Dissenting Opinion by
Judge Mencer :I respectfully dissent. On September 5, 1967, the Pennsylvania Game Commission filed a declaration of taking under the Eminent Domain Code of 1964,1 describing as the interest taken the surface rights only to appellants’ three adjacent tracts of land located in Washington Township, Butler County, Pennsylvania. Appellants, as condemnees, thereupon filed, in the Court of Common Pleas of Butler County, preliminary objections to the declaration of taking. One objection challenged the authority of the condemnor to acquire the land because of’ an alleged failure to comply with the standards for acquisition under' the Project 70 Land Acquisition and Borrowing Act.2
Article IV of the Eminent Domain Code3 deals with the procedure to condemn. Section 406 thereof provides that preliminary objections shall be the exclusive method of challenging, the power or the right to condemn, or the declaration of taking, and Section 406(e), 26 P.S. §1-406, specifically provides that “[t]hecourt [of common pleas] shall determine promptly all pre*566liminary objections and make such preliminary and final orders and decrees as justice shall 1‘equire . . .”.
My dissent is simple but basic. The Court of Common Pleas of Butler County, contrary to the mandate of Section 406(e), has never determined, promptly or otherwise, the preliminary objection most vital to the proceeding, an objection which challenged the power or right of the condemnor to appropriate the property.
The declaration of taking in the present cases stated that the power to condemn was by virtue of the provisions of the Project 70 Land Acquisition and Borrowing Act. This Act laid down certain requirements under which land could be acquired. No. 6 of the preliminary objections filed to the initial declaration of taking challenged the condemnor’s compliance with these requirements. As yet, no court has ruled upon this all important objection. The majority states that “[ajppellants find it difficult to accept what appears to them to be an unjust decision, or indeed the absence of a decision on an important point, and it is a compliment to the tenacity and ingenuity of their able counsel that he has been able to continue to raise the question, albeit unsuccessfully”. I, likewise, find it difficult to accept the absence of a decision on such an important point as the power or right of the condemnor to appropriate the condemnee’s property. This is the most basic question that could be raised in this proceeding and yet it never has been passed upon by any court.
The majority concludes that the propriety of the taking here was settled by Commonwealth v. Hilliard, 433 Pa. 599, 249 A. 2d 536 (1969). The Per Curiam Opinion of the Supreme Court merely stated, “Order affirmed”. What order and what did it rule upon? The answer is that it was the lower court’s order of April 30, 1968, which was as follows: “And Now, April *56730, 1968, the preliminary objections to the amended declaration of taking filed April 4, 1968 and the preliminary objections nunc pro tunc filed April 17, 1968 are dismissed. Such being the case the preliminary objections to the preliminary objections filed April 17, 1968 and the motion to strike filed April 24, 1968 are dismissed.”
It appears to me that the Supreme Court affirmed Per Curiam in Commonwealth v. Hilliard, supra, the lower court’s dismissal of preliminary objections filed in April 1968 to an amended declaration of taking. I fail to see how that disposes of preliminary objections filed on November 21, 1967 to the initial declaration of taking.
The majority does not conclude that the lower court’s order of February 13, 1968 ruled upon No. 6 of appellants’ preliminary objections, being the objection challenging the condemnor’s power to appropriate, since an examination of that order discloses that the court sustained one objection, rejected another and was silent upon the remaining objections, including the vital objection numbered “6”. If the majority had concluded that it was the lower court’s order of February 13, 1968 that passed upon the objection to the propriety of the taking, rather than the Per Curiam decision by the Supreme Court in Commonwealth v. Hilliard, supra, I would still have been troubled in this case, since I am satisfied that the lower court did not rule upon objection No. 6 in its order of February 13, 1968. My point, however, is that the Supreme Court only affirmed the lower court’s order of April 30, 1968, which dismissed preliminary objections filed in April 1968 to an amended declaration of taking and had nothing to do with, or any effect upon, earlier preliminary objections timely filed but not ruled upon. Since the issues were not the same, I do not believe res judicata is applicable.
*568The majority cites Hilliard v. Commonwealth of Pennsylvania, 308 F. Supp. 756 (W.D. Pa. 1970), for the proposition that the District Court concluded that the decision of the Supreme Court in Commonwealth v. Hilliard, supra, was res judicata on the question of the propriety of the taking. I do not so read that case. The plaintiffs there, appellants here, raised three federal constitutional questions (page 760) :
“1. Whether the taking of plaintiffs’ properties by the Game Commission with the intention, among others, to lease or contract out portions thereof to private sharecroppers, constitutes an unconstitutional taking for private use.
“2. Whether the Game Commission’s taking of plaintiffs’ entire properties in fee rather than lesser portions thereof was an abuse of discretion and in bad faith.
“3. Whether the lower State Court has denied plaintiffs due process of law by denying them a hearing upon federal constitutional questions on the ground that, by procedural default, plaintiffs waived the opportunity to raise those questions.”
The Court, at page 760, concluded relative to these constitutional questions as follows: “While I have thus concluded that plaintiffs have presented a substantial federal question conferring subject matter jurisdiction on this Court, nevertheless, I must find that the prior adjudication in the State eminent domain proceeding, as affirmed on appeal to the Supreme Court of Pennsylvania, forecloses plaintiffs from litigating herein each and every constitutional question raised. The doctrine of res judicata so requires.”
Thus it was held only that Commonwealth v. Hilliard, supra, was res judicata to the federal constitutional questions raised in Hilliard v. Commonwealth of Pennsylvania, supra, but I believe this is not the same *569as concluding that Commonwealth v. Hilliard, supra, was res judicata as to an objection raised, never ruled upon, and not before the Supreme Court of Pennsylvania when it affirmed without opinion the lower court’s order of April 30, 1968, dismissing other preliminary objections.
My difference with the majority centers on what the Per Curiam order of the Supreme Court in Commonwealth v. Hilliard, supra, accomplished. The majority states that the Court held that “it was too late to raise the issue of the propriety of the taking, at least it is quite clear that that was its decision and, therefore, it is res judicata between the parties in this case”. I offer that the Supreme Court held that the lower court was correct in not permitting appellants to file additional preliminary objections to the amended declaration of taking and that its Per Curiam affirmance goes no further than the lower court’s order of April 30, 1968, which was the subject of the affirmance.
Thus, I also find it difficult to accept the absence of a ruling upon the vital question as to whether the condemnor has the power or right to condemn. I would reverse and remand to the lower court to rule upon the •preliminary objections filed to the initial declaration of taking which have yet to be decided.
Judge Crumlish joins in this dissent.Act of June 22, 1964, P. L. 84, 26 P.S. §1-101 et seq.
Act of June 22, 1964, P. D. 131, No. 8, 72 P.S. §3946.1 et seq.
Act of June 22, 1964, P. D. 84, 26 P.S. §§1-401 to 1-410.