i'm going to focus my argument on that which was the ground of which the district court ruled and the issue is whether the floor exe federal takings clause is barred by claim p n where state courts in an inverse condemnation case held that state law does not provide for compensatory damages for an unlawful the jury condemnation basically told the district court that there was a remedy under the eminent domain code and that is set forth in the r d s brief to the district court in the first federal case join but one either way you just referred to the eminent domain code and you could help me understand this case but my responding to to this question is part of your question is is yes the history about the two federal court and as they call it i'm not sure which one you're referring to but yes i think that the heart of the matter is that what the state court determined was that there was no state procedure for providing just compensation in this case because there was no procedure that governed a case in which a jury condon a condon the who successfully challenge th jury condemnation was seeking damages for the loss of his property during the condemnation proceedings if there's any answer your question to yes the inverse condemnation case the so we're talking our state a court action number two which is the inverse condemnation case and in that case the r t a took the position that there was no remedy under state law the  pleas court said there was a remedy there had been a taking which violated the state constitution the floors were entitled to compensation the commonwealth court never reached that issue and in fact express expressly in a footnote make clear it was not reaching that issue simply said regardless of what the merits of the taking claims are there is no procedure under state law now that should have ended it in terms of the reason that we were in state court in the inverse condemnation case was pursuant to the supreme court's opinion in williamson which said that you need to find out whether the state has a procedure for providing compensation we now had a ruling because the supreme court denied review of the commonwealth court we now had a ruling from the state courts that there was no procedure for providing compensation so the inquiry arguably required by williams and have been satisfied with the result there was no state procedure there was nothing there for to in any way stand in the way of the floor of moving ahead in federal court with their condemnation case which they did when they filed the second case that requires a condom me in the situation of a referral to state court under way emson to present his federal coin if that were the law judge you would be effectively nolen federal but if the state court refuses to adjudicate because there is no remedy under state law there is no obligation to present the federal claim and  rule and if he doesn't and the state court rules on the state issues to the extent that the state issues are coexistence with or concurrent with the federal issues he's bound but if the state court doesn't rule is that still a viable doctrine i think that the viability of england in a takings claim is very much diminished by san remo but it makes no difference in this case what's important in this case is that for whatever reason the federal claim was not presented and there was no id you cation whatsoever of any claim on the merits and there is no case that holds that you waive a federal claim in a case in which the state court never reaches the merits of the related state law claiming i know of no case that holds that and it respectfully wear that where the underlying claim grew out of the same transaction was not barred thereafter from submitting his nine hundred eighty three claim in federal court because the state did not reach the merits of the state claim growing out of the same transaction the state court held that the claim was barred by immunity it was a suit against as i recall police officers or city officials but under the federal statute the federal claim and unity was not a defense this court held in weight that because there had never been a ruling on the stay on the state claim going out of the same transaction in addition this court has held that has it has address pennsylvania preclusion law on a number of occasions the way the case that i mentioned also has an alternative holding and that is that under pennsylvania preclusion law a plaintiff could have included the taking of federal banking slain in the second say proceeding race judicata robbers not only that which was raised but that which preclusion also requires that there be an adjudication on the underlying claims in the state court and there was none in this case there is no requirement to present your let me put it this way you don't waive your federal claim if in the earlier case growing out of the same transaction there is no adjudication on the merits and that is totally consistent i'm in which underlying case are you talking about and in fact or the euro i'm sorry i'm talking about the inverse condemnation case the second in fact yes it's in you did not have a full and fair opportunity to present this issue to that  our position on that judge is that the law at the time that we brought that action was generally understood that you had no obligation to present a federal claim in even judge if i could just for a second in the sand name of case the supreme court noted that the second circuit in santini and i had come to an entirely different conclusion weight which is the third circuit case that if a pla f has reasonable grounds to believe that there is no obligation to present the claim that that excuses occlusive fact under pennsylvania claim preclusion law so yes that is one of our positions particular case and in most cases i wouldn't come to a contrary conclusion with respect to the pennsylvania domain however judge the fact of the matter is that in this case it does not in this case where there a jury condemnation which is determined to be unlawful and there's been a taking of the condom these rights as a result of that the only remedy provided by the in the domain code is counsel fees and out of this case that is not making the kind of the whole it is not compensation for the loss of property so what was lost what damages is sue mean the theory of taking here can be given cognizance just how was your client damaged in any sense they they retained use an enjoyment of the real property throughout that period did they not and continue to operate that this they continue to have possession and they continue to operate the business so is the theory that somehow they did not because of who he title have the right to alienate the property in any way because they