Opinion
No. 71-1377.
Submitted April 4, 1972.
Decided June 2, 1972.
Robert James Jackson, Kassab, Cherry, Curran Archbold, Chester, Pa., and Thomas Twardowski, Paoli, Pa., for appellant.
George S. Saulnier, Class, Saulnier, Dunn Abel, Media, Pa., for appellee.
Appeal from the United States District Court for the Eastern District of Pennsylvania.
Before SEITZ, Chief Judge and HUNTER, Circuit Judge and McCUNE, District Judge.
OPINION OF THE COURT
Appellant, The Connelly Foundation (Connelly) initiated suit in the United States District Court for the Eastern District of Pennsylvania to enjoin the condemnation of its land for school purposes by the school district of Haverford Township. The school district responded by filing a "Motion to Dismiss and For Summary Judgment" which raised the defense of res judicata. The school district attached to its motion the Preliminary Objection of Connelly to the original Declaration of Taking and the Opinion of the Court of Common Pleas of Delaware County, Pennsylvania, and the Opinion of the Supreme Court of Pennsylvania affirming the findings of the Common Pleas Court. (Connelly had sought certiorari in the Supreme Court of the United States and had failed.)
The district court, 326 F. Supp. 241, concluded that the allegations contained in Connelly's complaint had been completely and finally litigated in the Pennsylvania State courts and that the issues were res judicata and accordingly dismissed the complaint.
A review of the record shows beyond doubt that the conclusion of the District Court was correct.
The appellant contends in this appeal that res judicata cannot be raised by motion prior to Answer but this contention is without merit, see Williams v. Murdoch, 330 F.2d 745 at 749 (3d Cir. 1964); Hartmann v. Time, Inc., 166 F.2d 127 (3d Cir. 1948) and 2A J. Moore, Federal Practice, ¶ 8.28 at 1863 (2d ed. 1968).
The judgment of the court below is affirmed.