               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Condemnation by the Mercer Area           :
School District of Mercer County          :
for Acquisition of Land for               :
School Purposes in the Borough of         :
Mercer, Being the Lands of                :    No. 448 C.D. 2019
Kevin and Doreen Wright and               :
Glenn and Edith Krofcheck                 :    Submitted: November 27, 2019
                                          :
Appeal of: Mercer Area School             :
District                                  :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ELLEN CEISLER, Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                         FILED: April 15, 2020


             Mercer Area School District (District) appeals from the March 22, 2019
order of the Court of Common Pleas of Mercer County (trial court) sustaining the
preliminary objections of Kevin and Doreen Wright, husband and wife, and Glenn and
Edith Krofcheck, husband and wife (collectively, Landowners), and dismissing the
District’s declaration of taking, with prejudice, based upon the doctrine of res judicata.
We affirm.
             By way of background, this appeal involves the third declaration of taking
that the District has filed seeking to condemn property owned by Landowners to
expand an access road to a school and improve its facilities. This appeal also marks
the third time that this case has come before this Court. See In re Condemnation by
Mercer Area School District (Pa. Cmwlth., No. 58 C.D. 2016, December 15, 2016)
(unreported) (“Mercer II”); In re Condemnation by Mercer Area School District (Pa.
Cmwlth., No. 2269 C.D. 2012, filed March 17, 2014) (unreported) (“Mercer I”).
             In the first action, the District filed a declaration of taking on October 14,
2010, pursuant to a September 20, 2010 resolution authorizing the taking of a .52-acre
lot owned by Landowners. According to the resolution passed by the District’s board
members (School Board), the purpose of the taking was to expand the District’s
driveways for its educational programs and to improve emergency ingress and egress
from the District’s property. By opinion and order dated December 7, 2011, the trial
court granted Landowners’ preliminary objections, determining that the District’s
proposed taking was excessive, done in bad faith, and constituted an abuse of
discretion. In so concluding, the trial court emphasized that the School Board failed to
conduct basic due diligence. As this Court recounted in Mercer I,

             [t]he trial court concluded that the District abused its
             discretion in “moving too quickly and without adequate
             preparation when voting” to pass the resolution authorizing
             the taking. Specifically, the trial court found that the [School
             Board] did not review any plans, drawings, or maps prior to
             the vote; failed to consult an expert, such as an engineer or
             the Department of Transportation (DOT), to determine where
             the access road should be located on the property; and did not
             conduct an investigation to determine how much land was
             needed for the emergency access. In addition, the trial court
             found that there were no tangible plans to indicate how the
             land would be used within a reasonable time; explain how
             the District would acquire an easement to connect adjacent
             streets; or demonstrate how the District would obtain the
             legal rights to a 25-foot driveway owned by Landowners that
             was necessary to complete the access road, but was not listed
             for condemnation in either the resolution or the declaration.
             Finally, the trial court found that the [School Board] lacked


                                            2
                 an “informed perception” because [it] did not express any
                 questions or concerns prior to the vote and were unable to
                 identify on a map the property [it] had just voted to take;
                 rather, the [School Board’s] decision was based solely on the
                 recommendation of the District’s Superintendent and
                 Solicitor who advised that there was nothing illegal about
                 taking the property.
Mercer I, slip op. at 2-3 (internal citations omitted).
                 However, in footnote 13 of its opinion, the trial court provided the District
with detailed advice on how to cure these deficiencies in the event the District would
seek to develop and/or condemn the property in the future.1
                 Thereafter, the District did not appeal to this Court, but instead,
commenced a second action by filing another declaration of taking on May 2, 2012.
This declaration was filed pursuant to a new resolution adopted on February 27, 2012,
by the School Board and sought to condemn a lot located in a subdivision, together
with a strip of land and a driveway, totaling approximately 1.83 acres. As in the first
action, Landowners were the owners of this property. According to the resolution and
declaration of taking, the purpose of the taking was “to acquire property for emergency