can't conceive of any other damage that would be compensable here and if that's the theory doesn't the record demonstrate that they made no effort and really have any interest in seeking to alienate the property doing well your honor to take the last point first whether they had an interest in it the property they didn't have the ability to do a member of this condemnation proceeding took place as i recall over a five year plus time period at the very least i understand it would have been a cloud on the title over that period of time i would have if they really just that's why i didn't  but apart from that judge as a practical matter and as a legal matter you can't do anything with your five you can't this plant was a in poor condition it needed to be upgraded they couldn't invest they couldn't come up with the development plans they didn't plan for their future they were stuck in a situation where they could do nothing you can't first of all you have title you can't come in and apply for permits but secondly if you don't have title you can't build improvements if you if at the end of the day your plumbing our objections to the condemnation you lose then you've spent all this money and you're out of pocket you can't get any compensation for it they were affected least i mean from doing many many of the important things by saying that indirect costs are generally not recoverable that we're dealing with the property not the person how to get around that well these are i know these are not indirect costs these are this these are damages for loss of property rights i mean for example just just to give you one analogy this one could liken the situation that the florida ran to a situation in which somebody had an option to buy their property and if somebody had come to them and said we want an option to buy your property for whatever the five and a half years they would have been entitled to compensation they would have been given away their right the eliminate the property they couldn't develop the property rights and that is what that is you know that is what the due process clause with respect to taking without just compensation is that the taking of property rights without just compensation your argument would be that the under the federal cases federal law would be brought under the pennsylvania i'm saying that with i get it about your honor judge smyth of the court a common pleas held that this was a taking under state law that entitle my clients to compensation so i disagree that under state law my clients would not be entitled to compensation and the only court that has ever ruled on the issue in this case has held in favor of my clients but clearly under the federal authority the taking of property rights for substantial period of time fundamental property rights is a compensable taking then you're arguing a de facto taking the floor no it's pens under definition just because the reason i'm inclined to say no to you that there was a declaration of taking what's known as a does your condemnation usually de facto is understood to mean a taking by what by virtue of what the government does as opposed to the filing of a condemnation but what is so important about the filing of a condemnation is that it is clear under supreme court authority that that is a taking it is a direct taking of property and so the federal cases that deal with the wreck taking and hold that back five does not seem to be arguing now that in a defacto sense they took a property right from you and that is the right alley and it is property or do something with it for five years where you are i just take issue i don't follow you saying a de facto sense it wasn't the fact though it was a direct taking we did when that when the declaration of taking was filed my clients were no longer had title to the property right it was a direct taking that was the first this is why i tried to walk a little bit through the procedure that was the first state lawsuit the second state lawsuit was an inverse condemnation proceeding was it not correct under williamson and that was believed by the district court to be required under the winston case for the sole purpose for the sole purpose under way emson of the terminating whether state law how to proceed or for giving compensation to the deprivation of property rights for a condom the who successfully challenge it is your condemnation it wasn't a case in the end your position is the eminent domain code does not have a section provides explicitly for six damages it's not my position judge it's the position of the pennsylvania state courts through the supreme court of pennsylvania in the inverse condemnation case and its but it is my position that once that is a stablished that the purpose of williamson is good morning members of the court john f smith from reed smith on behalf of the redevelopment authority it's hard to know which of many red herrings that have been trailed across the path to address first of let me start with the notion that somehow the authority took an inconsistent position in the course of this litigation this has been said over and over again by the floor and it is it's been rejected by the commonwealth court and rejected in fact because the authority said consistently in the early proceedings before judge davis in the first federal action that any d facto taking of the property that occurred was fully within the eminent domain code the code provides the sole exclusive remedy now the authority was not conceding that there was a taking within the constitutional sense the that there be any award of damages and in fact in that very same pleading we have a section entitled plaintiffs have not stated a claim for an unconstitutional taking and i respectfully submit that under and central and other cases of the supreme court's jurisprudence this can in fact be seen this incidental taking as part of the did europe declaration of taking  was not in fact taking which rises to a constitutional level but let me address some of the other issues that mr thousand has has addressed first of all the suggestion that under williamson one just goes over to the state court for a ruling about whether or not there was a procedure that's simply stands williamson on its head you're not simply asking a question asking the question is the classic english situation a classic english situation a federal court has a question on its mind but thinks that the state could answer the question and so it abstains from proceeding further in order to allow the state court to answer the question it should be noted that in england and all these other cases where there was some kind of reservation that was it the state court that the federal court in this case judge davis had jurisdiction in the first