Russell v. Chesapeake Appalachia, L.L.C.

• Decision Date: 21 November 2014
• Docket Number: Case No. 4:14-cv-00148
• Parties: SHELIA RUSSELL, JIM SPLAIN, SUE SPLAIN, JANELLE SPLAIN, SUSAN HOUSEL, JOHN CHAFFEE, CAROL FRENCH, CLAUD ARNOLD, LYNSEY ARNOLD, ROBERT DONOVAN, ROBIN DONOVAN, CAROLYN KNAPP, N.K., a minor, by Carolyn Knapp, guardian, M.K., a minor, by Carolyn Knapp, guardian, ANGEL UMBACH, DAVID UMBACH, and ALLISON KOLESAR, Plaintiffs, v. CHESAPEAKE APPALACHIA, L.L.C., and SUPERIOR WELL SERVICES Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

SHELIA RUSSELL, JIM SPLAIN, SUE SPLAIN, JANELLE SPLAIN,SUSAN HOUSEL, JOHN CHAFFEE, CAROL FRENCH,CLAUD ARNOLD, LYNSEY ARNOLD, ROBERT DONOVAN,ROBIN DONOVAN, CAROLYN KNAPP, N.K.,a minor, by Carolyn Knapp, guardian, M.K.,a minor, by Carolyn Knapp, guardian, ANGEL UMBACH, DAVID UMBACH,and ALLISON KOLESAR, Plaintiffs, v. CHESAPEAKE APPALACHIA, L.L.C.,and SUPERIOR WELL SERVICES Defendant.

Case No. 4:14-cv-00148

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

November 21, 2014

(Judge Brann)

MEMORANDUM

Before the Court are Defendant Chesapeake Appalachia, L.L.C. and Defendant Superior Well Services'¹ ("Defendants") Motion to Dismiss for Failure to State a Claim, the Defendants' Motion to Sever, and the Defendants' Motion fora Lone Pine Case Management Order. The Court retains jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. § 1332.²

For the following reasons, the Defendants' Motion to Dismiss is granted in part and denied in part; the Defendants' Motion to Sever is denied without prejudice; and, the Defendants' Motion for a Lone Pine Case Management Order is denied without prejudice.

I. BACKGROUND

The Court writes primarily for the Parties; accordingly, these facts serve merely to orient the reader in brief. The Plaintiffs³ in this case are residents and/or owners of property situate in Bradford County, Pennsylvania. The Defendants' are companies conducting natural gas exploration, extraction, transportation, and associated activities on or around the Plaintiffs' various properties.

On December 27, 2013, Plaintiffs filed a sixty-five (65) page Complaint inthe Court of Common Pleas of Dauphin County, Pennsylvania. The Plaintiffs allege that the noise, traffic, lights, and other aspects of Defendants' operations constitute common law nuisance, negligence, and negligence per se. The Plaintiffs seek injunctive relief as well as compensatory and punitive damages.

The Plaintiffs served the Complaint on the Defendants on January 3, 2014, and the Defendants removed the action to this Court on January 28, 2014 (ECF No. 1). The Defendants filed their Motion to Dismiss and Motion to Sever on February 4, 2014, and their Motion for a Lone Pine Case Management Order on March 12, 2014. The Parties have briefed the issues and they are ripe for determination.

II. DISCUSSION

A. Defendants' Motion to Dismiss

1. Motion to Dismiss Standard

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 662. The standard seeks to eliminate those claims that do not present "enough" factual matter, assumed to be true, "to raise areasonable expectation that discovery will reveal evidence" in support of the claims. Twombly, 550 U.S. at 556. Where a plaintiff fails to nudge his "claims across the line from conceivable to plausible, [his] complaint must be dismissed." Id., 550 U.S. at 570.

To determine the adequacy of a complaint under this standard, a court should: (1) identify the elements of the claim(s); (2) review the complaint to strike conclusory allegations; and, (3) consider whether the well-plead components of the complaint and evaluate whether all elements previously identified are sufficiently alleged. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). All well-pleaded facts must be accepted as true at this juncture. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).

2. Punitive Damages

The Defendants seek to dismiss Plaintiffs' claim for punitive damages for failing to adequately plead the claim. "[P]unitive damages are an extreme remedy available only in the most exceptional circumstances." Tucker v. Bernzomatic, No. 09-5881, 2010 WL 1838704, *2 (E.D. Pa. May 4, 2010) (internal quotations omitted). Pennsylvania has adopted Section 908(2) of the RESTATEMENT (SECOND) OF TORTS, which permits punitive damages only for conduct that is "outrageous because of the defendant's evil motive or his reckless indifference tothe rights of others." Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (1984) (quoting Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963); RESTATEMENT (SECOND) OF TORTS, § 908(2)). "[I]n Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk." Lasavage v. Smith, 23 Pa. D& C. 5th 334, 2011 WL 9933458, *3 (Pa. Com. Pl., Lackawanna Cnty., Mar. 31, 2011) (internal quotations and citation omitted).