       1
           In its entirety, this footnote stated:

                 It is clear that upon reading the depositions, each was relying on
                 someone else’s work to assess whether the requirements for
                 condemnation had been met. It is clear to this [c]ourt, however, that
                 the requirements for condemnation have not been met. It is the
                 suggestion of the [c]ourt that if the [District] still desires to develop the
                 [property, the District] do the following: conduct a cost-benefit analysis
                 of the proposed project, consult with an engineer or [DOT] to more
                 accurately estimate how much land would be needed for the project,
                 estimate the width of the new road, plan where the driveway will be
                 located on the lot, estimate the cost of clearing the land, [and] pursue a
                 right-of-way and/or easement . . . before condemning the subject
                 property, etc. These suggestions are intended to serve as a guide and
                 are not an exhaustive list of requirements.
Mercer I, slip op. at 3 (internal citation and emphasis omitted).


                                                      3
and/or improved access and egress to current District-owned property, and for the
expansion of the District’s current parking facilities.” Mercer I, slip op. at 4. In turn,
Landowners filed preliminary objections, asserting, among other things, that the
District’s second attempt to condemn their property was barred by res judicata. In
response, the District argued that res judicata did not apply because it cured all of the
defects outlined in the trial court’s December 7, 2011 opinion. By order dated
December 4, 2012, the trial court sustained Landowners’ preliminary objections on the
ground of res judicata and struck the declaration of taking. Thereafter, the District
appealed to this Court.
                In Mercer I, the District contended that res judicata was inapplicable
because footnote 13 of the trial court’s December 7, 2011 opinion implicitly recognized
that the District had a right to file a second declaration and effectively granted it
permission to do so. In addressing this argument, this Court explained that “even if all
the elements of res judicata are met, res judicata will not prohibit a second action where
a trial court’s order or opinion dismissing the first action indicates the court’s intent to
permit the plaintiff to bring a second action.” Mercer I, slip op. at 6. We concluded
that the trial court’s footnote adequately reserved to the District the right to file a second
action because it provided the District with detailed guidance and instructions in order
to institute a second action.2 Therefore, we reversed the trial court’s order striking the
declaration of taking and remanded to the trial court for further proceedings.

       2
           We explained:

                Here, the trial court in the first action found that the [School Board]
                abused [its] discretion and failed to make an informed decision when
                [it] passed the September 20, 2010 resolution authorizing the taking of
                Landowners’ property. Footnote 13 of the trial court’s December 7,
                2011 opinion reflects the court’s intention to permit the District to file



                                                    4
                  On remand, the trial court held an evidentiary hearing on Landowners’
outstanding preliminary objections. By opinion and order dated December 16, 2015,
the trial court sustained one of Landowners’ preliminary objections and struck the
declaration of taking. More specifically, the trial court concluded (very similar to the
conclusion that it reached in Mercer I) that the District acted in bad faith in failing to
properly investigate and make an informed decision regarding the taking of
Landowners’ property to construct a roadway to the school grounds and a parking lot.
See Reproduced Record (R.R.) at 574a-99a.3 Notably, the trial court arrived at its


                  another declaration of taking when the defects were cured.
                  Specifically, the trial court’s intention is made clear by the language
                  contained in the footnote, which is expressed through a conditional,
                  correlative conjunction; i.e., if the District wants or “desires” to file
                  another eminent domain action, then it must/should do the following
                  … “before condemning the subject property.” The District’s right to
                  commence a second eminent domain action is an absolute and
                  necessary predicate to this conjunction. Therefore, by its very
                  language, footnote 13 adequately reserved to the District the right to
                  file a second condemnation action.
Mercer I, slip op. at 8 (emphasis in original).


       3
           The trial court’s summation of its legal conclusion was as follows:

                  In summary, the School Board did not make a properly informed
                  decision because it did not allow an adequate amount of time to
                  complete a thorough investigation, did not consider any alternative
                  sites, did not conduct a sufficient cost/benefit analysis of this proposal
                  let alone any other alternative sites, and did not have a well thought out
                  and clear plan, as evidenced by the [Americans with Disabilities Act of
                  1990 (ADA), 42 U.S.C. §§12101-12213,] violations in the proposed
                  design, the lack of a study to determine the amount of parking spaces
                  needed, if any, and the inadequacy of the Right of Way Agreement with
                  [a third party]. Therefore, this preliminary objection will be
                  GRANTED as to the abuse of discretion and bad faith allegation.
(R.R. at 597a.)


