                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-16-2009

Fessler v. Kirk Sauer Comm Dev
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3645




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Recommended Citation
"Fessler v. Kirk Sauer Comm Dev" (2009). 2009 Decisions. Paper 1738.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1738


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CLD-90                                                NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                              No. 08-3645
                              ___________

                JOSEPH A. FESSLER and ANN FESSLER,
                                         Appellants

                                    v.

KIRK SAUER, COMMUNITY DEVELOPMENT OF WILKES-BARRE; RICHARD
 GELHARD, EX-DEPUTY EXECUTIVE DIRECTOR OF THE WILKES-BARRE
   REDEVELOPMENT AUTHORITY; LOUIS ATTORDO, WILKES-BARRE
REDEVELOPMENT AUTHORITY; JOHN G. BRAVACOS, AREA DIRECTOR OF
THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; PAUL CAIN,
  EX-AREA DIRECTOR OF THE DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT; ALPHONSO JACKSON, SECRETARY OF THE DEPARTMENT
   OF HOUSING AND URBAN DEVELOPMENT; AND MARTIN CARLSON,
     HOUSING AND URBAN DEVELOPMENT, ACTING US ATTORNEY
                   __________________________

                Appeal from the United States District Court
                   for the Middle District of Pennsylvania
                         (D.C. Civil No. 07-cv-1939)
               District Judge: Honorable Thomas I. Vanaskie
                       __________________________

            Submitted for Possible Summary Action Pursuant to
                 Third Circuit LAR 27.4 and I.O.P. 10.6
                             January 29, 2009

         Before: RENDELL, HARDIMAN and ROTH, Circuit Judges

                          (Filed: March 16, 2009)
                                 _________

                       OPINION OF THE COURT
                             _________
PER CURIAM

       Joseph Fessler and Ann Fessler appeal from an order of the United States District

Court for the Middle District of Pennsylvania granting Defendants’ motions to dismiss on

grounds of claim preclusion. For the reasons set forth below, we will summarily affirm.

See I.O.P. 10.6.

       On October 24, 2007, Joseph Fessler and Ann Fessler (“the Fesslers”), proceeding

pro se, filed an action against Kirk Sauer, Community Development of Wilkes-Barre;

Richard Gelhard, Ex-Deputy Executive Director of the Wilkes-Barre Redevelopment

Authority; Louis Attordo, Wilkes-Barre Redevelopment Authority; John G. Bravacos,

Area Director of the Department of Housing and Urban Development; Paul Cain, Ex-

Area Director of the Department of Housing and Urban Development; and Alphonso

Jackson, Secretary of the Department of Housing and Urban Development, related to their

dissatisfaction with the City of Wilkes-Barre Redevelopment Authority’s denial of a

relocation payment to the Fesslers.

       In 1973, the Fesslers’ property was taken by eminent domain by the City of

Wilkes-Barre, Pennsylvania. Following a denial of what they deemed an adequate

relocation benefit, the Fesslers filed numerous state and federal lawsuits against the City

of Wilkes-Barre Redevelopment Authority, the Department of Housing and Urban

Development, and several of the organizations’ employees. Prior to this action, the

Fesslers filed three previous lawsuits in the United States District Court for the Middle



                                             2
District of Pennsylvania. Following the Fesslers’ filing of an amended complaint in this

case, which did not substantively alter their claims, Defendants moved to dismiss the case

on the grounds that the Fesslers’ action was barred by the doctrine of claim preclusion.

The Fesslers moved for default judgment against Defendant Alphonso Jackson on

grounds that he failed to timely answer their Complaint. On August 22, 2008, the District

Court granted Defendants’ motions to dismiss the case and denied the Fesslers’ motions

for default judgment. The Fesslers filed a timely appeal and Defendants filed motions for

summary affirmance.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District

Court's application of claim preclusion is plenary. See Venuto v. Witco Corp., 117 F.3d

754, 758 (3d Cir. 1997).1 For the purposes of reviewing a motion to dismiss, we accept as

true all allegations of the complaint and all reasonable inferences that can be drawn

therefrom. See Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006).




