Concurring Opinion by
Mr. Justice Roberts:While I am in agreement that plaintiff’s attempt to invoke the jurisdiction of equity was properly dismissed by the court below, I reach that conclusion on a different basis than the majority and, thus, am compelled to concur in the result.
The record in the instant case discloses that no declaration of taking has been filed by the defendant-township. All that has occurred to date have been negotiations between the parties respecting the sale of the property in question to the defendant-township and a public expression by the latter of an intention to *231resort to condemnation in the event that a sale cannot be effected.
Thus, plaintiff is really complaining about the fact that defendant is considering condemnation, claiming that this in itself is sufficient to cause a present dislocation of its business. In my view, no present injury has been sustained by plaintiff and he may not anticipate the township and seek to litigate the validity of a taking which has not yet taken place. Therefore, the present suit is premature and plaintiff has no ground for invoking the jurisdiction of equity at this juncture. Accordingly, the suit was properly dismissed by the court below.
However, in light of the majority’s discussion of the issue of possession under the Code, I feel compelled to add a few observations regarding the matter.
As I read the Eminent Domain Code, the issue of possession has been resolved in favor of permitting the condemnor, once the declaration of taking has been filed and the provisions respecting pro tanto payment of compensation complied with, to claim immediate possession. Act of June 22, 1964, P. L. 84, §407, 26 P.S. §1-407 (Supp. 1965). Yet, I see no provision in the Code which would afford the condemnee redress for-damages sustained by reason of the loss of possession if the latter challenges the validity of the taking and prevails. Cf. Act of June 22, 1964, P. L. 84, §408, 26 P.S. §1-408 (Supp. 1965) (voluntary revocation). In my view, the failure of the Code to provide redress for loss of possession in the event the condemnee successfully resists condemnation would render that provision of the Code entitling the condemnor to immediate possession unconstitutional. I am unable to construe the Code to have intended such a result.
In order, therefore, to avoid the problem, I would construe the Code to preclude the assertion of the right of possession by the condemnor pending disposition of *232preliminary objections which challenge the validity of the condemnation. I would permit the objections to be filed immediately upon the filing of a declaration of taking and would require that the court prohibit any further action on the part of the condemnor which affects the condemnee’s untrammelled right to possession until the preliminary objections, and the challenge to the validity of the taking, have been adjudicated.
Mr. Justice Jones and Mr. Justice Eagen join in this concurring opinion.