                                                      5
conclusion despite the District’s purported attempts to cure the deficiencies that the
trial court had previously outlined and detailed in the prior proceeding.
             The District then appealed to this Court. Ultimately, in Mercer II, this
Court affirmed the trial court “[b]ecause the District waived all of its issues on appeal
by filing an untimely statement of errors pursuant to Pennsylvania Rules of Appellate
Procedure (Pa.R.A.P.) 1925(b).” Mercer II, slip op. at 8. Our decision in Mercer II
was filed on December 15, 2016. Subsequently, this Court denied the School District’s
motion for reargument/reconsideration on February 6, 2017, and our Supreme Court
denied allowance of appeal on August 13, 2017.
             Less than seven months later, on March 2, 2018, the School District filed
its third declaration of taking following a resolution adopted on February 26, 2018, by
the School Board. Nearly identical to the previous resolutions, the stated purpose of
the proposed condemnation was to lengthen and expand a dead-end road to improve
emergency ingress and egress from school property and to build a parking lot. The
District’s declaration was also extremely similar to the second one that it filed.
Specifically, the District sought to condemn a lot located in a subdivision, together with
a strip of land and a driveway, and the total amount of Landowners’ land that the
District desired to condemn was approximately the same amount of land that was
designated for condemnation in the second declaration.
             In an order and opinion dated March 22, 2019, the trial court granted
Landowners’ preliminary objections based solely on the doctrine of res judicata and
dismissed the declaration of taking with prejudice. In doing so, the trial court stated:

             Here, all the elements of res judicata are satisfied. The third
             [d]eclaration of [t]aking . . . seeks to condemn the exact same
             property it attempted to take previously. The instant and
             prior actions are both condemnation cases. The parties
             named in these cases are the same and the [s]econd


                                            6
               declaration of [t]aking was disposed of through a final order
               entered after a hearing on the merits.
(Trial court order, 3/22/2019, at 5). After the District filed its Pa.R.A.P. 1925(b)
statement, the trial court issued its Pa.R.A.P. 1925(a) opinion, wherein it further
explained the thrust of its decision as follows: “Essentially this [c]ourt found that [the
District’s] third declaration of taking was a contrived attempt to overcome its loss of
the appeal [in Mercer II] on the second declaration of taking.” (R.R. at 1091a.)
               On appeal to this Court,4 the District contends that the trial court erred in
concluding that res judicata barred its third declaration of taking.
               “Under the doctrine of technical res judicata, often referred to as claim
preclusion, when a final judgment on the merits exists, a future suit between the parties
on the same cause of action is precluded.” Weney v. Workers’ Compensation Appeal
Board (Mac Sprinkler Systems, Inc.), 960 A.2d 949, 954 (Pa. Cmwlth. 2008). In order
for technical res judicata to apply, there must be: “(1) identity of the thing sued upon
or for; (2) identity of the cause of action; (3) identity of the persons and parties to the
action; and (4) identity of the quality or capacity of the parties suing or sued.”
Northwestern Lehigh School District v. Agricultural Lands Condemnation Approval
Board, 578 A.2d 614, 617 (Pa. Cmwlth. 1990). An exception to res judicata exists
where there is a material change of circumstances from the first proceeding to the
second proceeding. Id. at 616-17 & n.4.
               Importantly, the District does not contest the trial court’s conclusion that,
based on the prior declarations of taking and the proceedings that accompanied them,
all of the elements necessary for res judicata to apply to the present declaration of

       4
          In an eminent domain proceeding where a court of common pleas has sustained preliminary
objections to a declaration of taking, this Court’s scope of review is limited to determining whether
the trial court abused its discretion or committed an error of law, or whether the findings and
conclusions are supported by substantial evidence. Condemnation by Valley Rural Electric
Cooperative, Inc. v. Shanholtzer, 982 A.2d 566, 570 n.4 (Pa. Cmwlth. 2009).


