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SORGER v. PHILADELPHIA REDEVELOPMENT AUTH. OF PHIL

September 26, 1975

Joseph SORGER
v.
PHILADELPHIA REDEVELOPMENT AUTHORITY OF the CITY OF PHILADELPHIA and Franklin Town, Inc.



The opinion of the court was delivered by: BRODERICK

 BRODERICK, District Judge.

 Presently before the Court is the defendants' Motion to Dismiss or for Summary Judgment. Plaintiff filed the above captioned complaint *fn1" on August 2, 1975 and on the same date filed a Motion for Injunction. *fn2" On August 27, 1975, this Court ordered that pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure, the trial of the action on the merits would be advanced and consolidated with the hearing on the motion and scheduled the trial for September 8, 1975. On September 5, 1975, the defendants filed their Motion to Dismiss or for Summary Judgment. *fn3" At the hearing held on September 8, 1975, the Court heard argument from all counsel in connection with the defendants' motion and determined that it would rule on the motion before taking testimony. We now grant the defendants' Motion to Dismiss.

 The Redevelopment Authority of the City of Philadelphia (RDA) filed a Declaration of Taking on April 26, 1973 seeking the condemnation of 37 parcels aggregating approximately five acres of land located in what is known as the Franklin Town area of the City of Philadelphia. The plaintiff, Joseph Sorger, owned one of the parcels condemned in the state court proceeding. The plaintiff was one of 81 objectors who, on May 25, 1973, filed preliminary objections to the condemnation proceedings in the Court of Common Pleas of Philadelphia County. The preliminary objections contained 47 objections which challenged both the constitutionality and the propriety of the proposed condemnation. Among the grounds asserted in the preliminary objections were: (1) that the taking was not for a public purpose; *fn4" (2) that the bond furnished by Franklin Town Corporation did not comply with that required by the City's authorizing ordinance; *fn5" and (3) that the objectors were deprived generally of their federal rights. *fn6" Judge Takiff of the Common Pleas Court of Philadelphia County held an extensive hearing on the objector's preliminary objections and dismissed all the preliminary objections in an exhaustive 48 page opinion filed on July 24, 1974.

 On December 19, 1974, after Judge Takiff's opinion dismissing all preliminary objections, Judge Hirsh of the Court of Common Pleas issued a Writ of Possession for the plaintiff's property. This order was likewise appealed to the Commonwealth Court, before which the appeal was pending in connection with Judge Takiff's dismissal of the preliminary objections. On February 5, 1975, the Writ of Possession was withdrawn pursuant to a stipulation of the parties and RDA agreed not to again petition for a Writ of Possession until the Commonwealth Court had ruled on the dismissal by Judge Takiff of the preliminary objections. Following the opinion of the Commonwealth Court affirming Judge Takiff's dismissal, RDA renewed its request for possession of the plaintiff's property, and on July 23, 1975, Judge Hirsh of the Court of Common Pleas again granted the requested Writ of Possession conditioned upon the payment into court of the estimated just compensation of $53,500.00. The estimated compensation was paid into court on August 8, 1975. An appeal from Judge Hirsh's order is presently pending before the Commonwealth Court.

 Plaintiff in this action contends that his federal constitutional rights have been violated in that: (1) the condemnation was not made for a public purpose as required by the laws of Pennsylvania and the Constitution of the United States; *fn7" (2) the bond furnished by Franklin Town Corporation was not in compliance with the Ordinance of the City of Philadelphia, thereby depriving the plaintiff of equal protection of the laws; *fn8" (3) the Writ of Possession was issued by the court despite the fact that RDA and Franklin Town Corporation failed to provide for the relocation of the plaintiff, thereby depriving him of equal protection of the laws. *fn9" The plaintiff seeks an order from this Court which will set aside the condemnation proceedings, declare that the plaintiff is the owner of his property and enjoin the defendants from proceeding with condemnation and eviction procedures.

 Defendants contend that the principles of res judicata require dismissal of this action. *fn10" The rule of res judicata was stated by our Third Circuit in Anselmo v. Hardin, 253 F.2d 165, 168 (1958) as follows:

 
A final judgment by a court of competent jurisdiction is res judicata as to the parties not only as to all matters litigated and determined by such judgment but also as to all relevant issues which could have been presented, but were not.

 See also, Angel v. Bullington, 330 U.S. 183, 67 S. Ct. 657, 91 L. Ed. 832 (1947); Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S. Ct. 715, 92 L. Ed. 898 (1948); Donegal Steel Foundry Co. v. Accurate Products Co., 516 F.2d 583 (3d. Cir. 1975); Roy v. Jones, 484 F.2d 96 (3d Cir. 1973). A review of the record in the state court reveals that the plaintiff raised in the condemnation proceedings the issue as to whether the condemnation was for a public purpose as well as the issue concerning the legality of the bond. *fn11" Both of these issues were fully treated by Judge Takiff of the Court of Common Pleas in his opinion dismissing the preliminary objections, as well as by the Commonwealth Court in its opinion affirming said dismissal. The plaintiff than sought review by the Supreme Court of Pennsylvania, which refused to hear the case. The plaintiff still may petition for certiorari to the Supreme Court of the United States upon those issues. We find these two issues to be identical to two of the three issues raised by the plaintiff in the proceeding before this Court. Therefore, the principle of res judicata clearly precludes the relitigation of these two issues.

 The third issue raised by the plaintiff in the proceeding before this Court claims that RDA had a duty to provide for the relocation of the plaintiff. We find that this is a relevant issue which could have been presented and raised by the plaintiff in the state court litigation. Therefore, the principle of res judicata clearly precludes the relitigation of this issue.

 Other federal courts have reached similar conclusions in connection with condemnation proceedings which have been fully litigated in a state court. In Hilliard v. Commonwealth of Pennsylvania, 308 F. Supp. 756 (W.D.Pa. 1970), a case which had the same procedural history as the instant litigation, the United States District Court for the Western District of Pennsylvania held that the prior adjudication in the state eminent domain proceeding, which was affirmed on appeal by the Supreme Court of Pennsylvania, foreclosed the plaintiffs from relitigating in federal court the constitutional claims. Similarly, in another condemnation case in which the plaintiff sought to relitigate the state condemnation in the federal court, my learned colleague, Judge Troutman, said:

 
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. . . . The doctrine of res judicata is conclusive not only as to questions actually raised and considered, but to questions ...

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