In re Paoli RR Yard PCB Litigation
| Decision Date | 13 November 1992 |
| Docket Number | 86-7561,86-7417,86-7418,87-2874 and 87-5269.,86-5277,No. 86-2229,86-7414,86-5886,86-2229 |
| Citation | 811 F. Supp. 1071 |
| Parties | In re PAOLI RAILROAD YARD PCB LITIGATION. This Document Relates To: Mabel BROWN v. SEPTA, et al. K. Louise JONES, et al. v. SEPTA, et al. James LAMENT v. SEPTA, et al. Christopher BROWN, et al. v. SEPTA, et al. Margherita BARBETTA v. SEPTA, et al. Mary Retta JOHNSON v. SEPTA, et al. John INGRAM, et al. v. SEPTA, et al. William BUTLER, et al. v. SEPTA, et al. Matthew CUNNINGHAM, et al. v. SEPTA, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Harold E. Kohn, Robert A. Swift, Jeanne P. Wrobleski, Kohn, Savett, Marion & Graf, P.C., Joseph C. Kohn, Martin J. D'Urso, Kohn, Klein, Nast & Graf, P.C., Arnold E. Cohen, Klehr, Harrison, Harvey, Branzburg & Ellers, John, Innelli, Rudolph, Seidner, Goldstein, Salmon, P.C., Laurence S. Berman, Levin, Fishbein, Sedran & Berman, D. Bruce Hanes, Powell, O'Shea, Hanes & Minehart, Christopher S. Vaden, U.S. Dept. of Justice, Environmental Defense Section, Environmental & Natural Resources Div., Washington, DC, for Mabel Brown.
Anthony Sherr, U.S. Dept. of Justice, Torts Branch, Civil Div., J. Steven Rogers, Christopher S. Vaden, U.S. Dept. of Justice, Environmental Defense Section, Land & Natural Resources Div., Washington, DC, Steven Engelmyer and James G. Sheehan, Asst. U.S. Attys., Philadelphia, PA, for U.S.
Roger F. Cox, C. Gary Wynkoop, Benjamin G. Stonelake, Jr., Wei Wei Chu, Blank, Rome, Comisky & McCauley, Philadelphia, PA, for SEPTA.
Mary C. Smith, David Richman, Laurence Z. Shiekman, Pepper, Hamilton & Scheetz, Philadelphia, PA, for CONRAIL.
Richard Kraemer, Suzanne H. Gross, Mary L. Grad, Margolis, Edelstein, Scherlis, Sarowitz and Kraemer, Philadelphia, PA, and Mary L. Grad, Associate Gen. Counsel, National R.R. Passenger Corp., Washington, DC, for Amtrak.
G. Daniel Bruch, Jr. and Jeffrey B. McCarron, Swartz, Campbell & Detweiler, Philadelphia, PA, Raymond Paschke, Westinghouse Elec. Corp., Pittsburgh, PA, David Craig Landin and Terrence M. Bagley, McGuire, Woods, Battle & Boothe, Richmond, VA, for Westinghouse Elec. Co.
R. Thomas McLaughlin, Jennifer Berke, Kelly, Harrington, McLaughlin & Foster, Philadelphia, PA, for the Budd Co.
Michael H. Malin, Kathy A. O'Neill, Thomas Goutman, James D. Shomper, John C. Keir, White & Williams, Philadelphia, PA, Gerald H. Davidson, Smith, Helms, Mulliss & Moore, Greensboro, NC, for Monsanto Co.
Harry A. Short, Jr. and Stephen M. McManus, Liebert, Short & Hirshland, Francis F. Quinn and John W. Vardaman, Philadelphia, PA, Sarah Duggin, Joseph G. Petrosinelli, David C. Kiernan and John W. Vardaman, Williams & Connolly, Washington, DC, for General Elec. Co.
Timothy B. Barnard, Media, PA, for Roy F. Weston, Inc.
David G. Mandelbaum, Ballard, Spahr, Andrew & Ingersoll, Philadelphia, PA, for O.H. Materials Corp.
Robert A. Sutton, Asst. City Sol., City Solicitors Office, and Denise D. Colliers, Philadelphia, PA, for City of Philadelphia.
John J. Monsees, Blank, Rome, Cominsky & McCauley, Philadelphia, PA, for SEPTA and Penn Cent. Corp.
Charlotte E. Thomas, Arnold E. Cohen, Philadelphia, PA, for K. Louise Jones.
D. Bruce Hanes, Friedman & Hanes, P.C., Philadelphia, PA, for Christopher S. and Jacqueline Michell Brown.
Lauri Sussman Siegel, Zarwin, Baum, Resnick & Cohen, P.C., John Kohn, Martin J. D'Urso, Arnold Cohen, John Innelli and D. Bruce Hanes, Philadelphia, PA, for John
Ingram, Sr., John Ingram, Jr., and Patricia and April Ingram.