                                                 7
taking were satisfied. The District also does not contend that our decision in Mercer II
did not result in a valid, final, and binding judgment on the merits between the parties,
namely one that is entitled to the preclusive effect that the law typically affords to a
final judgment.5
                Rather, the District asserts that, as a matter of substantive law for
proceedings instituted under the Eminent Domain Code (the Code),6 res judicata is a
legal doctrine that applies only in the situation where there has been a final ruling on
the merits that specifically encompassed a legal conclusion that the condemnor does
not possess the right and authority to exercise the power of eminent domain. According
to the District, res judicata cannot be employed in the situation where a declaration of
taking is filed after a court of common pleas sustained a preliminary objection and
dismissed a prior declaration of taking because it was “procedurally insufficient due to
bad faith or an abuse of discretion.” (District’s Br. at 22.)
                In the alternative, the District asserts that the “changed circumstances”
exception to res judicata is applicable. In this regard, the District argues that its present
declaration of taking is not barred by res judicata because it took actions to cure the
deficiencies that the trial court previously identified in the prior opinions, e.g., failure
to complete a thorough investigation, failure to consider any alternative sites, and
failure to conduct a study to determine the amount of property needed. The District



       5
         Nor could the District seriously advance such an argument. For purposes of res judicata, it
does not matter that this Court affirmed the trial court in Mercer II on the ground of waiver, for failure
to preserve any issues on appeal results in the order below “becoming res judicata on the issue[s]
decided therein,” Gardner v. Consolidated Rail Corp., 100 A.3d 280, 283 (Pa. Super. 2014), and,
also, any and all “issues that could have been litigated in the first suit but were not.” Day v.
Volkswagenwerk Aktiengesellschaft, 464 A.2d 1313, 1316 (Pa. Super. 1983).

       6
           26 Pa.C.S. §§101-1106.


                                                    8
argues that its corrective measures, in essence, gave rise to a new and distinct claim or
cause of action under the Code.
             We disagree.      Generally, in the absence of legislation indicating
otherwise, the common law doctrine of res judicata operates to bar a condemnor from
filing successive eminent domain actions. As one treatise explained:

             The principles of res judicata apply to final orders,
             judgments, and decrees in condemnation proceedings as to
             matters therein litigated. In accordance with the rules
             governing the application of the doctrine of res judicata to
             judgments generally with respect to matters concluded
             thereby, parties and their privies are concluded as to all
             matters that were put in issue, or might have been put in
             issue, or were necessarily implied in the decision, in the
             condemnation proceedings. This includes all non-value
             issues in the condemnation proceeding, such matters as
             the right to condemn, and the legality of the improvement for
             which the property was taken, and the necessity, quantity,
             or nature of the property required or taken. It also
             includes such matters as the sufficiency of the
             description, the ownership and condition of the title, the
             benefits to land not taken, damage to landowner’s
             neighboring property, and the amount and items of
             compensation.

             However, the judgment or award is not conclusive as to
             matters that were not in issue or within the scope of the
             issues, where a subsequent action involves a different
             question, or the operative facts underlying the
             condemnation petition and a subsequent petition are
             different, or as to matters that have not been determined
             in the prior proceeding, or matters that the court or other
             tribunal does not have the jurisdiction to decide.
29A Corpus Juris Secundum, Eminent Domain (Corpus Juris) §517 (2013) (emphasis
added) (footnotes and corresponding citations omitted).
             Consistent with this general rule, in Northwestern Lehigh School District,
the landowners owned a tract of farm land (property) that was designated as an

                                           9
agricultural security area under the Agricultural Area Security Law (Law).7 The
property was adjacent to the school district’s main campus, and the district petitioned
the Agricultural Lands Condemnation Approval Board (Board) for approval to
condemn the property for the construction of a middle school. The Board denied the
district’s proposed condemnation, concluding that the district’s evidence was
insufficient to meet its burden of showing that no reasonable alternative existed. The
district appealed, and this Court affirmed.
               Thereafter, the district filed a second petition with the Board, seeking
approval to condemn the same property. The landowners filed an objection asserting
res judicata, and the Board granted the objection and dismissed the district’s petition.
In its second appeal to this Court, the district argued that res judicata was inapplicable
because its second petition was based on a different theory, changed circumstances,
and evidence that was not presented in support of its first petition. Specifically, the
district contended that it intended to introduce at the second hearing a study of
alternative sites, which the district believed would satisfy the standard that it failed to
fulfill in the first proceeding. The district also argued that it did not have enough time
to prepare properly for its first petition to the Board and that it had a continuing need
to acquire the property to build a middle school.
               In Northwestern Lehigh School District, this Court rejected the district’s
arguments and concluded that res judicata prohibited the district from filing a second
petition seeking approval to condemn the same property. We reasoned as follows:

