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IRVING MILLER v. COMMONWEALTH PENNSYLVANIA (11/23/87)

decided: November 23, 1987.

IRVING MILLER, INDIVIDUALLY AND AS LIQUIDATING TRUSTEE OF MILLER'S INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, BOARD OF PROPERTY, RESPONDENT



Appeal from the Order of the Board of Property, Docket No. BP-86-02, dated July 23, 1986.

COUNSEL

Lewis Kates, Kates & Mazzocone, for petitioner.

William J. Cressler, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, Morey Myers, General Counsel, for appellee.

Judges Craig, Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. President Judge Crumlish did not participate in the decision in this case. Concurring Opinion by Senior Judge Kalish.

Author: Doyle

[ 111 Pa. Commw. Page 241]

Irving Miller (Petitioner) petitions for review of an order of the Board of Property (Board) granting a motion

[ 111 Pa. Commw. Page 242]

    by the Department of Transportation (DOT) to dismiss Petitioner's complaint.

This case is one of many stemming from the preparations, planning, delays, changes and actual construction of the Vine Street Expressway in Philadelphia. As we have already placed on record a complete exposition of the pertinent facts in this case in our prior decision in Miller v. Department of Transportation, 91 Pa. Commonwealth Ct. 622, 498 A.2d 1370 (1985) (Miller I), no lengthy recital is necessary here.

However, in his complaint, styled as an Action to Quiet Title, first filed in the Court of Common Pleas of Philadelphia County, Petitioner seeks a final decree declaring that he is the owner in fee simple of premises known as 1517-23 Spring Street, which premises were the subject of a Declaration of Taking filed by DOT on August 31, 1972. The basis of Petitioner's claim is his allegation that DOT abandoned the purpose for which it had condemned the premises, to wit, the construction of a highway. Petitioner's case was first transferred to this Court, and then by this Court to the Board of Property for resolution. Before the Board, DOT denied the alleged abandonment, asserting affirmatively that it has continued to use the premises as a staging area for construction of the Vine Street Expressway. DOT further asserted that it had acquired the fee title underlying the highway easement. See Miller I. Finally, DOT argued that this case was controlled by Miller I, with the parties, issues of fact, and issues of law in both instances being identical and, accordingly, filed a motion to dismiss. The Board concluded that Petitioner's action to quiet title was barred by res judicata and granted the motion to dismiss. Petition for review to this Court followed.

The salient issue in this case is whether, in light of our decision in Miller I, Petitioner's action to quiet title

[ 111 Pa. Commw. Page 243]

    is precluded by either the doctrine of res judicata or the correlative doctrine of collateral estoppel, also called "issue preclusion." This is the dispositive issue and, for the reasons set forth below, we find that the ...


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