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SWOROB v. HARRIS

April 6, 1978

BONNIE JAYNE SWOROB, 365 Daly Street Philadelphia, Pa. 19148 and DOROTHY HALL, 365 Daly Street Philadelphia, Pa' 19148 and FRED DRUDING, 110 Tree Street, Philadelphia, Pa. 19148 and CONNIE McHUGH, 145 Hoffman Street, Philadelphia, Pa. 19148, and THE WHITMAN COUNCIL, INC., 341 Ritner Street Philadelphia, Pa. 19148, Plaintiffs
v.
PATRICIA HARRIS, Individually and as Secretary of the Department of Housing and Urban Development and THOMAS MALONEY, Individually and as the Regional Director of the Department of Housing and Urban Development and DON MORROW, Individually and as Area Director of the Department of Housing and Urban Development Defendants RESIDENT ADVISORY BOARD Defendant-Intervenor



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 This action was filed on March 7, 1978 seeking to enjoin any further action in connection with the construction of 120 townhouses at Whitman Park in Philadelphia, Pennsylvania until the Department of Housing and Urban Development ("HUD") performs an assessment of the environmental impact these townhouses will have on the area. This Court previously ordered that HUD, the Redevelopment Authority of the City of Philadelphia ("RDA"), Philadelphia Housing Authority ("PHA") and the City of Philadelphia ("City") "shall immediately take all necessary steps for the construction of the Whitman Park Townhouse Project as planned." Resident Advisory Board v. Rizzo, 425 F. Supp. 987, 1029 (E.D. Pa. 1976), aff'd in part, rev'd in part on other grounds, 564 F.2d 126 (3d Cir. 1977), cert. denied, 435 U.S. 908, 98 S. Ct. 1458, 55 L. Ed. 2d 499 (1978) [hereinafter cited as RAB v. Rizzo ].

 Fed.R.Civ.P. 41(b) provides in pertinent part:

 
After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.

 The granting of the defendants' motion at this stage is a decision on the merits in favor of the defendants; in rendering the judgment, the Court is not as limited in its evaluation of the plaintiffs' case as it would be on a motion for directed verdict. In ruling on a Rule 41(b) motion

 
the court is not to make any special inferences in the plaintiff's favor nor concern itself with whether plaintiff has made out a prima facie case. Instead it is to weigh the evidence, resolve any conflicts in it, and decide for itself where the preponderance lies.

 9 Wright & Miller, Federal Practice and Procedure : Civil § 2371 at 224-25 (1971) (footnotes omitted); 5 Moore's Federal Practice P. 41.13[4] at 41-193 to 194.

 The presentation of plaintiffs' evidence having been concluded, it became apparent to the Court that judgment should be entered in defendants' favor. The legal grounds upon which the Court relies in making its determination to render judgment against the plaintiffs are: (1) res judicata; (2) laches; and (3) failure to state a claim on the merits, pursuant to a Fed.R.Civ.P. 41(b) motion.

 I. Res Judicata

 The doctrine of res judicata is intended as a bar to repetitious litigation. Cramer v. General Telephone & Electronics, 443 F. Supp. 516, 520 (E.D. Pa. 1977). Res judicata is based on the proposition that a party who has had one fair and full opportunity to prove a claim and has failed in that effort, should not be permitted to go to trial on the merits of that claim a second time. Bruszewski v. United States, 181 F.2d 419, 421 (3d Cir. 1950). As the Third Circuit stated in Hubicki v. ACF Industries, Inc., 484 F.2d 519, 524 (3d Cir. 1973):

 
The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound "not only as to every matter which was offered and received to sustain or defeat the claim on demand, but as to any other admissible matter which might have been offered for that purpose." *fn1"

 See also, Gulf Oil Corp. v. Federal Power Commission, 563 F.2d 588, 602 (3d Cir. 1977); Donegal Steel Foundry Co. v. Accurate Products Co., 516 F.2d 583, 587 (3d Cir. 1977).

 The second requirement for res judicata is that a court of competent jurisdiction entered a final judgment on the merits. There can be no doubt that this requirement has been satisfied. RAB v. Rizzo.

 The final requirement is that this action concerns the same subject matter as the prior suit. In RAB v. Rizzo, the defendants came forward with a variety of reasons in their attempt to justify their termination of construction of the Whitman townhouses. One issue which WAIC raised was the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., which is the sole ground upon which they now seek to enjoin construction. One need only look at WAIC's answer to plaintiffs' corrected second amended supplemental complaint, which was filed on March 20, 1974, to discover that WAIC asserted as a defense that "no environmental impact statement has been filed with regard to the project herein involved by RDA, PHA and/or HUD in violation of applicable HUD regulations hereto." (Paragraph 68). In addition, a cursory review of the notes of testimony in RAB v. Rizzo reveals many instances of testimony concerning NEPA, for instance:

 1. Testimony of the former Whitman Urban Renewal Area project administrator concerning the filing of an environmental impact assessment or statement. (N.T. 57-111, 57-112);

 2. Testimony of former WAIC president Morris Jacobs as to environmental reasons given by a former WAIC president in 1965 objecting to public housing on the site including overcrowding, lack of recreational facilities, lack of police protection to deter crime, impact on schools, increase of social problems, increased demand for parking facilities, increase in vehicle traffic, close proximity to "potentially dangerous Liquid Carbonics plant", and destruction of concept of private homes and private homeownership in the area. (N.T. 55-101, 55-102). *fn2"

 3. Morris Jacobs' testimony that there was no longer a problem from the Liquid Carbonics plant since the concern ceased its manufacturing operation for a plumbing supplies warehouse. (N.T. 55-105).

 4. The following environmental concerns in connection with public housing:

 
(a) Filth and dirt in and around public housing (N.T. 54-21, 54-91, 54-103, 55-69);
 
(b) Violence and crime associated with public housing (N.T. 54-21, 54-91);
 
(c) Deterioration of the environment and the way of life in the Whitman Area if public housing is constructed (N.T. 54-109); and
 
(d) Deplorable conditions generally associated with public housing (N.T. 55-188).

 5. Statement made in 1970 by Alice Moore, a former WAIC president, that, in effect, there were no environmental problems with the construction of the townhouses. She stated that the plans for the townhouses "look excellent", and that WAIC was "very impressed with the plans" which WAIC believed would make the houses "an asset to our community". RAB v. Rizzo, 425 F. Supp. at 997-98.

 6. Multicon's plans for construction were chosen, in part, because they would not disrupt the traffic flow in the area. (N.T. 5-27).

 7. The Court in making its findings in RAB v. Rizzo, found that WAIC had not proved its allegations concerning the unsafe and unsanitary conditions which would be ...


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