McQuilken v. A & R DEVELOPMENT CORP.

• Decision Date: 05 December 1983
• Docket Number: Civ. A. No. 81-419.
• Citation: 576 F. Supp. 1023
• Parties: Robert McQUILKEN and Jean McQuilken, et al., Plaintiffs, v. A & R DEVELOPMENT CORP., et al., Defendants, v. AMBRIC TESTING AND ENGINEERING ASSOCIATES, INC., et al., Third Party Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

576 F. Supp. 1023

Robert McQUILKEN and Jean McQuilken, et al., Plaintiffs, v. A & R DEVELOPMENT CORP., et al., Defendants, v. AMBRIC TESTING AND ENGINEERING ASSOCIATES, INC., et al., Third Party Defendants.

Civ. A. No. 81-419.

United States District Court, E.D. Pennsylvania.

December 5, 1983.

COPYRIGHT MATERIAL OMITTED

Joseph M. Gindhart, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, Pa., for plaintiffs.

Theodore H. Lunine, Bennett, Bricklin, Saltzburg & Fullem, Philadelphia, Pa., for A & R Development/The Waterford Group.

Austin Hogan, White & Williams, Philadelphia, Pa., for Jolly Co., Inc. d/b/a The Whitman General Contracting Co.

Thomas L. Kelly, Kelly, Haase & Dunn, Media, Pa., for Redevelopment Authority of the City of Philadelphia.

Arthur W. Lefco, Mesirov, Gelman, Jaffe, Cramer & Jamieson, Philadelphia, Pa., for Philadelphia Housing Authority.

Joseph Goldberg, Margolis, Edelstein & Scherlis, Philadelphia, Pa., for Ambric Testing & Engineering Associates—Leet Associates.

Edwin F. McCoy, LaBrum & Doak, Philadelphia, Pa., for Sylvester Thompson & Sons, Inc.

Walter S. Batty, Jr., Asst. U.S. Atty., Philadelphia, Pa., for U.S. Dept. of Housing & Urban Development.

John T. Thorn, Detweiler, Hughes & Kokonos, Philadelphia, Pa., for Skarda & Richert Structural Consultants, Inc.

Thomas R. Harrington, Kelly, Harrington, McLaughlin & Foster, Philadelphia, Pa., for L.B. Foster Co.

Bruce D. Lombardo, Harvey, Pennington, Herting & Renneisen, Ltd., Philadelphia, Pa., for Menefee Associates.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

The plaintiffs in this case, Robert and Jean McQuilken and Joseph Crowley, seek to recover for damages to their property caused by construction activity on the Whitman Park site. They also seek to represent a class consisting of "all persons residing in and/or owners of homes located on the East side of the 2500 and 2600 blocks of South 2nd Street, and on the North side of the 100 block of Porter Street, all in Philadelphia, Pennsylvania." Before the court are the motions of defendants, United States Department of Housing and Urban Development (HUD), the City of Philadelphia, (City), and the Redevelopment Authority of the City of Philadelphia (RDA), to dismiss the complaint as to them, the plaintiff's motion for certification of the class, the motion of the Philadelphia Housing Authority (PHA) for summary judgment, and various discovery motions. Because this case has a relatively complex procedural history and is related to another complex case, Resident Advisory Board v. Rizzo, No. 71-1575, a brief discussion of its current posture is necessary before proceeding to a discussion of the various motions.

This suit was filed in the Court of Common Pleas of Philadelphia County and removed to this Court two days later. As filed, the suit sought injunctive relief and damages against three defendants, A & R Development Corp. (A & R), Jolly Company, Inc. (Jolly), and the Philadelphia Housing Authority (PHA). The plaintiffs claim that A & R and Jolly, pursuant to a contract with the PHA, have engaged in piledriving, earth-moving, concrete pouring and machinery moving activities which have "caused conditions to occur in the homes of the individual plaintiffs including cracked walls, ceilings and pipes." The complaint also alleges that the defendants "willfully and knowing that their activities caused such conditions, continued and will continue same." The suit sought damages for the injury to property and sought to enjoin further construction activity.

Following removal, the case was assigned to this Court as related to Resident Advisory Board v. Rizzo. In RAB v. Rizzo, this Court ordered the PHA, the RDA, the City, and HUD to proceed immediately with all necessary steps for the construction of one hundred twenty townhouses at Whitman Park. 425 F.Supp. 987 (E.D.Pa. 1976), aff'd as modified, 564 F.2d 126 (3d Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978). The construction activity which the plaintiffs sought to enjoin was that mandated by this Court's Order in RAB v. Rizzo. The Court held that the removal of the case was proper pursuant to 28 U.S.C. § 1443(2) as a suit arising out of acts performed "under color of authority derived from any law providing for equal rights," and pursuant to 28 U.S.C. § 1441(b) since the real nature of the claim, which sought to enjoin construction ordered by this Court, was federal. McQuilken v. A & R Development Corp., 510 F.Supp. 797 (E.D.Pa.1981). The Court thereafter ordered the City, the RDA, and HUD added as defendants, since the suit sought to enjoin construction activity which they had been ordered to perform.