  1
   The Fesslers also appeal the District Court's decision to deny their motion for a default
judgment against Defendant Alphonso Jackson. We review an order denying a default
judgment for abuse of discretion. See Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d
Cir. 2000). The District Court properly denied the Fesslers’ motion. Because Plaintiffs’
Complaint presented no obvious federal claim, any default handed down would have been
subsequently set aside under Rule 55(c) of the Federal Rules of Civil Procedure. See Fed.
R. Civ. P. 55(c).

                                             3
                                             III.

       As the District Court noted, this case has a protracted history, involving multiple

lawsuits over several decades. The District Court concluded that this action was merely

an attempt to re-litigate issues previously decided on the merits and dismissed the action

based upon the doctrine of claim preclusion.

       The purpose of claim preclusion is to avoid piecemeal litigation of claims arising

from the same events. See Bd. of Trs. of Trucking Employees of N. Jersey Welfare Fund,

Inc. v. Centra, 983 F.2d 495, 504 (3d Cir. 1992). A party raising claim preclusion as an

affirmative defense must demonstrate that there has been (1) a final judgment on the

merits in a prior suit involving; (2) the same parties or their privities; and (3) a subsequent

suit on the same cause of action. CoreStates Bank, N.A. v. Huls America, Inc., 176 F.3d

187, 194 (3d Cir. 1999).

       The District Court determined that all three requirements were satisfied in this case

because the first federal action filed by the Fesslers in 1980 was decided on the merits.

See Fessler v. Redevelopment Authority of the City of Wilkes-Barre, et al., Civil No. 80-

0141 (M.D. Pa. Nov. 20, 1980), aff’d 681 F.2d 805 (3d Cir. 1982), cert. denied, 459 U.S.

863. In that case, the District Court explained that it did not have jurisdiction over the

Fesslers’ claims because no federally protected rights had been violated. The Court held

that state law adequately protected the rights of individuals aggrieved by the state’s

exercise of its eminent domain power and that federal courts should not interfere. See



                                               4
Elterich v. City of Sea Isle City, 477 F.2d 289, 291-92 (3d Cir. 1973).2

        Our review of the record indicates that the District Court dismissed the Fesslers’

1980 case it because lacked subject matter jurisdiction. Thus, the merits of the case were

not reached. While state court records might exist showing that the Fesslers raised their

claim of inadequate compensation in a prior state court action, thus providing a basis for

claim preclusion of a state court judgment, neither the District Court nor the parties have

provided us with those records. See Logan v. Moyer, 898 F.2d 356, 357 (3d Cir. 1990)

(discussing the need for a complete record for appellate review of decisions based on

preclusion). Nevertheless, our review of the Fesslers’ case shows that they have raised no

obvious federal claims. Martin v. Creasy, 360 U.S. 219, 223-25 (1959). An action

seeking adequate compensation after one’s property has been taken by a state is

appropriately raised in state court. Id. In addition, the Fesslers’ case concerns events

which occurred more than three decades ago and would have been appropriately

dismissed by the District Court as time-barred. As there is no substantial question

presented by this appeal, we will summarily affirm. See Third Cir. LAR 27.4; I.O.P.

10.6.




  2
    Following that initial decision, the Fesslers filed two other federal lawsuits raising the
same issue of their dissatisfaction with their relocation benefit. See Fessler v. O’Karma,
et al., Civil No. 87-0849, slip op. (M.D. Pa. Jan. 11, 1989) and Fessler v. Finlayson, et al.,
Civil No. 89-1647, slip op. (M.D. Pa. Dec. 22, 1989). In those cases, the District Court
dismissed the actions, at least in part, upon a determination that the Fesslers’ claims were
precluded by the initial federal-court decision..

                                              5
