

 We turn now to the meat of the case, which is a claim of deprivation of just compensation.

 It should first be noted that the Fifth Amendment (and hence the Civil Rights provision, 42 U.S.C. § 1983) does not fix any time limit for payment of "just compensation." We know that condemnation cases in this District have required considerable time. The Constitution likewise does not require any payment to be made in advance of the taking, though it is customary for the United States, or other condemnor, to make a payment into court of what it estimates it is certainly liable for.

 A mere difference of opinion between the condemnor and the land owner with respect to what the property is worth does not amount to a taking without due process or without just compensation.

 Even an inadequate award after judicial determination would not be a violation of constitutional rights. As Justice Holmes said in Chicago Life Ins. Co. v. Cherry, 244 U.S. 25, 30, 37 S. Ct. 492, 493, 61 L. Ed. 966 (1917): "Whenever a wrong judgment is entered against a defendant his property is taken when it should not have been, but whatever the ground may be, if the mistake is not so gross as to be impossible in a rational administration of justice, it is no more than the imperfection of man, not a denial of constitutional rights." The same revered judge said in McGovern v. New York, 229 U.S. 363, 370, 33 S. Ct. 876, 876, 57 L. Ed. 1228 (1913), that "not every judgment by which a man gets less than he ought, and in that sense is deprived of his property" constitutes deprivation of due process of law.

 So the failure to deposit in advance as much money as plaintiffs wanted for their property is not a violation of the Civil Rights provision. *fn6"

 The same is true of plaintiffs' other allegation, that the authority was condemning for an improper purpose. Plaintiffs waived this issue by failing to file preliminary objections as authorized by the Eminent Domain Code, 26 P.S. § 1-406. *fn7"

 Moreover, whatever a social philosopher may feel in the exercise of hindsight with regard to the hardship and folly manifested in certain "redevelopment" programs, there has never been a case where the legislative determination of what constitutes a proper public use has been judicially overruled. *fn8" Berman v. Parker, 348 U.S. 26, 34, 75 S. Ct. 98, 99 L. Ed. 27 (1954), is a striking case. So is Crawford v. Redevelopment Authority, 418 Pa. 549, 554-556, 211 A. 2d 866 (1965).

 Thus in the absence of any constitutional rights of which defendant Authority deprived plaintiffs, there is no cause of action stated under the Civil Rights provision, and the motion to dismiss must be granted. *fn9"

 The action against the individual board members of the Authority must also be dismissed because of the lack of any specific allegations of any actions by themselves other than collectively as the Authority's board.

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