               Clearly, the burden was on the [district] to provide
               evidence of alternative sites to the Board. The [district]
               chose not to avail [itself] of the opportunity to present
               such evidence at the first hearing. Therefore, we hold the
               Board committed no error in concluding that the

      7
          Act of June 30, 1981, P.L. 128, as amended, 3 P.S. §§901-915.


                                                10
             [district’s] failure to present evidence which could have
             been presented in the earlier proceeding was not a basis
             for an exception to the doctrine of res judicata.

                                      *      *      *

             [T]he [district’s] argument that it did not have sufficient time
             to prepare for the hearing has no merit, since it chose the date
             on which to request the Board hearing. Therefore, any time
             constraint that it experienced was a result of its own doing.

                                      *      *      *

             The persons, parties and the thing being sued for in this
             action are all identical to those in the first action. The
             [district] is now seeking to condemn the identical parcel
             of land which it sought to condemn [in the first action].
             Additionally, the purpose for the condemnation has not
             changed. Finally, there has been no change in the quality
             or capacity of the parties suing or being sued. Clearly, all
             four elements of res judicata were satisfied here. Therefore,
             we hold, as a matter of law, the Board properly dismissed
             the [district’s] second petition on that basis.

Northwestern Lehigh School District, 578 A.2d at 616-17 (emphasis added).
             Akin to the district’s opportunity and inability in Northwestern Lehigh
School District to prove in the first action that no reasonable alternative existed to the
condemnation, the District in this case had sufficient opportunity to conduct its due
diligence and demonstrate that its decision to condemn the property was not excessive
and was not the byproduct of bad faith or an abuse of discretion. Further, as in
Northwestern Lehigh School District, there is no material change of circumstances
present in this case that are sufficient to avoid application of res judicata.
             Notably, the District does not cite any authority for the proposition that
res judicata applies only where the first action was dismissed on the ground that the
condemnor did not possess the power or right to condemn property under section


                                            11
306(a)(3)(i) of the Code.8, 9 In any event, the district’s first attempt and failure to obtain
authority for condemnation in Northwestern Lehigh School District concerned
administrative approval and procedural matters, which prelude the district’s actual
exercise of its power or right to condemn. See 26 Pa.C.S. §207(a) (“Notwithstanding
any provision of law to the contrary, approval by the [Agricultural Lands
Condemnation Approval Board] shall be required prior to the exercise of eminent
domain authority by any agency . . . . Approval shall be obtained in accordance with
[the Law].”). Likewise, here, the District’s exercise of deficient due diligence when
determining to condemn Landowners’ property in the first and second actions involved
a process and procedure that were precursors to the District’s actual exercise of its
power or right to condemn. See Westrick v. Approval of Bond of the Peoples Natural
Gas Company, 520 A.2d 963, 965-66 (Pa. Cmwlth. 1987) (“Condemnation
presupposes considered judgment and the exercise of discretion prior to formal action
by a condemnor . . . . Administrative decisions of a condemnor [concern] the amount,
location, or type of estate condemned[.]”). Contrary to the District’s argument,
Northwestern Lehigh School District expressly applied res judicata to situations that
did not involve a prior adjudication of a condemnor’s right or power to condemn, and
our holding in that case specifically encompassed prefatory, procedural mishaps like
those committed by the District in the first and second actions. In addition, Section
517 of Corpus Juris lends further support to our decision in Northwestern Lehigh

       8
          26 Pa.C.S. §306(a)(3)(i) (stating that preliminary objections may be filed to a declaration of
taking to challenge “[t]he power or right of the condemnor to appropriate the condemned property
unless it has been previously adjudicated”).

       9
         This Court has consistently “held that objections to a condemnor’s ‘power and right’ are
limited to challenging the condemning authority’s grant of power from the legislature through
appropriate enabling statutes.” In re Condemnation of Real Estate by the Borough of Ashland,
Schuylkill County, 851 A.2d 992, 996 (Pa. Cmwlth. 2004).