place but under williamson the federal court doesn't it's not in a position to abstain hold on to the lawsuit and let the state courts answer a question which one answer can come back to the state court judge davis clearly held that he didn't have jurisdiction he was asked to stay the case he said no i don't have jurisdiction i can stay the case the matter goes over and understand remote it's adjudicated and that's what happened here state court proceeding because the proper procedure for raising questions about whether or not there's any entitlement is to file the preliminary objections to the petition for board of you and unlike many common pleas situations when you file objections to a board of view you're raising substantive questions on the merits so that's the vehicle under the l an eminent domain code and in the pennsylvania judicial process for getting to the merits of whether or not there is a claim graphic of ways we fought in the first several proceedings the whole notion that this should be dealt with by the federal courts there was nothing federal about this we said you need to go to the state court so we objected through the very process of filing the motion to dismiss in the federal court and i'm talking about specifically with respect to the england reservation which appears as a footnote in the petition for appointment of a board of you it's there it's clear are you under an obligation to object to it in that critical if you don't well question of whether or not this belongs in federal court i don't believe there's any duty there's no affirmative duty on our part to object if what the plaintiff decides to do is to put one hand behind its back and not raise its federal in this particular litigation it was not addressed one way or the other well or in any litigation in pennsylvania i mean how is the lawyer or science supposed that you no longer had a pencil and you didn't recognize an england reservation i mean you're saying it doesn't make it so and so if you are a lawyer or scien appropriate and wasn't fact made oh all right so that's a slightly different position than i think the one you just articulated i guess i saw it so i can feel a little clearer in a case such as the present case where the federal court in the first proceeding to not have jurisdiction to begin with and did not in fact send the matter over to the state court for an adjudication on a particular question about which the federal court had a question the in those reservations simply doesn't the rise in the first place there's no jurisdiction of the federal court there is nothing to ask a state court to do for it's simply said under our law i just i'm i'm i'm just not following you know i mean from their standpoint they say well we didn't ask the litigated there's no preclusion which he said was the first thing that was an issue here because they thought that they had reserved their right their thinking is playing their constitutional right it's like right or wrong i mean that was their if one has not made a proper england resit reservation because the court the federal court didn't have jurisdiction in the first place and there wasn't fact no question being posed by the federal district court to the state court saying give me an answer so i can proceed it was simply a vacant exercise ok and now i would like to discuss the question of whether there was a ruling on plaintiff federal rico claim which could have been brought the court said you know prior state action but in that prior state action there was a dismissal of the claim before it even got to the merits notwithstanding where sovereign immunity for the municipality prevented the court from even getting to first base nor was it a question of improper venue or any of the other bases that are sometimes recognized in the restatement of judgments objections raised by the authority to be taking petition for rules on everything rules on the constitutional issues the rules on the state court constitution it says article one section ten of our constitution requires that a broader view be taken of what relief is appropriate in this situation and as a matter of fact the floor these argue they contend in their papers that this was it ruling on the merits so at least in their view the very first case out of the box in the second state court proceedings yes i think that that that is that's a key question of course your honor and i would respectfully suggest to you that the answer that is is yes and i would note that for example the turner case decided by this court in two thousand and six in that case the plaintiff previously that it litigated in the state court but it helped back some of its federal her federal arguments and now back in the federal was proceeding on a federal authority now the third circuit in turn or recognise that in pennsylvania as your honor has said here race judicata applies not only to claims actually when to get it but also t claims which could have been litigated i don't think there's any question and i think mr president has conceded that this was a situation in which the federal constitutional issue could have been raised and in fact the the supreme court in san remo expressly says a plaintiff in this kind of situation can go into the state and the domain code proceeding and can say look under state law on entitle to relief and could argue in the alternative and this is exactly what the courts are arguing the alternative that if you don't give it to be that's a violation of the fifth amendment united states constitution so there's no question here that they could have done this now the question is that maybe they didn't have to but if you don't do it you stand at risk of being found to be foreclosed when you try to raise it again in another setting and that's exactly what happened in t respect to the same ribault argument i believe that the supreme court went further in san remo than even mr smith or you and i think that that appellant misread send remote because after saying that what you can do is say to the state court if you find no compensation under state law then you're in violation of the fifth amendment they go on to say that if you don't do that that's piecemeal litigation and that's precisely what the doctrine of race judicata is intitled it isn't is intended to prevent it does does not i mean i brought bradley bradley's a case i know something about because judge slow better in it reversed a young district judge from its birth and i learned a lot from case seems to me that's what she said but were speaking for the court also said that there was no supreme court decision on the on the question of the scope of england and  so the group would look at why it determined to be the rationale for england rather than the