IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, OF RIGHT-OF-WAY FOR STATE ROUTE 0022, SECTION 034, IN THE TOWNSHIP OF FRANKSTOWN

Filing 25

MEMORANDUM OPINION AND ORDER denying 23 Motion for Reconsideration, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 10/29/2018. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF RIGHT-OFWAY FOR STATE ROUTE 0022,
SECTION 034, IN THE TOWNSHIP OF
FRANKSTOWN

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Case No. 3:18-cv-57
JUDGE KIM R. GIBSON

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MEMORANDUM OPINION

I.

Introduction

Pending before the Court is the Motion for Reconsideration ("Motion") (ECF No.
23) filed by Condemnee Stewart Merritts, Jr.

Merritts filed a brief in support of his

Motion. (ECF No. 24.) PennDOT did not respond to Merritts's Motion. For the reasons
stated below, the Court will DENY the Motion.

II.

Background

Merritts owns two parcels of land in Frankstown Township, Pennsylvania, totaling
1.5 acres.

(ECF No. 3 at 3-4.)

In February 2016, the Pennsylvania Department of

Transportation ("PennDOT") informed Merritts that it would need to acquire a small
portion of his land for a highway improvement project. (ECF No. 3-1 at 2.) PennDOT
subsequently offered Merritts $500.00 to purchase a right-of-way to the land, which
included a nearly 3,000 square foot temporary construction easement and a 1,150 square
foot drainage easement. (Id. at 1.) Merritts rejected PennDOTs offer, and made a counter
offer which PennDOT declined. (ECF No. 3 at 3.)

PennDOT filed a Declaration of Taking in the Court of Common Pleas of Blair
County, Pennsylvania. (Id. at 4.)

Merritts filed Preliminary Objections asserting, inter

alia, that PennDOT did not have the authority to condemn his property, that the taking
was unconstitutional because it benefitted a private enterprise, and that the taking was
excessive. (See ECF No. 3-3 at 3-3 at 3.)
PennDOT responded by filing a Motion to Dismiss Merritts' s Preliminary
Objections and a Motion for Writ of Possession. (Id.) The Court of Common Pleas held
oral argument. (Id.) The Court of Common Pleas then issued an opinion which denied
and dismissed Merritts's Preliminary Objections, granted PennDOTs Motion to Dismiss
and Motion for Writ of Possession, and awarded PennDOT possession of Merritts's
property. (Id. at 5.)
Merritts appealed. (Id.) The Commonwealth Court received briefs and heard oral
argument from both parties.

(Id.)

On February 26, 2018, the Commonwealth Court

affirmed the decision of the Blair County Court of Common Pleas. (Id.)
On March 26, 2018-exactly thirty days after the Commonwealth Court's
decision-Merritts filed a notice of removal. (ECF No. 1.) PennDOT did not challenge the
removal, or even enter an initial appearance in the case.
On July 13, 2018, Merritts filed a Petition to Stay Construction (ECF No. 5), which
the Court interpreted as a Motion for a Preliminary Injunction. The Court held a status
conference on the Motion for a Preliminary Injunction on July 25, 2018. (ECF No. 12.)
Counsel for both parties agreed that the Court should resolve the jurisdictional issue

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raised in PennDOTs Motion to Dismiss before deciding Merritts's Motion for a
Preliminary Injunction. (See id.)
PennDOT argued that the Court should dismiss Merritts' s removal action for
several reasons. First, PennDOT contended that Merritts improperly removed his case
long after the 30-day statutory removal period expired. (ECF No. 9 at 6.)

Second,

PennDOT argued that the Rooker-Feldman Doctrine precludes the Court from possessing
subject-matter jurisdiction over Merritts's case.

(Id. at 9.)