                                                  12
School District, stating that res judicata is applicable to “all non-value issues in the
condemnation proceeding, [including] such matters as . . . the necessity, quantity, or
nature of the property required or taken [and] such matters as the sufficiency of the
description.” Corpus Juris §517.
             Moreover, the fact that the District attempted to cure its own procedural
flaws and lack of due diligence does not change the circumstances or operative factual
basis underlying the taking so as to justify another attempt at condemnation. This is
especially true considering that the District had tried to correct the deficiencies that the
trial court previously found to have existed; the District’s subsequent attempt to cure
these deficiencies was rejected as factually and legally insufficient by the trial court;
and the trial court’s dismissal of the District’s second declaration based on the District’s
continued inadequacies was affirmed by this Court in Mercer II. Put simply, both
Northwestern Lehigh School District and Corpus Juris state that, in order for there to
be changed circumstances, the circumstances must be material and substantive in
nature, on an objective level, and not simply a failure on the part of the condemnor to
prove that which it could have proved in a prior action.
             Here, the trial court concluded that the District’s second declaration
suffered from many of the same flaws that it previously found tainted the first
declaration. Although the District may have adduced evidence of a better quality and
character in the proceedings regarding the second declaration, when compared to the
proceedings with respect to the first declaration, the evidence was nonetheless
insufficient; that is, two unsuccessful bites at the very same apple. Consequently, in
litigating the second declaration, the District’s continued inability to cure the
deficiencies previously noted by the trial court was due to an evidentiary shortcoming
on its part, and by no means can the failure to adduce sufficient evidence be deemed as



                                            13
a change in the underlying factual basis for—or circumstances giving rise to—a
condemnation.         See Northwestern Lehigh School District, 578 A.2d at 615-16
(concluding that where the first application to condemn property was denied for lack
of evidence demonstrating the absence of a “reasonable alternative,” a second
application based on a new “study of alternative sites” did not represent a material
change of circumstances, but, rather, represented the applicant’s “failure to present
evidence which could have been presented in the earlier proceeding”).
                That said, this Court must acknowledge that the trial court found that the
District’s third declaration merely sought to condemn the same amount of land, from
the same individuals, and for the same purpose as its second declaration. In these
respects, the trial court’s findings are well-supported by the record. Compare R.R. at
430a-55a, with R.R. at 648a-74a. In fact, based on their plain language, the second and
third declarations are virtually duplicative, if not identical, and the second and third
resolutions authorizing the takings are mirror images of each other. See R.R. at 430a-
55a, 648a-74a. In discussing the changed circumstances exception to res judicata, a
state intermediate appellate court held that changed circumstances were present, and
res judicata did not bar a successive eminent domain action, when: the first declaration
sought to condemn an excessive amount of land; a circuit court dismissed the
declaration on that basis; and the second declaration sought to condemn only half of
the amount of land that was sought in the first action. See City of Chicago v. Midland
Smelting Co., 896 N.E.2d 364, 382 (Ill. App. Ct. 1st Dist. 2008),10 accord Oakes

      10
           In pertinent part, the court stated:

                The first lawsuit against [the landowner] was brought pursuant to a city
                council ordinance which authorized the [c]ity to acquire approximately
                25,000 square feet of land, or all of the [landowner’s property]. After
                that action was dismissed as an excessive taking, the city council passed



                                                  14
Municipal Airport Authority v. Wiese, 265 N.W.2d 697, 701 (N.D. 1978) (“The first
condemnation action [the municipal authority] commenced against [the landowner]
sought 74.1 acres of land, whereas the subsequent condemnation action [sought] to
acquire only 37.93 acres in fee, together with a clear zone easement in 9.18 acres.
Although the second action involves the same land sought in the first condemnation
action against [the landowner], the requested taking is only for approximately one-half
of the acres sought in the first action. This substantial reduction in the acres sought is
a changed circumstance . . . so as to preclude the application of the doctrine of res
judicata from barring the second condemnation action.”). In another case, a state court
of appeals concluded that changed circumstances existed, and did not bar a second
declaration of taking, where the first declaration sought to condemn property for
commercial and business purposes and the second declaration sought to condemn the
property for a public park. See City of Charlotte v. Rousso, 346 S.E.2d 693, 694 (N.C.
Ct. App. 1986).11 However, unlike those cases, in this matter, there is no reduction in

