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MCQUILKEN v. A&R DEV. CORP.

December 5, 1983

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



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 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 pile-driving, 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.

 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 it which limits this right of removal to cases seeking injunctive relief. See Voinovich v. Cleveland Board of Education, 539 F. Supp. 1100 (N.D. Ohio 1982) (suit against School Board members implementing court order removable under § 1443(2); Court denies motion for an expedited hearing on injunctive relief, finding that the plaintiffs have an adequate remedy at law). See also Willingham v. Morgan, 395 U.S. 402, 406-09, 89 S. Ct. 1813, 1816-17, 23 L. Ed. 2d 396 (1969). (Section 1442(a)(1) grants a party acting under color of federal office a broad right of removal and the right to present to a federal court the question whether his acts were within the scope of his authority).

 In any event, this Court acquired subject matter jurisdiction over this case at the time of its removal and is not deprived of jurisdiction over the remaining damage claims because of the mootness of the claims for injunctive relief. Whether subject matter jurisdiction exists in a case removed from state court "is a question answered by looking to the complaint as it existed at the time the petition for removal was filed. When a subsequent narrowing of the issues excludes all federal claims, whether a pendent state claim should be remanded to a state court is a question of judicial discretion, not of subject matter jurisdiction." In re Carter, 618 F.2d 1093, 1101 (5th Cir. 1980), cert. denied, 450 U.S. 949, 67 L. Ed. 2d 378, 101 S. Ct. 1410 (1981); See Salveson v. Western States Bankcard Assn., 525 F. Supp. 566, 580 (N.D. Cal. 1981) ("Once a case has been properly removed, the federal court acquires and retains jurisdiction of state law claims regardless of the dismissal of the federal claim"). The court is convinced that the interests of justice require it to proceed to dispose of this remaining dispute involving the construction of the Whitman Park townhouses. The construction of the townhouses has required a significant involvement by this court from the inception of litigation in 1971 to the present, and the resolution of this case may involve consideration of a number of this Court's orders in this case and RAB v. Rizzo. There has also been an unusually large amount of discovery in this litigation, and it would appear that this case can, and should, be brought to trial in the near future. See Goodman v. DeAzoulay, 554 F. Supp. 1029, 1038 & n.8 (E.D. Pa. 1983).

 Plaintiffs' Motion for Class Certification.

 The plaintiffs seek to certify a class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure "comprised of plaintiffs and all other 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." The plaintiffs allege that the members of this proposed class live in homes immediately surrounding the Whitman Park townhouses and that at least 150 homes have been directly affected by the construction activities, suffering substantial harm as a result. The plaintiffs also assert that the requirements of Fed.R.Civ.P. 23 for maintenance of a class action have been met and that, aside from the question of the precise amount of damage to each home, all questions of law and fact are common to the class. The defendants have not challenged the factual assertions in the plaintiffs' motion, except to state that certification of the class is precluded because questions of proximate cause and damages vary from class member to class member so that liability cannot be determined on a classwide basis.

 Rule 23(c)(4)(A) allows an action to be maintained as a class action with respect to "particular issues" where appropriate and does not require that all liability issues in an action be determinable on a classwide basis before the action may be certified as a class action. Rule 23 thus "clearly envisions class actions on any common issues," and the fact that some issues require individual treatment cannot, in itself, forclose certification. Hon. Spencer Williams, Mass Tort Class Actions: Going, Going, Gone?, 98 F.R.D. 323, 330 (1983) (emphasis in original). Although the Advisory Committee Notes to rule 23 caution that a "mass accident" causing injury to numerous persons "is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages, but of liability and defenses to liability, would be present, affecting the individuals in different ways," 39 F.R.D. 69, 103 (1966), class certification may not be denied simply because an action can be called a "mass tort". The factual and legal issues specific to the particular litigation must be analyzed to determine if class certification is proper under Rule 23 and offers a superior method for the fair and efficient adjudication of the controversy.

 In Bogosian v. Gulf Oil Corp., 561 F.2d 434, 448 (3d Cir. 1977), cert. denied, 434 U.S. 1086, 55 L. Ed. 2d 791, 98 S. Ct. 1280 (1978), the Third Circuit set out the inquiry which a district court must make in determining if a class should be certified pursuant to Rule 23(b)(3). First, the four prerequisites of Rule 23(a) must be met: the class must be so numerous that joinder of each individual member of the class would be impracticable; there must be questions of law or fact common to the class; the claims of the representative plaintiffs must be typical of the claims of the class, and the representative plaintiffs must appear to fairly and adequately represent the interests of the class. Second, the Court must identify which issues are common to the class and which are not common and determine if the common issues predominate. Third, the court must apply the fairness and efficiency criteria contained in the Rule to determine if the class action is superior to other methods of proceeding.

 Rule 23(a).

 The first requirement of Rule 23(a) is that the class be so numerous that joinder of each individual member of the class would be impracticable. In the present action there are alleged to be approximately 375 plaintiffs, residing in over 150 dwellings affected by the construction activity. Joinder of each of these plaintiffs individually would be impracticable and unnecessary, and joinder of even a lesser number has been held almost invariably to be impracticable. See Sharp v. Coopers and Lybrand, 70 F.R.D. 544 (E.D. Pa. 1976); Bentkowski v. Marfuerza ...


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