Finally, PennDOT further

asserted that the Court should abstain from hearing Merritts's case under Burford. See

generally Burford v. Sun Oil Co., 319 U.S. 315 (1943).
On August 28, 2018, the Court entered a Memorandum Opinion and Order
granting PennDOTs Motion to Dismiss for Lack of Jurisdiction. (ECF No. 18.) The Court
held that (1) PennDOT waived any objection to the untimeliness of Merritts's removal by
failing to object to removal within 30 days, (2) the Court lacked subject-matter jurisdiction
under the Rooker-Feldman Doctrine, (3) the Court should abstain from hearing the case
under Burford, and (4) Merritts did not establish subject-matter jurisdiction under the
well-pleaded complaint rule. (See id.) Accordingly, the Court remanded the case to state
court. (Id. at 12.)
Merritts filed the instant Motion (ECF No. 23) and brief in support (ECF No. 24) on
September 27, 2018. Merritts argues that the Court erred in remanding the case to state
court because there is subject-matter jurisdiction based on diversity of citizenship. (Id. at
1.) Merritts specifically argues that: (1) the Court improperly applied the Rooker-Feldman

Doctrine, (2) the Court improperly applied Burford using non-precedential case law, (3)

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Merritts should be held to a less stringent pleading standard because he was a pro se
litigant when this case began, and (4) removal was proper because Plaintiff PennDOT
invoked federal jurisdiction. (See ECF No. 24.) The Court will address each of these
arguments in tum.

III.

Legal Standard on Motions for Reconsideration
Under Rule 59(e) of the Federal Rules of Civil Procedure, a party may file a motion

to alter or amend a judgment no later than 28 days after the entry of the judgment. FED.
R. Ov. P. 59(e).

"A motion for reconsideration is a limited vehicle used 'to correct manifest errors
of law or fact or to present newly discovered evidence."' Jackson v. City of Phi/a., 535 F.
App'x 64, 69 (3d Cir. 2013) (quoting Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros,
176 F.3d 669,677 (3d Cir. 1999)). "Accordingly, a judgment may be altered or amended if
the party seeking reconsideration shows at least one of the follmving grounds: (1) an
intervening change in the controlling law; (2) the availability of new evidence that was not
available when the court granted the motion for summary judgment; or (3) the need to
correct a clear error of law or fact or to prevent manifest injustice." U.S. ex rel. Schumann

v. Astrazeneca Phann. L.P., 769 F.3d 837, 848-49 (3d Cir. 2014) (quoting Max's Seafood Cafe,
176 F.3d at 677) (internal quotation marks omitted).
"Motions for reconsideration are not designed to provide litigants with a 'second
bite at the apple."' Cole's WexjLJrd Hotel, Inc. v. UPMC & Highmark Inc., No. CV 10-1609,
2017 WL 432947, at *2 (W.D. Pa. Feb. 1, 2017) (quoting Bhatnagar v. Surrendra Overseas Ltd.,
52 F.3d 1220, 1231 (3d Cir. 1995)). "A motion for reconsideration is not to be used to

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relitigate, or 'rehash/ issues the court already decided, or to ask a district court to rethink
a decision it, rightly or wrongly, already made." Cole's Wexford Hotel, 2017 WL 432947, at
*2 (citing Williams v. City of Pittsburgh, 32 F. Supp. 2d 236, 238 (W.D. Pa. 1998)). "By
reason of the interest in finality, at least at the district court level, motions for
reconsideration should be sparingly granted." Cole's Wexford Hotel, 2017 WL 432947, at *1.

IV.

Discussion
A.

The Court Lacks Subject-Matter Jurisdiction Under the RookerFeldman Doctrine

In its Memorandum Opinion entered on August 28, 2018, the Court found that it
lacks subject-matter jurisdiction to hear this case under the Rooker-Feldman Doctrine.

(See ECF No. 18 at 6-8.) Merritts argues that the Court erred in applying Rooker-Feldman.
The Rooker-Feldman Doctrine stands for "the principle that federal district courts
lack jurisdiction over suits that are essentially appeals from state-court judgments." Great
W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 165 (3d Cir. 2010) (citing

Rooker v. Fidelity Tr. Co., 263 U.S. 413 (1923); D.C. Ct. of App. v. Feldman, 460 U.S. 462
(1983)).