holding but what the supreme court in san remo says about england is it never allowed this went beyond appellant which is we were right on all these cases and the supreme court dismissed that page three thirty eight of the u s report when it said simply that was an erroneous expectation that's a quote from the this court that you are bound by that and not withstanding that courts perhaps including this court misread in wind and people relied on it that that c n n reports that the rest and says you shouldn't have relied on  the argument that there was no longer a valid england reservation doffing that's pretty straightforward right yes you're right but i think even beyond that i think the record shows that that was their strategy from the beginning because even actions made to the declaration of taking they reserved for that so so it wasn't a reservation initially of from the federal court back to the state court assigned the argument that there is no taking here underage or the dri taking because indeed all the cases that find such a taking and find that there needs to be a remedy for such takings are cases where there are physical takings but i think that issue is and of quickly addressed in the briefs and i don't intend spend any more time on it i would like to come back to san remote for just a second because one of the issues that mr basil on raises is that it was the constitutional issues that he could have raised were in fact not ever made part of that proceed and that's just not right if you look at smyth opinion at the lowest level in fact judge smyth on the basis of the pennsylvania constitution balanced that there was a right to a takings recovery in  situation and that was necessarily appeal to the commonwealth court i will certainly can see that the commonwealth court did not address it directly but this is not a situation where it was a collateral issue if the common court felt it was an issue and didn't find a remedy under the statute it would have had to address the second issue so i think we have to win for that they did not regard that or human under the pennsylvania state constitution as valid also after before the commonwealth court decision came down sand remote came down the petitions for alan carter were filed after that and particularly given that smyth had already decided to pencil in constitutional statement of the case i think this case really is about is whether where there is a reference to state quick to satisfy a rightness requirement a determination by the state court that there is no remedy available under state law without any adjudication of the merits economy is thereby precluded from pursuing his federal claim talking what i agreed to was that we could have presented the federal claims i didn't say anything other than that and i am who i was and i said also that we were under no obligation to do so but let me address first the to the petition that the floor is filed to have the supreme court review the commonwealth court here is what the r d n a told the supreme court of pennsylvania and this is a direct quote the damages to which the plaintiffs were entitled under the eminent domain code were limited to reimbursement for their expenses since these been paid no further damages could be claimed by the commonwealth court never reached the authorities other two arguments these the i z that the trial court erred in holding that the plaintiffs were entitled to damages as though it the facto taking had occurred and that the trial court erred by failing to hold a hearing for the purpose of the term and whether de facto taking had occurred that's of the joint appendix at six nineteen the common the been no ruling on the merits they want to step further in what they told the supreme court in their brief to the supreme court they said because there's been no ruling on the merits where they had situation here because now the plaintiffs can proceed in federal court on the federal claims and they can actually go back to stay court and proceed in state court on their state claims and so because of that if you grant if you grant the petition for but peel please consider the federal claims as well and that was the first time that the redeveloping authority it ever said anything about the federal claims being considered as they court and this was in a petition for helicopter petition for review by the supreme you're correct and that's in the record it j six nineteen furthermore why would the redevelopment authority have asked the supreme court to review the federal claims if they thought they'd already been a ruling out of the federal claims it's like saying we won the case but we wanted to be reviewed they knew and they said to the commonwealth court that the merits of never been reached and it just could not be clearer and it's most clear by the commonwealth court's opinion itself that footnote five joint appendix one fifty where the commonwealth court specifically says it's not addressing these issues the notion that there was an adjudication on the merits by the commonwealth were is simply completely and totally belied by the record and by the commonwealth court's decision in this case now if there is no adjudication on the merits in the inverse condemnation case in a situation where there's been a referral to the state court under way and then you never get to the question of whether or not a federal claim should have been submitted because there is no reason to have submitted the federal claim no purpose to be served by having a state court rule on a federal claim where there is no issue before the state  but if you do get to the issue of preclusion under state law i want to pick up a theme which was developed in the questioning i think you asked jack slogger whether there was an affirmative obligation to object to the withholding of the federal claim and there's no question judge under the law in this in the circuit that under bradley which is your decision there is that obligation and by the way it's bradley's not the only case  edwards vs the ivy club at nine forty three a second to seventy also has that holding and there is another case that so holds from the ninth circuit a very interesting case called dodd vs put river company at fifty nine f third a fifty two your opinion was actually written by that this is accepted not only the third circuit but in the only other circuit that i know that is ever expressed the so rule that if there is acquiescence by the opposing party and or by the courts that you cannot have a claim preclu and here there was complete acquiescence and also there was acquiescence by the courts i submit because in just mice opinion where he held the taking to be unconstitutional he never referenced any federal authority micah's yeah