Geoffrey L. Beauchamp, Norristown, PA, and Martin J. D'Urso, Arnold Cohen, John Innelli and D. Bruce Hanes, Philadelphia, PA, for William and Theresa Butler, Marvin L., Allen K., Karen R. and Donald E. Simpson and Bryan M. Jackson.
Harold E. Kohn, Kohn, Savett, Klein & Graf, P.C., and Arnold E. Cohen, Philadelphia, PA, for James Lament.
D. Bruce Hanes, Friedman & Hanes, P.C., Philadelphia, PA, for Mary Retta Johnson and Margherita Barbetta.
Joseph C. Kohn, Philadelphia, PA, for Matthew and Bessie Cunningham.
This Motion concerns nine Plaintiffs who allege damage to their properties from the presence of polychlorinated biphenyls ("PCBs") in and around the Paoli Railyard (the "Yard") in Paoli, Pennsylvania. PCBs were an ingredient of the fire resistant dielectric fluid used in the electrical transformers attached to the underside of the railroad cars which were serviced and maintained at the Yard. Plaintiffs' expert, Barry Ludwig, opined that Plaintiffs' properties have been devalued as a result of being located near the Yard.
Upon consideration of Defendants' Motion for Summary Judgment on Plaintiffs' property claims and all responses thereto, this Court makes the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
1. In 1986, due to a perceived environmental threat, the United States Environmental Protection Agency ("EPA") excavated soil from certain residences near the Yard which was allegedly contaminated with PCBs. SEPTA by consent agreement with EPA has also undertaken remedial actions on the Yard itself.
2. Plaintiffs' properties have been the subject of cleanup pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq.
3. In 1987, EPA, SEPTA, Conrail and Amtrak entered into an Administrative Order by Consent under which a Remedial Investigation/Feasibility Study was conducted.
4. In March of 1992, EPA published its Proposed Plan — Paoli Rail Yard Superfund Site ("Proposed Plan") in which it lists various alternative remedies for the areas of alleged contamination. Under this Proposed Plan, EPA has remediated and/or will remediate the alleged contamination on Plaintiffs' properties and the Yard. EPA is still in the process of cleaning up Plaintiffs' properties in order to further reduce the levels of PCBs in the soil.
5. Plaintiffs admitted at their depositions that they have not incurred any costs associated with the remediation of their properties which has been undertaken by EPA through replacement of soil on the residential properties to reduce PCB levels.
6. Not one Plaintiff claims to have sold property and received a lower price than he or she would have received if the property had not had detectable PCB levels.
7. Plaintiffs designated Barry Ludwig as their expert witness on property damages and produced: B. Ludwig, The Impact on Residential Values of Proximity to the Paoli Railroad Yard (March 17, 1992). Plaintiffs' alleged property damages include the following: (1) loss in marketability and market value from the fact that PCBs have contaminated their properties; and (2) an alleged decrease in property values due to the "stigma" attached to Plaintiffs' properties due to their proximity to the Yard even if the properties are eventually satisfactorily cleaned up.
1. Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
2. This Court must view the record in a light most favorable to the party opposing the motion for summary judgment. Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir.1981). The moving party is entitled to summary judgment where no reasonable resolution of the conflicting evidence and inferences therefrom could result in a judgment for the non-moving party. Bank of Am. Nat'l Trust and Sav. Ass'n v. Hotel Rittenhouse Assoc., 595 F.Supp. 800, 802 (E.D.Pa.1986) (citations omitted).
3. Once the movant has established the absence of a genuine issue of material fact, Rule 56(e) requires the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(e)).
4. "The purpose of damages for injury or destruction of property by tortious conduct of another is to compensate the injured owner for the actual loss suffered." Babich v. Pittsburgh & New England Trucking Co., 386 Pa.Super. 482, 563 A.2d 168, 170 (1989). The method of computing property damage under Pennsylvania law is as follows:
the cost of repairs where that injury is reparable unless such cost is equal to or exceeds the value of the injured property. Where the cost of repair does exceed the value of said property, the cost of damages becomes the value of the property. Where, however, the injury is deemed to be permanent, the measure of damages becomes the decrease in the fair market value of the property.
Kirkbride v. Lisbon Contractors, Inc., 385 Pa.Super. 292, 560 A.2d 809, 812 (citations omitted), rev'd on other grounds, 555 A.2d 800 (Pa.1989); Rabe v. Shoenberger Coal Co., 213 Pa. 252, 62 A. 854 (1906).
5. Under Pennsylvania law, the cost of remediating harm to property is the exclusive measure of damages where the harm is temporary and remediable. The court in Kirkbride stated that:
In Lobozzo v. Adam Eidemiller, Inc., 437 Pa. 360, 263 A.2d 432 (1970), the Pennsylvania Supreme Court specifically noted that, with regard to remedial damage to realty, a plaintiff may recover only the cost of repair or restoration without regard to the diminution in value of the property. In making its determination, the Court looked to the holding of Rabe ... which unequivocally held that where an injury is reparable, the damage is the cost of repair or restoration.
Kirkbride, 560 A.2d at 813 (citation omitted).
6. Since EPA has...
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