The doctrine applies in "cases brought by state-court losers complaining of

injuries caused by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments." Id. at
164 (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
"[A] claim is barred by Rooker-Feldman in two circumstances: first, if the federal
claim was 'actually litigated' in state court prior to the filing of the federal action or,
second, if the federal claim is 'inextricably intertwined with the state adjudication."'

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Walker v. Horn, 385 F.3d 321, 329 (3d Cir. 2004) (quoting Desi's Pizza, Inc. v. City of WilkesBarre, 321 F.3d 411, 419 (3d Cir. 2003)).
The Third Circuit has broken down the Rooker-Feldman into four elements that
must be met for the doctrine to apply in either of the circumstances mentioned above. For

Rooker-Feldman to apply, the Court must find the following: "(1) the federal plaintiff lost in
state court; (2) the plaintiff complains of injuries caused by [the] state-court judgments; (3)
those judgments were rendered before the federal suit was filed; and (4) the plaintiff is
inviting the district court to review and reject the state judgments." Schatten v. Weichert

Realtors, Inc., 406 F. App'x 589, 591 (3d Cir. 2010) (citing Great W. Mining & Mineral Co., 615
F.3d at 169).
The Third Circuit has explained that "the Rooker-Feldman Doctrine is a narrow
doctrine that applies only in limited circumstances." Shibles v. Bank of Am., N.A., No. 172386, 2018 WL 1448670, at *2 (3d Cir. Mar. 23, 2018) (internal quotation marks omitted)
(quoting Great W. Mining & Mineral Co., 615 F.3d at 169). "[W]hen the source of the injury
is the defendant's actions (and not the state court judgments), the federal suit is
independent, even if it asks the federal court to deny a legal conclusion reached by the
state court[.]" Shibles, 2018 WL 1448670, at *2 (quoting Great W. Mining & Mineral Co., 615
F.3d at 167.). Accordingly, for the Court to determine that Rooker-Feldman precludes
Merritts from removing his case to federal court, the Court "must determine that the
injury alleged was 'produced by a state-court judgment and not simply ratified,
acquiesced in, or left unpunished by it."' Shibles, 2018 WL 1448670, at *2 (quoting Great W.

Mining & Mineral Co., 615 F.3d at 167.).

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In its Memorandum Order entered on August 28, 2018, the Court held that it lacks
subject-matter jurisdiction over Merritts' s claims because the Rooker-Feldman Doctrine
applies. The Court held that all four elements of Rooker-Feldman were satisfied. The first
element of Rooker-Feldman was satisfied because Merritts lost the condemnation
proceeding in state court. Schatten, 406 F. App'x at 591. The second element was satisfied
because Merritts complains that the state court judgment-namely, the decision to grant
PennDOTs Motion for Writ of Possession, which allowed PennDOT to condemn his
property through eminent domain-produced his injury. 1 Id.

The third element was

satisfied because Merritts removed his case to this Court after judgment was rendered
against him in the state tribunals. Id. And the fourth element was satisfied because
Merritts asks this Court to exercise appellate jurisdiction over the Commonwealth Court
by arguing

that the Commonwealth Court's decision violates the Fourteenth

Amendment's due-process clause and requesting that this Court overturn the
Commonwealth Court's decision. (See ECF No. 3 at 11.)
In his Motion for Reconsideration, Merritts argues that the Rooker-Feldman
Doctrine does not apply here because (1) his federal claims were never "actually litigated"
in the state court, (2) the state court never issued a final judgment, (3) Merritts seeks

Merritts argues that "[f]or the Commonwealth Court of Pennsylvania to rule as it did, would
confer the power of eminent domain without the element of sovereign title on the part of
Pennsylvania, without the due process of law and just compensation, which is required as a matter
of both federal and state constitutional law." (ECF No. 3 at 11.) As this passage indicates, Merrits
contends that the state court's judgment condemning his property caused his injury. Accordingly,
Merritts does not allege that the state-court judgment ratified, acquiesced in, or failed to punish a
prior harm caused by PennDOT. See Shibles, 2018 WL 1448670, at *2.