To establish a punitive damages claim, "the state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious." Hutchison ex rel. Hutchison v. Luddy, 582 Pa. 114, 870 A.2d 766, 770 (2005) (quoting Feld, 485 A.2d at 748) (internal quotations omitted). A plaintiff must allege facts sufficient to support a plausible claim demonstrating this intentional, wanton, reckless or malicious conduct. See Twombly, 550 U.S. at 556. A showing of mere negligence, or even gross negligence, will not suffice to establish that punitive damages should be imposed. Phillips v. Cricket Lighters, 883 A.2d 439, 445 (Pa. 2005).

The only references to the Defendants' state of mind in the Plaintiffs'Complaint are threadbare recitals alleging that the Defendants "knew or in the exercise of reasonable care should have known" that their "negligent and reckless conduct" caused problems, and that "some or all of the acts and/or omissions of [the Defendants] described herein, including those of its officers, agents, contractors, and/or employees, were intentional and/or grossly, recklessly, and/or wantonly negligent, and were done with utter disregard for the [Plaintiffs'] rights, properties, safety, and well-being." Defs.' Notice Removal, Ex. A, Compl. 39, Jan. 28, 2014, ECF No. 1 [hereinafter Compl.]. There is not a generalized statement of facts plausibly demonstrating the Defendants' subjective appreciation of the risk of harm from which Defendants may form a responsive pleading on the claim for punitive damages; the Plaintiffs' do not make specific allegations beyond mere negligence. See Am. Technical Mach. Corp. v. Masterpiece Enters., Inc., 235 F. Supp. 917, 918 (M.D. Pa. 1964) (Nealon, J.).

This does not meet the high standard for "evil motive" or "reckless indifference" necessary to impose punitive damages in Pennsylvania. Feld, 485 A.2d at 747. Accordingly, the Plaintiffs' punitive damages claim is dismissed without prejudice, and with leave to file an amended complaint. Ruder v. Pequea Valley Sch. Dist., 790 F. Supp. 2d 377, 391 (E.D. Pa. 2011) (granting leave to amend complaint to reassert claim with more specificity); see also Alston v.Parker, 363 F.3d 229, 235 (3d Cir. 2004).

3. Negligence Per Se

"Negligence per se is a subset of the basic negligence tort, and is based on the theory that the violation of a statute may serve as the basis for a finding of negligence." Lieberger v. Walter Co., 74 Pa. D. & C.4th 270, 291-92 (Pa. Comm. Pl., Fayette Cnty. 2005). The concept of negligence per se allows a litigant, and ultimately a court, to invoke a statute to supply elements of a negligence claim (e.g. duty and breach), when a defendant violates a statute that is designed to prevent the particular harm at issue and meets other applicable criteria.⁴ See, e.g., In re Am.Investors Life Ins. Co. Annuity Mktg. And Sales Practices Litig., No. CIV.A. 04-2535, 2007 WL 2541216, *34 (E.D. Pa. Aug. 29, 2007); Cabiroy v. Scipione, 2001 PA Super 29, 767 A.2d 1078, 1079 (2001).

While the Plaintiffs attempt to assert both negligence and negligence per se in their Complaint, "under Pennsylvania law, 'negligence per se is not a separate cause of action.'" Ramsey v. Summers, No. 10-CV-00829, 2011 WL 811024, *2 (W.D. Pa. Mar. 1, 2011) (quoting Zaborowski v. Lehman Bros., Inc., 60 Pa. D. & C.4th 474, 498 (Pa. Com. Pl. 2002)). Rather, negligence per se is "an evidentiary presumption that, in certain circumstances, a defendants [sic] mere breach of a statute's requirements is proof of a breach of its duty of care. The effect of such a rule is to stamp the defendants [sic] conduct as negligence, with all the effects of common law negligence, but with no greater effect." Daniel Boone Area Sch. Dist. v. Lehman Bros., Inc., 187 F. Supp. 2d 400, 407 (W.D. Pa. 2002) (citing W. PAGE KEETON, ET AL., PROSSER & KEETON ON TORTS 229-31 (5th ed. 1984)).

The Plaintiffs have supplied no case, binding or persuasive, that demonstrates otherwise. Accordingly, Count III of the Plaintiffs' Complaint is dismissed with leave to amend, subject to the following ruling as a matter of law on the Solid Waste Management Act allegations.

a. Solid Waste Management Act Claim Dismissed One of three statutes that the Plaintiffs invoke as a basis for negligence per se is Pennsylvania's Solid Waste Management Act (SWMA), 35 P.S. § 6018.101 et seq. Despite an erroneous decision to the contrary, it is firmly established that violations of the SWMA do not provide a basis for a negligence action because the statute is intended to benefit the public generally, not a particular group, as required by the negligence per se standard.⁵ See Hartle v. First Energy Generation Corp., 2014 WL 1117930, *5 (W.D. Pa. Mar. 20, 2014) ("This court concludes that the SWMA . . . is intended to benefit the public generally, not to protect the interest of a particular group. Accordingly, a violation of the SWMA does not give rise to a claim for negligence per se."); Tri-County Bus. Campus Joint Venture v. Clow Corp., 792 F....