Following its decision that removal of this action was proper, the Court began a hearing on the plaintiffs' motion for injunctive relief. In the course of this hearing, the plaintiffs announced in open court that they were withdrawing their request for an injunction and left the courtroom. The Court sua sponte entered Orders limiting construction activity which might produce vibration levels possibly endangering the people in the area or the properties surrounding the construction site. Orders of April 10, 1981 and September 25, 1981. Construction of the Whitman Park townhouses has been completed, and the homes are now occupied.

Numerous third parties have been brought into this action by A & R and Jolly. A & R has impleaded Ambric Testing and Engineering Associates and its subsidiary, Leet Associates (Ambric-Leet), and Sylvester Thompson and Sons (Thompson). Jolly has impleaded Ambric-Leet and Thompson, as well as Menefee Associates (Menefee), Skarda*Rickert Structural Consultants, Inc. (Skarda*Rickert), and L.B. Foster Co. (Foster). With perhaps a few exceptions, it appears that at this point in the litigation all of the defendants and third-party defendants have filed counterclaims or cross-claims against each other. In summary, the third-party claims include claims that Jolly, A & R and Ambric-Leet negligently supervised the pile-driving, that Jolly and A & R negligently supervised other contractors, that Menefee and Ambric-Leet were negligent with respect to soil work, that Skarda*Rickert negligently performed engineering work, that Foster was negligent and/or breached its warranty in supplying the pile-driving equipment, and that Thompson was negligent in performing the pile-driving. PHA has alleged in a cross-claim that Thompson should be held strictly liable for the pile-driving activity on the ground that pile-driving is an abnormally dangerous activity under Pennsylvania law.

Motions of the City, the RDA and HUD to Dismiss.

The City and the RDA have filed motions to dismiss the complaint as to them. They state that they were added as parties only because their presence was necessary to the granting of any injunctive relief and that, since only a damages claim remains in this action, there is no reason for their continued presence here. The motions of the City and the RDA to dismiss are unopposed, and at a hearing on the motions the plaintiffs and the other parties present stated that they had no objection to the dismissal of the City and the RDA from the case. An Order will, therefore, be entered granting the motions of the City and the RDA and dismissing them from this action.

HUD has also moved to dismiss the complaint stating, among other grounds, that this Court lacks jurisdiction over the plaintiffs' damages claim against it because no written notification of the claim with a demand for payment was first presented to the agency itself. The plaintiffs have not objected to this motion. As a sovereign, the United States is immune from suit except as it consents to be sued, and the terms of that consent define the Court's jurisdiction. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The United States has consented to be sued for damages with respect to a number of tortious activities, but only if the requirements of the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq., are met. Under the Act, a claim may not be maintained in a federal Court unless the claimant first presents the claim to the agency being sued and includes a written notification of the incident and a demand for money damages in a sum certain. 28 U.S.C. § 2675(a); 28 C.F.R. § 14.2; Sheppard v. National Assn. of Flood Insurers, 520 F.2d 11, 24 (3d Cir.1975). These prerequisites to suit have not been met in the present case. Accordingly, HUD's motion to dismiss the complaint will be granted.

The Court held a hearing to determine if the dismissal of HUD and the mootness of the claims for injunctive relief affected its jurisdiction over this case. The Court has concluded that its continued assumption of jurisdiction over this matter is proper and warranted. In an earlier Memorandum, reported at 510 F.Supp. 797, the Court determined that its jurisdiction over this case was proper under 28 U.S.C. § 1443(2) because the defendants were acting for the purpose of performing obligations imposed by the Order of this Court in RAB v. Rizzo that the Whitman townhouses be constructed. PHA was ordered to proceed with all steps necessary for the construction. A & R, the developer, and Jolly, the general contractor, performed the construction activity pursuant to contract, A & R with PHA and Jolly with A & R. Parties engaged in carrying out an affirmative order of a federal court necessary to remedy civil rights violations have been held to come within the "color of authority" clause of § 1443(2) and thus held able to remove suits against them arising out of the performance of those duties to federal court. 510 F.Supp. at 800-1 (citing Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966); Bohlander v. Independent School District No. 1 of Tulsa Co., Okla., 420 F.2d 693 (10th Cir.1969) and other cases). The Court does not find anything in § 1443(2) or the cases construing...