of a preliminary injunction barring payments from the estate of a bankrupt railroad to railroad employees based on a finding that such payments would be unrecoverable in the event the payments were found to be an unconstitutional taking.
In United Church of the Medical Ctr. v. Medical Center Comm'n, 689 F.2d 693, 701 (7th Cir. 1982), the Seventh Circuit held that the district court abused its discretion in denying injunctive relief where a church whose property was going to be taken would have had to relocate building sites, reasoning that a given piece of property is always "unique" and its loss, even if accompanied by replacement by a different property, always causes irreparable injury. See also Carteret Savings Bank v. Office of Thrift Supervision, 762 F. Supp. 1159 (D.N.J. 1991) (injuries to reputation and limitations that would be placed on power to make business decisions that would be caused by allegedly unlawful taking constituted irreparable injuries), vacated on other grounds, 963 F.2d 585 (3d Cir. 1992).
In addition, none of the cases cited by plaintiffs in support of their argument that the potential violation of their constitutional rights is per se irreparable harm compels such a finding here. In Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 245 (3d Cir. 1980), cert. denied, 449 U.S. 1096 (1981), the Third Circuit held that an allegation of deprivation of constitutional "life and liberty" rights was a sufficient allegation of irreparable harm such that plaintiffs were not required to exhaust their administrative remedies before proceeding in district court. In Lewis v. Kugler, 446 F.2d 1343, 1350 (3d Cir. 1971), the Court of Appeals held that monetary damages do not adequately compensate unconstitutional searches and seizures and therefore equitable relief was available if such a violation was found. In Hairston v. Hutzler, 468 F.2d 621 (3d Cir. 1972), the Third Circuit affirmed a district court holding that injunctive relief was available to remedy unconstitutional police practices. At most, these cases support the view that the violation of certain constitutional rights may be deemed irreparable per se. They say nothing, however, regarding the compensability of a violation of property rights.
Although the power to exclude is an important feature of an individual's property rights, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435, 73 L. Ed. 2d 868, 102 S. Ct. 3164 (1982), courts have accepted monetary damages as an adequate measure of the loss suffered when property is validly taken pursuant to the eminent domain power of the State. See R. Epstein, Takings, 182-86 (1985) (concept of placing the property owner "in as good a position pecuniarily as if his property had not been taken" guides determinations of just compensation under the takings clause) (quoting Olson v. United States, 292 U.S. 246, 78 L. Ed. 1236, 54 S. Ct. 704 (1934)).
In the instant case, the traditional mechanism for determining compensation for a taking of property would be available to determine the property owner plaintiffs' loss, should plaintiffs prevail on the merits of their claim. If a constitutional violation is found, damages could be paid to the property owner plaintiffs as compensation for the time their properties were wired by Comcast. In addition, if the takings are determined to be invalid, equitable relief would be available to force defendants to remove the wiring they had installed and legal relief would be available to restore the properties to their original condition and compensate for any loss in value. Defendants have demonstrated that the takings will cause only a limited intrusion into the property owners' buildings and plaintiffs have presented no evidence that they cannot be fully compensated in this manner.
Therefore, the Court finds that monetary damages, in conjunction with an injunction requiring Comcast to remove the wiring it will install in the property owners' buildings, would adequately compensate the property owners if the takings were deemed invalid.
Finally, the Court notes that plaintiffs have not pointed, either in their moving papers, their proposed findings of fact and conclusions of law, or at oral argument, to any specific irreparable harm that ACS would suffer in the absence of a preliminary injunction. To the extent that ACS might suffer loss of customers or loss of good will if the injunction were not granted, the Court finds that such injuries, if suffered as the result of a violation of ACS' rights, could be compensated through money damages. See American Cablecom Limited Partnership v. Cablevision, 1993 U.S. Dist. LEXIS 11981, at *7 (E.D. Pa. 1993).
Plaintiffs have failed to establish that they will suffer irreparable harm if defendants take a limited portion of their property for the purpose of installing cable television services. Accordingly the Court will not issue a preliminary injunction enjoining defendants from proceeding with their rights under the Act.
An appropriate Order follows.
AND NOW, to wit, this 14th day of July, 1994, upon consideration of plaintiffs' oral application for reinstatement of their Motion for Preliminary Injunction made on May 18, 1994, this Court's May 25, 1994, Order granting plaintiffs' oral application for reinstatement of their Motion for Preliminary Injunction, the Motion of Plaintiffs, ACS Enterprises, Inc., et al., for Preliminary Injunction and Plaintiffs' Memorandum of Points and Authorities in Support of Plaintiffs' Motion and accompanying affidavits (Document No. 6), Plaintiffs' Supplemental Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Preliminary Injunction (Document No. 12), the Declaration of Tyrone Conner (Document No. 15), Defendants' Answer to Plaintiffs' Motion for Preliminary Injunction and Consolidated Memorandum of Law in Opposition to Plaintiffs' Motion for Preliminary Injunction and in Support of Defendants' Motion to Dismiss (Document No. 16), Plaintiffs' Memorandum of Points and Authorities in Opposition to Defendants' Motion to Dismiss and in Support of Plaintiffs' Motion for Preliminary Injunction (Document No. 22), the Affidavit of Dr. Alan Pearce (Document No. 23), Plaintiffs' Supplemental Brief (Document No. 24), Defendants' Surreply Memorandum (Document No. 25), Defendants' Supplement to Surreply Memorandum by letter dated July, 30, 1993 (Document No. 27), Plaintiffs' Response to Defendants' Supplement to Surreply Memorandum by letter dated August 9, 1993 (Document No. 28), Defendants' Supplemental Memorandum (Document No. 32), Plaintiffs' Response to Defendants' Supplemental Memorandum (Document No. 34), Defendants' Motion for Leave to File Additional Submission (Document No. 35), Defendants' Second Supplemental Memorandum (Document No. 37), the Affidavit of Dr. George Schink (Document No. 43), the Affidavit of Debra Thacker (Document No. 43), Plaintiffs' Requested Findings of Fact and Conclusions of Law (Document No. 45), the Affidavit of Charles Mallon (Document No. 47), Defendants' Proposed Findings of Fact and Conclusions of Law (Document No. 49), the Affidavit of Randolph J. Cicatello (Document No. 50), Plaintiffs' Alternative Proposed Conclusions of Law (Document No. 51), the Supplemental Affidavit of Debra Thacker (Document No. 52), and the argument on the Reinstated Motion for Preliminary Injunction held on June 2, 1994, for the reasons set forth in the accompanying Memorandum, IT IS ORDERED that plaintiffs' Reinstated Motion for Preliminary Injunction is DENIED.
BY THE COURT:
JAN E. DUBOIS