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prospective relief, and (4) "Merritts's land was granted by previous foreign nations."
(ECF No. 24 at 3-7.)
First, Merritts argues that Rooker-Feldman does not apply because his claims were
never actually litigated in the state court.

For a claim to be "actually litigated" for

purposes of the Rooker-Feldman Doctrine, the claim must have been raised in prior
litigation or be so "inextricably intertwined" with the other claims in the case that it
should have been litigated in the state-court proceeding. ITT Corp. v. Intelnet Int1, 366
F.3d 205, 210-11 (3d Cir. 2004) (citing Ivy Club v. Edwards, 943 F.2d 270,294 (3d Cir. 1991)).
Here, Merritts seems to argue that his Preliminary Objections to PennDOTs
Motion for Writ of Possession were not actually litigated in the state court. But the record
clearly shows the opposite. The Blair County Court of Common Pleas held oral argument
on PennDOTs Motion for Writ of Possession and Merritts's Preliminary Objections,
ordered the parties to submit briefs on the issue, and then held an evidentiary hearing.
(ECF No. 3 at 4-5.)
Nonetheless, Merritts argues that his "federal claims were never actually litigated
in state court prior to the filing of the federal action." (ECF No. 24 at 4.) While unclear
from his brief, the Court presumes that Merritts refers to his argument that the
Commonwealth Court's decision violates the Fourteenth Amendment, which is an issue
that he raises for the first time in federal court. However, the Third Circuit does not allow
a party who lost in state court to raise new constitutional issues for the first time in a
federal district court. The Third Circuit held that "a plaintiff cannot ordinarily litigate one
constitutional claim in state court and then raise a related constitutional claim in the

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district court." Walker, 385 F.3d at 329-30 (citing Valenti v. Mitchell, 962 F.2d 288, 296 (3d
Cir. 1992)). "[Plaintiffs] cannot be allowed to escape Rooker-Feldman by raising a new
constitutional theory in federal court. Under principles of claim preclusion, they had a
full and fair opportunity to litigate their ... claim in the state court, and here they merely
seek a second bite at the apple." Id. (citing Valenti, 962 F.2d at 296).

The Court finds that

the Third Circuit's decisions in Walker and Valenti are directly on point here. Accordingly,

Rooker-Feldman prevents the court from exercising subject-matter jurisdiction over
Merritts' s Fourteenth-Amendment claim, even though it was not raised in state court.
Second, Merritts argues that the state court did not issue a final judgment on his
claims. 2 A final judgment is "[a] Court's final determination of the rights and obligations
of the parties in a case." Judgment, BLACK'S LAW DICTIONARY (10th ed. 2014) (citing FED.
R. CIV. P. 54); see also Waldorf v. Shuta, 142 F.3d 601, 611 (3d Cir. 1998) (quoting Sears,

Roebuck & Co. v. Mackey, 351 U.S. 427, 436 (1956) ("A final judgment is 'an ultimate
disposition of an individual claim entered in the course of a multiple claims action."')).
Here, the state court did render a final judgment-the Court of Common Pleas of
Blair County granted PennDOTs Motion for Writ of Possession on February 8, 2018. This
constituted a final judgment because it entirely resolved the eminent-domain issue and
permitted PennDOT to condemn parts of Merritts's property.

(See ECF No. 3-3.)

