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Kulina v. UGI

March 18, 2009


The opinion of the court was delivered by: Chief Judge Yvette Kane


Before the Court is Defendant UGI Utilities' ("UGI") motion to dismiss, or in the alternative, motion to strike Plaintiffs' complaint (Doc. No. 5), and Defendant Handwerk Contractors' ("Handwerk") motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6) (Doc. No. 8). Because the two motions raise nearly identical arguments, both motions will be addressed here. For the reasons that follow, the Court grants in part and denies in part Defendants' motions.


On May 21, 2008, at approximately 1 p.m., a severed gas line caused an explosion, which in turn destroyed the property of Plaintiffs Sharon Kulina and Dale Durdock. (Comp. ¶¶ 1, 12, & 18.) Plaintiffs allege that the explosion resulted when from Defendant Handwerk excavated near the front lawn and sidewalk of Plaintiffs' property and struck and severed a gas pipeline. (Comp. ¶ 16.) On severing the pipeline, Defendant Handwerk left the scene, gas rose into the building, and the building exploded. (Comp. ¶¶ 17-18.) Plaintiffs estimate that the value of their property and business located thereon was approximately $650,000. (Comp. ¶ 13.)

Plaintiffs were not at the property when the explosion occurred, but arrived at the location sometime after the explosion. (Comp. ¶ 23.) Plaintiffs were visibly upset by the damage to their property, and were detained for questioning by Defendant Gregory Day, a police officer purportedly representing Derry Township. (Comp. ¶ 25.) Unnamed Defendant John Doe allegedly took Plaintiffs into custody, and Defendant Day threatened them with incarceration if they failed to cooperate in his questioning. (Comp. ¶ 11, 26.) After the explosion, Defendants UGI and Handwerk refused the requests of Defendant Hummelstown Borough to pay for the clean-up costs on the site. Plaintiffs, however, were coerced into signing a personal commitment obligating them to pay $19,400 to clean the site and to remove the resulting nuisance. (Comp. ¶¶ 28-31.) To further ensure payment, Plaintiffs were criminally charged by Defendants Michael O'Keefe and Bradley Miller for failure to abate the nuisance. (Comp. ¶ 32.) Defendants O'Keefe and Miller then conducted a "media blitz," in which they described Plaintiffs as "negligent and "uncooperative." (Comp. ¶¶ 36-37.)

Plaintiffs filed this action in federal court on August 28, 2008 alleging federal civil rights violations and state negligence, false light, and defamation claims. The Court will address only UGI and Handwerk's motions in this memorandum.


A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint, Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993), and is properly granted when, taking all factual allegations and inferences as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). Thus, the moving party must show that Plaintiff has failed to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist." Kost, 1 F.3d at 183 (citations omitted). A court, however, "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 908 (3d Cir. 1997). Indeed, the Supreme Court has recently held that while this standard does not require "detailed factual allegations," there must be a "'showing,' rather than a blanket assertion of entitlement to relief . . . '[F]actual allegations must be enough to raise a right to relief above the speculative level'" in order to survive a 12(b)(6) motion to dismiss. Phillips v. County of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007)).


A. Supplemental Jurisdiction

Defendants argue that the state law claims should be dismissed on jurisdictional grounds for two reasons. They argue that the state law claims do not arise from the same common nucleus of operative fact as the federal claims, and therefore that the Court lacks supplemental jurisdiction. Defendants also argue that the state law claims predominate the litigation, and therefore that those claims should be heard in state court even if the claims technically meet the nexus requirement of supplemental jurisdiction. Plaintiffs argue that their federal claims arise from the explosion that occurred as a result of Defendants' negligence and therefore that all claims arise from the same common nucleus of operative facts.

The Court's ability to exercise supplemental jurisdiction over Plaintiffs' state law claims is determined by 28 U.S.C. § 1367(a), which provides, in relevant part and subject to certain exceptions, that:

[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.

28 U.S.C. § 1367(a). Supplemental jurisdiction over a pendent state claim is available under § 1367(a) only if three requirements are met. Lyon v. Whisman, 45 F.3d 758, 760 (3d Cir. 1995).*fn1 First, there must be a federal claim that has "substance sufficient to confer subject matter jurisdiction on the court." Id. (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)). In this case, it is agreed that the ยง 1983 claims establish subject matter jurisdiction. Second, under what is called the "nexus requirement," the federal claims and the pendent state claims must "derive from a common nucleus of operative facts." Lyon, 45 F.3d at 760. Third, leaving the claims' federal or state character aside, the nature of the claims must be such that the party would ...

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