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May 17, 1995

SHARON ROHRBACH, et al., Plaintiffs,
AT&T NASSAU METALS CORP., et al., Defendants.

The opinion of the court was delivered by: VANASKIE

 By Motion filed November 14, 1994, plaintiffs requested that the Honorable James F. McClure, Jr. disqualify himself from this protracted litigation and vacate all Orders he had entered. By Memorandum and Order dated November 22, 1994, Judge McClure granted the recusal request, but refused to vacate his prior Orders. On December 7, 1994, after this matter had been reassigned, plaintiffs moved for reconsideration of Judge McClure's refusal to vacate his Orders. Because Judge McClure's recusal on the basis of an appearance of partiality taints his largely discretionary decisions concerning scope of discovery, which, in turn, may have affected his summary judgment rulings, plaintiffs' motion will be granted and all Orders issued in this matter by Judge McClure will be vacated.


 This litigation stems from the operation of a metals reclamation facility located in Foster Township, Luzerne County, Pennsylvania. Prior to 1985, the facility was operated by defendant C&D Recycling, Inc. ("C&D"), and its predecessor-in-title, Lurgan Corporation. In 1985, the facility was placed on the National Priority List of Superfund sites compiled under the authority of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq., ("CERCLA").

 Plaintiffs, ten individuals, seek damages for injuries purportedly caused by alleged migration of hazardous substances from the Lurgan/C&D site onto their adjacent properties. In their amended complaint filed on April 25, 1990 (Docket Entry 33), plaintiffs assert common law claims of trespass, nuisance, negligence, strict liability, negligent and intentional infliction of emotional distress, and medical monitoring, as well as statutory claims under CERCLA, the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961, et seq. (the "Racketeering Act"), and the Pennsylvania Hazardous Sites Clean Up Act, 35 Pa.S.C.A. §§ 6020.101, et seq., ("HSCA").

 Named as defendants are C&D, one of its principal owners, Joseph Brenner, AT&T Nassau Metals Corporation ("Nassau"), and American Telephone and Telegraph Company ("AT&T"). Lurgan Corporation was also named as a defendant, but apparently was not served and is defunct. Since June of 1992 C&D and Mr. Erenner have been proceeding without counsel.

 Nassau was a wholly-owned subsidiary of Western Electric Company, Inc., which in turn was a wholly-owned subsidiary of AT&T. Plaintiffs' claims against Nassau and AT&T are premised upon the assertion that they had "arranged to have material which contained hazardous substances" transported to the Lurgan/C&D site for treatment and disposal.

 In a series of rulings issued in June and September of 1994, Judge McClure disposed of the pending partial summary judgment motions. It appears that those decisions reduced plaintiffs' claims significantly. According to Nassau and AT&T, this litigation is now limited to:

 (a) A claim of trespass and nuisance since August 31, 1987, against Nassau;

 (b) personal injury and emotional distress claims against Nassau by minor plaintiffs Ryan Oberst and Saura Rohrbach; and

 (c) a CERCLA and HSCA "response cost" claim against Nassau and AT&T. [Nassau and AT&T status report (Docket Entry 846) at 28.] *fn1"

 As noted above, Judge McClure had precluded the filing of motions pending his disposition of the partial summary judgment motions. In his Order #3 of September 30, 1994, Judge McClure established the procedures and limitations for the anticipated reconsideration motions. His Order also established the deadline for filing motions in limine, and directed that "each motion in limine shall address a single evidentiary matter . . . ."

 Consistent with the parties' prior practice in this case, eleven motions for reconsideration of the summary judgment rulings were filed, six on behalf of plaintiffs and five on behalf of Nassau and AT&T. The parties have filed 120 motions in limine, with Nassau and AT&T filing 115 such motions on November 15, 1994.

 The day before Nassau and AT&T filed their in limine motions, plaintiffs moved for the recusal of Judge McClure. Plaintiffs' motion was based upon the relationship of Judge McClure and his wife to Buffalo Valley Telephone Company ("BVT"), a local exchange carrier operating in central Pennsylvania.

 Prior to his appointment to this Court, Judge McClure had served as Vice Chairman, Secretary and Director of BVT, and owned an interest in BVT. Following his appointment to this Court, he resigned his positions with BVT, but was replaced as a director by his spouse. It appears that BVT is both a competitor of AT&T and has various "interconnect" and contractual relationships with AT&T. During his Senate Confirmation hearings, Judge McClure stated that in light of his relationship with BVT he would recuse himself "from hearing any matters involving telecommunications . . . ." Plaintiffs complained, inter alia, that Judge McClure had failed to disclose to the parties his interest in BVT and his spouse's position with BVT, and that he had breached his commitment to recuse himself in matters involving telecommunications.

 Without awaiting receipt of a response from Nassau and AT&T to plaintiffs' motion for disqualification, Judge McClure recused himself. His decision was based on 28 U.S.C. § 455(a), which, in pertinent part, provides that "[any . . . judge . . . of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Judge McClure reasoned that an objective person might reasonably harbor doubts concerning his impartiality in view of his family's financial interests in BVT and his failure to disclose those interests.

 While granting the request for recusal, Judge McClure summarily rejected the demand that he vacate all of his prior Orders, stating:

Such a notion is absurd. A number of discovery and scheduling matters, dispositive motions, etc., have been considered by the Court. Vacating all of our prior Orders essentially would restart the case in its entirety. Nor will we certify the matter to the Court of Appeals, as requested. The judge to whom the case is assigned may, as appropriate, vacate our prior orders as he or she deems fit when considering the various motions for reconsideration. [November 22, 1994 Memorandum (Docket Entry 736) at 11.]

 Plaintiffs now request reconsideration of the refusal to vacate all Orders previously issued by Judge McClure in this matter. Alternatively, plaintiffs ask that the denial of vacatur be certified for interlocutory appeal. *fn2"


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