Merritts cites a Pennsylvania statute, 42 PA. CONS. STAT. § 9545(6)(3), and case, Commonwealth v.
Miller, 102 A.3d 988, 933 (Pa. 2014), for the proposition that the Rooker-Feldman Doctrine only
applies to final decisions of the highest state court, which in this case would be the Supreme Court
of Pennsylvania. (ECF No. 24 at 4.) However, as his brief discloses, this argument is obviously
meritless. In the same section of his brief, Merritts admits that "the Rooker-Felman Doctrine has
been applied to final decisions of lower state courts." (Id.) See, e.g., N. V. Siravo v. Countrywide
Home Loan, 349 Fed. App'x 766, 767-68 (3d Cir. 2009) (applying Rooker-Feldman to a federal court
case brought by a plaintiff who lost in the Court of Common Pleas).
2

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Moreover, Pennsylvania law clearly establishes that a decision on a writ of possession is a
final judgment. See PA. R. Ov. P. 3160 ("A judgment for possession shall be enforced by a
writ of possession."); see also 22 STANDARD PENNSYLVANIA PRACTICE 2d § 120:122 (WestThompson Reuters 2018) (citing Johnson v. Martofel, 797 A.2d 945 (Pa. Super. 2002)) ("A
writ of possession is simply the legal means for executing on a judgment of possession.").
Third, Merritts argues that the Rooker-Feldman Doctrine does not apply because his
Complaint seeks only prospective relief-an injunction and declaratory relief. 3 (ECF No.
24 at 5.) This argument is unconvincing, however, because Rooker-Feldman applies when a
party who lost in state court asks a federal court to undo the state-court ruling, regardless
of the type of relief sought in federal court. See Exxon Mobil Corp., 544 U.S. at 293. Rooker-

Feldman does not apply if "the federal plaintiff presents some independent claim, albeit
one that denies a legal conclusion that a state court has reached in a case to which he was
a party."

Great W. Mining & Mineral Co., 615 F.3d at 166 (citing Exxon Mobil Corp., 544

U.S. at 292-93). Here, Merritts' s claim does not present an independent legal claim or ask

In support of this argument, Merritts cites a Tenth Circuit decision and recent Third Circuit
decision. Neither of these cases are on point here. In the portion of Mo's Express, LLC v. Sopkin that
Merritts cites to, the Tenth Circuit held that Rooker-Feldman did not apply to the federal-court
plaintiff's (state court loser's) equitable claims because those claims "requested only prospective
injunctive and declaratory relief that would prevent the PUC from exercising jurisdiction over
them in the future." 441 F.3d 1229, 1238 (10th Cir. 2006). Rooker-Feldman did not apply to these
claims because "[t]he Plaintiffs ... have not requested money damages that would compensate
them for those penalties [that were the subject of the prior state-court ruling]. Nor have they
requested retrospective relief that would invalidate any past action of the PUC." Id. This case is
easily distinguishable because here, Merritts does not seek equitable relief to shield him from
future action by PennDOT. Rather, Merritts seeks an injunction and declaratory relief that would
undo the state-court decision on the original condemnation issue. Merritts also cites to the "pivotal
case" In re Philadelphia Enter. & Dev. Partners. without further explanation. 879 F.3d 492, 500 (3d
Cir. 2018). That case is wholly inapplicable here, however, because it dealt with a federal claim in
bankruptcy court that would not have caused the federal court to void a state-court order. Id. at
503-04. But here, Merritts seeks relief that would entirely undo the state-court decision.
3

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the Court to reach an independent legal conclusion. Rather, his due-process claim is
inextricably intertwined with the issues addressed by the Court of Common Pleas and the
Commonwealth Court. In essence, Merritts asks this Court to review the Commonwealth
Court's judgment and undo it by declaring PennDOT s condemnation of his property to
be unconstitutional.

The type of relief sought does not affect these conclusions.

Therefore, Merritts's federal claim is barred by Rooker-Feldman even though he only seeks
equitable remedies.
Fourth, Merritts argues that "the Rooker-Feldman Doctrine would not apply in this
case as the title to Mr. Merritts's land was granted by previous foreign nations." (ECF No.
24 at 6.)

