(concurring).
In my view the record in this case is insufficient to warrant the granting of the motions to dismiss and for summary judgments despite the amplification created by the stipulation referred to in note 1 of the plurality opinion, assuming that the information contained therein is properly before this court. Moreover, I am unable to perceive the validity of the defense of res judicata referred to in the dissenting opinion. I cannot be certain in the light of the present record as to what are the rights of the parties. For these reasons I concur in the result reached by the plurality opinion.
FREEDMAN, J., joins in this concurrence.
SMITH, Circuit Judge(dissenting).
This is a civil action in which the plaintiffs seek a judgment declaratory of their alleged right to relocation payments under the Slum Clearance and Urban Renewal Act as amended, 42 U.S.C. §§ 1441 and 1462, 1958 Ed. However, we are not now concerned with the substantive right of the plaintiffs; we are concerned only with their right to maintain this action and the jurisdiction of the court below to entertain it. We are of the opinion that the action may be maintained, if at all, only against the Urban Redevelopment Authority of Pittsburgh, a municipal agency, hereinafter identified as the Authority. The plaintiffs have no right of action against the Administrator of the Housing and Home Finance Agency of the United States. The court below was without jurisdiction to entertain the action against the Authority.
The pertinent provisions of the said Act authorized the Administrator, upon his approval of an appropriate project, to make a grant of federal funds to a local political division, or an agency thereof, in aid of slum clearance and urban renewal. 42 U.S.C. §§ 1452 and 1453. The Administrator, in the exercise of his discretion, was empowered to include in the grant an amount sufficient to meet “relocation payments,” 42 U.S.C. § 1456(f) (1), as defined in subdivision (2). Such payments were therein defined as “payments by a Local Public Agency * * * to individuals, families, and business concerns for their reasonable and necessary moving expenses * * * resulting from their displacement by an urban renewal project * *” (Emphasis supplied). The statute required that the grant, including any provision for the payment of relocation costs, be made the subject of a written contract between the Administrator and the local agency.
Where the contract of grant provided for the making of relocation costs to persons or business concerns displaced as the result of a renewal project, the local agency was vested with full authority to establish and administer a program of payments. 24 C.F.R. §§ 3.100-3.110. As a necessary incident to this administrative authority the local agency was empowered and required to determine the conditions of eligibility under which such payments were to be made, subject only to the restrictive limitations imposed by the Act and the regulations promulgated thereunder. Ibid. All relocation payments “made in accordance with [the] regulations and pursuant to a capital grant contract [were] reimbursable in full to the” local agency “as a * * * grant.” 24 C.F.R. § 3.106(b). It seems reasonably clear that under a grant contract, of which the regulations are an integral part, the Administrator would be liable to the local agency to the full extent of his contractual commitment.
It is conceded by the Administrator and the Authority that the grant contract in the instant case contains a provision for the making of relocation payments as authorized by 42 U.S.C. § 1456(f) (1), (2) and the regulations. See footnote 4 in majority opinion. The failure or refusal of the Administrator to reimburse the Authority for reloca*997tion payments made by it in accordance with the regulations and pursuant to their contract would undoubtedly give rise to a right of action in favor of the Authority. However, it does not follow that a displaced business concern would have a right of action against the Administrator based upon the failure or refusal of the Authority to make relocation payments. Such a business concern may have a right of action against the Authority but absent diversity of citizenship or a federal question, and in this ease we have neither, the action could not be maintained in the federal district court. We find nothing in the Act which gives to a displaced business concern a right of action against the Administrator.
It appears from the undisputed facts that the Authority initiated a condemnation proceeding in the Court of Common Pleas in Allegheny County. Therein the present plaintiffs, joined as respondents, asserted two claims: one which included a claim for the expenses incurred in moving that portion of the business which had been located in a building within the renewal area and another which included a claim for the expenses incurred in moving that portion of the business located in a building outside the renewal area. The former was allowed and the latter was disallowed, and judgment was entered accordingly. The majority concludes that under these facts the plaintiffs “had no remedy in the state courts under state law.” This conclusion seems to us erroneous.
We agree with the majority that under the law of Pennsylvania, as under the law of many states, removal costs are not recoverable as an element of damage in an eminent domain proceeding. This is true because in such a proceeding the measure of damages is ordinarily the market value of the property taken together with reasonable compensation for the consequential damage to that portion of the property remaining in the possession of the owner. However, it does not follow that removal costs may not be recovered in an independent action if their payment is authorized by statute.
The Authority was organized as a municipal agency under the “Urban Redevelopment Law” of Pennsylvania, 35 P.S. §§ 1701-1747. Section 1709 empowers the Authority, among other things, to acquire “real or personal property or any interest therein” by purchase, eminent domain or otherwise. Subdivision (1) of the said section empowers the Authority to “reimburse for their reasonable expenses of removal, the occupants of a development area who have been displaced as a result of the redevelopment.” This provision, construed as consistent with the federal Act, would appear to authorize the payment of relocation costs by the Authority where, as here, the grant contract contained a provision for their payment. Any payments made in accordance with the federal regulations, supra, and pursuant to the grant contract would be reimbursable to the Authority as hereinabove noted.
Section 1716 of the Urban Redevelopment Law, supra, is relevant and reads in pertinent part as follows:
“An obligee of an Authority shall have the right, in addition to all other rights which may be conferred on such obligee, subject only to any contractual restrictions binding upon such obligee:
“(a) By mandamus,' suit, action or proceeding at law or in equity to compel the Authority and the members, officers, agents or employees thereof to perform each and every term, provision and covenant contained in any contract of the Authority with or for the benefit of such obligee, and to require the carrying out of any or all such covenants and agreements of the Authority, and the fulfillment of all duties imposed upon the Authority by this act;” (Emphasis supplied).
The remedies available under the quoted section are clearly in addition to any other remedies “an obligee of the Authority” may have under the eminent *998domain laws. If, as it is here contended, relocation payments were arbitrarily and capriciously denied, in violation of the applicable regulations and the contract grant, the plaintiff’s right of action is against the Authority and not against the Administrator.
However, we have here a situation in which the statutory remedy is no longer available to the plaintiffs. Although not required to do so, they elected to assert their disputed claim for relocation costs in the eminent domain proceeding brought by the Authority in a State court of competent jurisdiction. The issues raised by this claim were resolved against them and judgment was entered accordingly. This judgment is not subject to collateral attack by the plaintiffs in a declaratory judgment action.
HASTIE, J., joins in this dissenting opinion.