                a new ordinance which authorized the [c]ity to acquire only 12,500
                square feet of land, or approximately half of the [landowner’s property]
                . . . . [A]lthough the two actions involve the same piece of land, the
                requested taking in the second action is only for approximately half of
                the amount of land sought in the first action. Given that the initial
                action was dismissed as an excessive taking, this reduction in the
                amount of land sought is a changed circumstance[.]
    Midland Smelting Co., 896 N.E.2d at 382.

      11
           The court explained:

                [T]his case is not based upon the same facts as the prior case and res
                judicata does not apply . . . . The first proceeding was based upon a plan
                to lease some of the condemned land “to private parties for use in retail
                business” . . . . The basis for this case is different. After the prior action
                was dismissed the [c]ity’s governing body rescinded the resolution that
                it was based upon and adopted a new condemnation resolution . . . . A



                                                     15
the amount of land that the District desired to condemn in the second and third
declarations, and the purposes of the taking, as stated in the second and the third
declarations, remain the same.
               Absent a change in circumstances, it is important to point out that the trial
court found “that [the District’s] third declaration of taking was a contrived attempt to
overcome its loss of the appeal [in Mercer II] on the second declaration of taking.”
(R.R. at 1091a.) Again, this finding has ample support in the record as well as the
factual and procedural history of this case. As one court put it, a “prior unsuccessful
attempt to [condemn] property … should not bar the commencement of a subsequent
action . . . providing the court is satisfied that the subsequent action was brought in
good faith and there has been a change of circumstances such that the action is not
merely an attempt to re[-]litigate identical issues based upon identical factors for
consideration.” Oakes Municipal Airport Authority, 265 N.W.2d at 701. Ultimately,
the record demonstrates that the District filed the third declaration in a bad faith manner
or simply as an attempt to re-litigate identical issues that were decided by the trial court
in prior proceedings.
               Therefore, we conclude the trial court correctly decided that no exception
to the doctrine of res judicata applied, and that the District’s third declaration was


               judgment, even though in an action between the same parties, operates
               as an estoppel only as to the facts in existence when the judgment was
               rendered; it does not bar a re-litigation of the same issue when new
               facts occur that alter the legal rights of the parties in regard to the issue.
               Thus, the judgment in the former action bars the plaintiff [c]ity only
               from condemning defendants’ land for commercial or business
               purposes[]; it does not bar it from condemning the land for the sole
               purpose of using it as a public park. . . . .

Rousso, 346 S.E.2d at 694 (internal citation omitted).



                                                    16
barred pursuant to well-settled principles of claim preclusion.                     In reaching our
conclusion, we do not hold or suggest that the District is forever barred from filing
another declaration in the future. At the same time, this Court expresses no view, and
declines to issue an advisory opinion, as to when, if, or under what circumstances such
a declaration would not be subject to the defense of res judicata.12
               Accordingly, and for the above-stated reasons, we affirm.




                                                   ________________________________
                                                   PATRICIA A. McCULLOUGH, Judge




       12
           The District also asserts that the trial court, in addressing Landowners’ motion for damages,
used language indicating that it had “expressly reserved” to the District the right to file a third
declaration of taking. (District’s Br. at 33.) However, this argument is refuted by the record and
merits no further discussion. In addition, the District contends that the trial court erred in failing to
decide all of Landowners’ preliminary objections at one time. Even if this was an error, it does not
alter our conclusion that the District’s third declaration of taking was barred by res judicata.


                                                  17
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Condemnation by the Mercer Area       :
School District of Mercer County      :
for Acquisition of Land for           :
School Purposes in the Borough of     :
Mercer, Being the Lands of            :    No. 448 C.D. 2019
Kevin and Doreen Wright and           :
Glenn and Edith Krofcheck             :
                                      :
Appeal of: Mercer Area School         :
District                              :


                                    ORDER


            AND NOW, this 15th day of April, 2020, the March 22, 2019 order of
the Court of Common Pleas of Mercer County is hereby affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