Merritts argues his land was originally conveyed by Pennsylvania's then-

Governor Robert Morris in 1755, which prevents the government from condemning it
through eminent domain. (Id.; ECF No. 3 at 8-10.) The Commonwealth Court rejected
this argument in its thorough opinion, which recited the state and federal law bases for
eminent domain and rejected Merritts's argument. (ECF No. 3-3 at 10-14.) The Court
agrees with the reasoning in the Commonwealth Court's opinion and can find no other
basis for the proposition that the Rooker-Feldman Doctrine does not apply to property
disputes involving the "land of a superseded government." Under that rationale, all
property disputes would be exempted from Rooker-Feldman so long as the land in question
could be traced back to its pre-United States roots, which would be an absurd result.
Therefore, the Court agrees with the Commonwealth Court's reasoning and rejects
Merritts' s argument.

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In sum, the Court finds Merritts's arguments on Rooker-Feldman to be
unpersuasive. Thus, the Court finds that its prior ruling was not manifestly unjust and
will affirm its holding that the Rooker-Feldman Doctrine applies and precludes this Court
from exercising subject-matter jurisdiction. Accordingly, Merritts' s Motion is DENIED
with respect to the Court's prior decision on Rooker-Feldman.

B.

Merritts Does Not Successfully Argue that the Court Improperly
Abstained Under Burford

In its Memorandum Order and Opinion (ECF No. 18 at 9), the Court found that it
should abstain from hearing Merritts' s case under the Burford abstention doctrine. See

Burford, 319 U.S. at 320-25. Under Burford, "a district court may decline to exercise or
postpone jurisdiction, even diversity jurisdiction, 'where a difficult question of state law is
presented which involves important state policies or administrative concerns."' Rucci v.

Cranberry Twp., 130 F. App'x 572, 577 (3d Cir. 2005) (quoting Heritage Farms, Inc. v. Solebury
Twp., 671 F.2d 743, 746 (3d Cir. 1982)).
Merritts argues that the Court erred by abstaining under Burford because it relied
on non-precedential case law in reaching its decision. (ECF No. 24 at 8-9.) However,
Merritts does not identify which cases in the Court's Memorandum Opinion were nonprecedential. (Id. at 9.) Nor does Merritts point out which precedential cases the Court
should have relied upon instead. (Id.) Regardless, this argument is unpersuasive because
the Court relied on five opinions of the Supreme Court of the United States, six published

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opinions of the Third Circuit Court of Appeals, and two district-court opinions in its
Memorandum Opinion. (See ECF No. 18 at 8-11.) 4
Additionally, Merritts makes two unrelated arguments regarding Burford
abstention. First, Merritts asserts that Burford was overturned by Quackenbush v. Allstate

Ins. Co. without additional support.

517 U.S. 706 (1996).

While Quackenbush did

distinguish Burford, it did not overturn it. See Lewis Yelin, Burford Abstention in Actions for

Damages, 99 COLUM. L. REV. 1871, 1874-76 (1999) (explaining that Quackenbush held that
federal courts can only remand and dismiss cases under Burford whenever a party seeks
equitable relief, thereby clarifying procedural details of Burford abstention).
Second, Merritts similarly argues that Burford is inapplicable to cases where the
federal-court plaintiff seeks only legal relief, instead of equitable relief. (ECF No. 24 at 9.)
This argument, however, is inconsequential since Merritts only seeks equitable relief, as
he points out elsewhere in his brief.
Accordingly, Merritts' s Motion is DENIED with respect to the Court's prior
decision on Burford abstention.
C.

Merritts Did Not Establish Subject-Matter Jurisdiction Under the WellPleaded Complaint Rule, Even as a Pro Se Litigant

Merritts argues that the Court has an obligation to construe Merritts's pleadings
liberally, including his Notice of Removal to this Court (ECF No. 1), because Merritts was
The Court cited the following Third Circuit opinions (see ECF No. 18 at 8-11), all of which are
precedential: Hamilton v. Bromley, 862 F.3d 329,331 (3d Cir. 2017); Ky. W.V. Gas Co. v. Pa. Publ. Util.
Comm'n, 791 F.2d 1111, 1114 (3d Cir. 1986); Hi Tech Trans, LLC v. N.f., 382 F.3d 295, 303 (3d Cir.
2004); Baykeeper v. NL Indus., Inc., 660 F.3d 686 (3d Cir. 2011); and Heritage Farms, Inc. v. Solebury
Twp., 671 F.2d 743 (3d Cir. 1982). The Court only cited one Third Circuit opinion that was nonprecedential, Rucci v. Cranberry Twp., 130 F. App'x 572 (3d Cir. 2005), and Court's conclusion did
not depend on its analysis of Rucci.

