United States District Court, E.D. Pennsylvania
PENROSE PARK ASSOCIATES, L.P. Plaintiff,
UNITED STATES OF AMERICA, acting through the DEFENSE LOGISTICS AGENCY; and, PENNONI ASSOCIATES, INC. Defendants.
Darnell Jones, II J.
Penrose Park Associates, L.P. brings the above-referenced
action asserting claims for Failure to Properly Remediate
Land Under the Hazardous Sites Cleanup Act of 1988, 35 P.S.
§§ 6020.101 et seq. (Count I); Negligent
Retention of a Contractor (Count II); Negligent Supervision
of a Contractor (Count III); Breach of Contract (Count IV);
Breach of Express Warranty (Count V); Breach of Implied
Warranty of Merchantability (Count VI); and Breach of Implied
Warranty of Fitness For a Particular Purpose (Count VII).
(Am. Compl., ECF No. 7.) Presently before this Court is
Defendant United States of America's (“United
States”) Motion to Dismiss all claims pursuant to
Fed.R.Civ.P. 12(b)(1) for lack of subject matter
jurisdiction. For the reasons set forth below,
Defendant's Motion shall be granted.
present case arises from the “design, installation
and/or repair of vapor barriers” which resulted in
“injury” to Plaintiff's property, Siena
Place. (Am. Compl. ¶ 9.) Siena Place was previously
owned by the Defense Logistics Agency (“DLA”),
which operated a manufacturing and supply depot for the
United States military. (Am. Compl. ¶ 10.) On December
10, 1999, the Pennsylvania Department of Environmental
Protection (“PaDEP”) ordered the DLA to remediate
a napthalene plume that developed in the soil on the land now
occupied by Siena Place. (Am. Compl. ¶ 11.) On or about
September 20, 2017, Plaintiff purchased Siena Place from the
Philadelphia Housing Authority. (Am. Compl. ¶ 15.)
Plaintiff granted the DLA an easement to allow the agency and
its contractor the right to enter the land in order to
install or repair the vapor barriers at any points in time,
in accordance with the PaDEP's 1999 order. (Am. Compl.
¶ 16.) The easement further provided that the DLA was
required to “fund the cost for the installation of
vapor barriers underneath to-be-constructed residential or
commercial buildings on the [p]roperty.” (Am. Compl.
¶ 12.) Additionally, the vapor barriers would “be
installed by a fully-insured, licensed and responsible
contractor who shall provide appropriate warranties
protecting [Penrose Park] against defects in material and
workmanship in the vapor barriers used.” (Am. Compl.
¶ 13.) With respect to any potential disputes regarding
its terms, the easement stated that “any action
commenced to enforce these terms of access shall be brought
in the United States District Court for the Eastern District
of Pennsylvania.” (Am. Compl. ¶ 17; Am. Compl. Ex.
E ¶ 21.) To satisfy the terms of the easement, the DLA
hired Fullard Environmental Controls, Inc.
(“Fullard”) for the remediation work, and
Defendant Pennoni Associates, Inc. (“Pennoni”)
was hired as a sub-contractor. (Am. Compl. ¶ 18.)
alleges that sometime around October 2016, residents of two
separate properties at Siena Place reported that
“‘petroleum-like' vapors were emanating from
their properties.” (Am. Compl. ¶ 21.) Plaintiff
claims the vapor barriers failed, causing naphthalene plume
gases to leak into the aforementioned properties. (Am. Compl.
¶ 22.) As a result, Plaintiff contends it incurred
“substantial expenses to repair the houses, relocate
families and sustained harm to its reputation for building
quality, residential homes.” (Am. Compl. ¶ 23.)
Plaintiff now seeks monetary damages for the “injury
and/or loss to its property.” (Am. Compl. ¶ 27.)
Standard of Review
challenge to subject matter jurisdiction under Rule 12(b)(1)
may take two forms: a facial challenge or a factual
challenge. If a facial challenge concerns an alleged pleading
deficiency, the trial court is restricted to a review of the
allegations of the complaint and any documents referenced
therein. CNA v. United States, 535 F.3d 132, 139 (3d
Cir. 2008); Gould Elec. Inc. v. United States, 220
F.3d 169, 177 (3d Cir. 2000). When considering a facial
challenge, “the trial court must consider the
allegations of the complaint as true.” Mortensen v.
First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891
(3d Cir. 1977).
factual challenge “concerns the actual failure of a
plaintiff's claims to comport factually with the
jurisdictional prerequisites.” CNA, 535 F.3d
at 139 (internal quotation, citation, and alterations
omitted). If the challenge before the trial court is a
factual challenge, the court does not accord any presumption
of truth to the allegations in the plaintiff's Complaint,
and the plaintiff bears the burden of proving subject-matter
jurisdiction. Id. With a factual challenge, the
court may weigh evidence outside the pleadings and make
factual findings related to the issue of jurisdiction.
Id.; U.S. ex rel. Atkinson v. Pa. Shipbuilding
Co., 473 F.3d 506, 514 (3d Cir.x2007). “[T]he
existence of disputed material facts will not preclude the
trial court from evaluating for itself the merits of the
jurisdictional claims.” Mortensen, 549 F.2d at
bringing its claims, Plaintiff invokes the Federal Tort
Claims Act, 28 U.S.C. § 1346(b)(1), to confer
jurisdiction upon this court. (Am. Compl. ¶ 4.) The
United States argues in its Motion to Dismiss that this Court
does not have subject matter jurisdiction because: (1)
subject matter jurisdiction cannot be conferred by agreement
of the parties; (2) the Tucker Act gives the Court of Federal
Claims exclusive jurisdiction over breach of contract claims
against the United States; and, (3) Plaintiff failed to
exhaust administrative remedies as required by the FTCA.
(Def.'s Mot. Dismiss 1.)
The Forum Selection Clause in the Easement Is Inapplicable
Because Parties Cannot Confer Subject Matter Jurisdiction on
stated above, the easement Plaintiff granted the DLA
contained a forum selection clause, which provides: “So
long as not prohibited by law, any action commenced to
enforce these terms of access shall be brought in the United
States District Court for the Eastern District of
Pennsylvania.” (Am. Compl. Ex. E ¶ 21.) The United
States now argues that the forum selection clause is invalid
“because parties to an agreement cannot unilaterally
confer subject matter jurisdiction” on a federal court,
and even if they could, the clause does not apply to the
instant case. (Def.'s Mot. Dismiss 4-5.)
well settled that “no action of the parties can confer
subject-matter jurisdiction upon a federal court. Thus, the
consent of the parties is irrelevant.” Ins. Corp.
of Ireland, Ltd. v. Compagnie Des Bauxites De Guinee,456 U.S. 694, 702 (U.S. 1982); see also Wharton-Thomas v.
United States, 721 F.2d 922, 926 (3d Cir. 1983)
(recognizing that the limits of subject matter jurisdiction
are prescribed by the United States Constitutional and
individual federal statutes, therefore it cannot be conferred
or waived); Spectacor Mgmt. Group v. Brown, 131 F.3d
120, 125 (3d Cir. 1997) (noting federal jurisdiction cannot
be conferred by agreement of parties, as it “arises
under the constitution. It is not created by contract or
waiver.”); Stewart v. JPMorganChase Bank,
N.A. (In re ...