Sworob v. Harris

• Citation: 451 F. Supp. 96
• Decision Date: 06 April 1978
• Docket Number: Civ. A. No. 78-752.
• Parties: Bonnie Jayne SWOROB, Dorothy Hall, Fred Druding, Connie McHugh, and the Whitman Council, Inc., Plaintiffs, v. Patricia HARRIS, Individually and as Secretary of the Department of Housing and Urban Development, 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.
• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)

451 F. Supp. 96

Bonnie Jayne SWOROB, Dorothy Hall, Fred Druding, Connie McHugh, and the Whitman Council, Inc., Plaintiffs, v. Patricia HARRIS, Individually and as Secretary of the Department of Housing and Urban Development, 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.

Civ. A. No. 78-752.

United States District Court, E. D. Pennsylvania.

April 6, 1978.

COPYRIGHT MATERIAL OMITTED

Joseph M. Gindhart, Philadelphia, Pa., for plaintiffs.

Robert N. DeLuca, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Wm. F. Hall, Jr., Dept. of HUD, Philadelphia, Pa., for defendants.

Jonathan M. Stein, Harold R. Berk Community Legal Service, Philadelphia, Pa., for defendant-intervenor.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

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.

At a conference held in chambers on March 7, 1978, the parties agreed that the trial of the action on the merits would be advanced and consolidated with the hearing on plaintiffs' motion for a preliminary injunction. The consolidated trial, before the Court without a jury, commenced on March 13, 1978. The Court was immediately presented with two motions: (1) defendants' motion to dismiss, and (2) the Resident Advisory Board's motion to intervene as a party-defendant. The Court granted the Resident Advisory Board ("RAB") leave to intervene and took the other motion, which had been joined in by RAB, under advisement and proceeded to receive testimony in connection with the merits of plaintiffs' case. At the conclusion of plaintiffs' evidence, the defendants moved, pursuant to Fed.R.Civ.P. 41(b), for an involuntary dismissal. For the reasons hereinafter set forth, the Court has decided to grant defendants' motion, and render judgment against the plaintiffs.

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 ¶ 41.134 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."¹

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 first requirement for res judicata is that the same parties or parties in privity with them were present in the prior litigation. The plaintiffs in this case were parties in RAB v. Rizzo. In RAB v. Rizzo, the Whitman Area Improvement Council ("WAIC") intervened as a defendant on behalf of all residents of the Whitman Urban Renewal Area and "All Other Persons Acting in concert with them or otherwise participating in their aid". See WAIC's motion to intervene, filed June 30, 1971; RAB v. Rizzo, 425 F.Supp. at 1024, n. 61. It was testified at this trial that the Whitman Council, Inc. was WAIC, having been incorporated in 1977 (Druding, N.T. 2-165). Although Connie McHugh is not a resident of the Whitman Urban Renewal Area, she testified that she lives in the adjoining community and that she has participated as an active supporter of WAIC in their efforts to stop the construction of these townhouses (McHugh, N.T. 2-128, 2-129, 2-136). Therefore the first requirement as to res judicata has been satisfied.

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 home-ownership in the area. (N.T. 55-101, 55-102).²

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 occasioned by the townhouse project. Id. at 1025.

WAIC did not mention its NEPA claims in its proposed findings of fact and conclusions of law submitted to this Court in RAB v. Rizzo, nor did it...