4

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a prose litigant when he removed this case to federal court. (ECF No. 24 at 9.) The Court
notes that pro se pleadings are generally construed liberally. See, e.g., Erickson v. Pardus,
551 U.S. 89, 94 (2007).
However, the Court cannot construe jurisdictional rules liberally in favor of pro se
litigants. Jurisdiction is a prerequisite to a federal court hearing any case. The Supreme
Court of the United States has held that "[w]ithout jurisdiction the court cannot proceed
at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist,
the only function remaining to the court is that of announcing the fact and dismissing the
cause." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (quoting Ex Parte

Mccardle, 74 U.S. 506, 514 (1868)). Here, based on the Court's conclusions on the RookerFeldman and Burford issues, the Court does not have subject-matter jurisdiction. That
conclusion is unaffected by the fact that Merritts was not represented by counsel when he
removed his case to this Court.
In this section of his brief, Merritts adds that he was deprived of due process of
law because the state court was unable to fairly adjudicate the eminent-domain issue.
This argument is also unpersuasive.

It is well-established that eminent domain is a

"distinctly state-law matter." Rucci, 130 F. App'x at 577 (citing La. Power & Light Co. v.

City of Thibodaux, 360 U.S. 25, 28-29 (1959)). "[S]ignificant state policies and administrative
concerns underl[ie] a state's eminent domain proceedings." Coles v. City of Phila., 145 F.
Supp. 2d 646, 652 (E.D. Pa. 2001). "Burford abstention is usually applied to ... state
eminent domain procedures." Rucci, 130 F. App's at 578 (quoting Grode v. Mut. Fire,

Marine & Inland Ins. Co., 8 F.3d 953, 956 (3d Cir. 1993)). Therefore, Merritts was not

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deprived of due process solely because a state court decided the eminent-domain issues in
his case. 5
In sum, the Court finds that Merritts does not plausibly state a ground for
reconsideration based on his pleadings, Burford, and his due-process arguments.
Accordingly, the Motion is DENIED in these respects.

D.

Merritts Did Not Have a Proper Basis for Removal, and Even if He Did,
the Court Still Must Remand Because It Lacks Subject-Matter
Jurisdiction Under Rooker-Feldman and Burford

Finally, Merritts argues that "removal was proper and timely which means that
this court has jurisdiction." (ECF No. 24 at 14.)
Removal is proper on the basis of federal question jurisdiction "only when the face
of a properly pleaded complaint asserts a federal question." Deutsche Bank Nat1 Tr. Co. v.

Harding, 655 F. App'x 113, 114 (3d Cir. 2016) (citing Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987)). "It is not enough that a federal question is or may be raised as a defense.
'[T]he controversy must be disclosed upon the face of the complaint, unaided by the
answer or by the petition for removal.'" Palmer v. Univ. of Med. & Dentistry of N.J., 605 F.
Supp. 2d 624,630 (D.N.J. 2009) (quoting U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383,389
(3d Cir. 2002)).
Here, Merritts firstly argues that he was not put on notice that the case was
removable until PennDOT filed its brief in the Commonwealth Court. (ECF No. 24 at 14.)

Merritts also seems to argue that he did not have an adequate opportunity to be heard in the
lower court. (ECF No. 24 at 12.) But there is no factual foundation for this argument. As
previously discussed, the Blair County Court of Common Pleas held oral argument, an evidentiary
hearing, and accepted briefs on this issue. (See ECF No. 3 at 3.) Moreover, the Commonwealth
Court also held oral argument. (Id. at 5.)

5

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But Merritts does not identify what aspect of PennDOT s brief to the Commonwealth
Court made this case removable.

The only federal question-whether the eminent-

domain proceedings violated the Fourteenth Amendment-appears only in Merritts's
defense to PennDOT s condemnation suit, and not on the face of PennDOT s Complaint.
(ECF No. 3 at 2.) And PennDOTs brief to the Commonwealth Court does not appear to
raise a distinctly federal issue.

Rather, it appears that Merritts raised the federal

constitutional issue in the Commonwealth Court by arguing that PennDOT did not have
the legal authority to condemn his property. 6

(ECF No. 3-3 at 15-18.) Accordingly,

Merritts failed to sustain his burden to establish that the Court possesses subject-matter
jurisdiction over his removal action.
Second,

Merritts

argues

that

"removal

was

proper

because

PennDOT

acknowledged that the taking of the [Merritts' s] property was in connection with federal
funds, law, policy, and regulations, with 80% of the funding for this highway road project
federal funds [sic] being provided by the Federal Highway Administration." (ECF No. 24
at 18.)

But the involvement of federal funds in the highway condemnation is not

addressed in PennDOTs Declaration of Taking (see ECF No. 3-2), and therefore does not
resolve the well-pleaded complaint issue Merritts faces. See Merrell Dow ?harms., Inc. v.

Thompson, 478 U.S. 804, 809 n.6 (1986) (holding that a defendant may not establish
jurisdiction based on a theory not advanced by the plaintiff in his complaint). Moreover,
the involvement of federal funds in a case, by itself, is insufficient to establish federal
The Court bases this statement on the Commonwealth Court's opinion, which states that "[o]n
appeal, Condemnee [Merritts] argues that ... the Commonwealth lacks the legal authority to
exercise eminent domain to condemn Condemnee's property." (See ECF No. 3-3 at 2.) However,
the parties' briefs to the Commonwealth Court are not part of the record in this Court.

6

-16-

question jurisdiction.

See Virgin Islands Housing Auth. v. Coastal Gen. Constr. Servs. Corp.,

27 F.3d 911, 917 (3d Cir. 1994) ("Even if Coastal's complaint contained assertions
respecting the use of federal funds in the construction project and the adoption of
contractual forms authorized by HUD, federal question jurisdiction still would not be
established.").
But even if removal here was proper, the Court would still refuse to hear the case
because Rooker-Feldman and Burford apply. Rooker-Feldman bars federal-court jurisdiction
whenever a state court has already heard an issue, regardless of whether the case could
have been properly removed in the first place. See Great W. Mining & Mineral Co., 615 F.3d
at 159-63.

And Burford allows district courts to decline to hear a case even where

jurisdiction would otherwise be proper. See, e.g., Rucci, 130 F. App'x at 577.
Accordingly, the Court again finds that Merrits' s removal to this Court was
improper. The Court further concludes that even if removal was proper, it would still not
hear the case because of Rooker-Felman and Burford. Therefore, the fourth argument in
Merritts's Motion is unconvincing, and his Motion is DENIED in that respect.

E.

Conclusion

For the reasons stated above, the Court reaffirms that it lacks subject-matter
jurisdiction over this case. Accordingly, Merritts's Motion for Reconsideration (ECF No.
24) is DENIED.
An appropriate order follows.

-17-

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
IN RE: CONDEMNATION BY THE
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, OF RIGHT-OFWAY FOR STATE ROUTE 0022,
SECTION 034, IN THE TOWNSHIP OF
FRANKSTOWN

)
)
)
)
)
)
)

Case No. 3:18-cv-57

)

JUDGE KIM R. GIBSON

)

~
AND NOW, this

2-9

ORDER

day of October, 2018, upon consideration of the Motion to

for Reconsideration (ECF No. 24), and in accordance with the accompanying
Memorandum Opinion, IT IS HEREBY ORDERED that the Motion is DENIED.

BY THE COURT:

\

KIM R. GIBSON
UNITED ST A TES DISTRICT JUDGE