United States District Court, E.D. Pennsylvania
SCOTT R. MARCUM AND KERSTIN MARCUM, Plaintiff,
COLUMBIA GAS TRANSMISSION, LLC., COLUMBIA GAS TRANSMISSION COMMUNICATIONS CORPORATION, CROWN CASTLE INTERNATIONAL CORP., AND PERCHERON, LLC, Defendants.
Scott and Kerstin Marcum filed a complaint seeking
compensatory and punitive damages stemming from the
excavation and installation of pipes in their yard.
Defendants Columbia Gas Transmission, LLC
(“Columbia”) and Crown Castle International both
moved for partial dismissal of the action.
own a home in Downington, Pennsylvania. They purchased the
home in 1998 subject to an easement for a pipeline granted in
1957. Plaintiffs report no issues related to that easement.
In 1999, Plaintiffs and Columbia entered into a Right of Way
and Easement Agreement for the purpose of installing an
underground communications system within the area of the
Plaintiffs' property already subject to the 1957
easement. In 2002, Columbia sought to expand the easement to
install a larger pipe. After some contest, Plaintiffs signed
the new agreement. Columbia again approached Plaintiffs to
add a fiberoptic cable to the easement in 2014. Plaintiffs
signed the easement agreement, at issue in this suit, in May
of that year.
began construction pursuant to the easement in summer of
2015. After the construction, Plaintiffs began experiencing
water and mud runoff outside the easement zone. A mudslide
damaged interior drywall in their home. In February 2018,
Plaintiffs observed a sinkhole within the easement zone.
Columbia attempted to repair the sinkhole; in the course of
their repairs, Columbia realized the artery it needed to fill
was much deeper than it originally thought, and it had
concerns about the integrity of the street. Around December
7, 2018, Plaintiffs learned that the artery that needed to be
filled was in the same location as the fiberoptic cable.
Plaintiffs then concluded that the water damage to their home
was caused by subsurface water channeling into the artery and
the fiberoptic cable hole.
the time the complaint was filed, another sinkhole was
emerging in the easement area. It will likely require
additional, significant construction to close it. And new
sinkholes are expected to open in the coming months.
Plaintiffs filed suit against Columbia Gas Transmission (the
primary company in charge of construction on the easement);
Columbia Transmission Communications Corporation (the initial
holder of the easement); Crown Castle International
Corporation (the successor-in-interest to Columbia
Communications, which was purchased in 2013); and Percheron
LLC (the project manager for Columbia Gas).
order to survive a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), the complaint must “contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Threadbare” recitations of the elements
of a claim supported only by “conclusory
statements” are insufficient. Id. at 683.
Plaintiff's allegations must rise above mere speculation.
Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 542
(3d Cir. 2012) (citing Twombly, 550 U.S. at 545).
of Plaintiffs' complaint alleges fraudulent concealment.
Rule 9(b) imposes a heightened pleading standard on fraud
claims, requiring the party to plead with
“particularity” the circumstances constituting
fraud. The complaint must “either describe the
circumstances of the alleged fraud with precise allegations
of date, time, or place or may use some [other] means of
injecting precision and some measure of substantiation into
... allegations of fraud.” Bd. of Trs. of Teamsters
Local 863 Pension Fund v. Foodtown, Inc., 296 F.3d 164,
172 n.10 (3d Cir. 2002) (internal quotations and citations
also brings a motion to dismiss under Rule 12(b)(1),
asserting a factual challenge to the court's subject
matter jurisdiction. More specifically, it argues that a
binding arbitration clause strips the court of jurisdiction.
See Org. Strategies, Inc. v. Feldman Law Firm LLP,
604 Fed.Appx. 116, 119 (3d Cir. 2015); Voegele Mech.,
Inc. v. Local Union No. 690, __ F.Supp.3d ___, 2019 WL
3889747, at *10 (E.D. Pa. Aug. 19, 2019). “Because at
issue in a factual 12(b)(1) motion is the trial court's
… very power to hear the case there is substantial
authority that the trial court is free to weigh the evidence
and satisfy itself as to the existence of its power to hear
the case.” Mortensen v. First Fed. Sav. and Loan
Ass'n, 549 F.2d 884, 891 (3d Cir. 1977); see
also Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir.
argue that Columbia committed the tort of fraudulent
concealment by “failing to disclose to
plaintiffs that the proposed construction activities were
likely to result in subsidence and sinkholes in the
future.” Fraudulent concealment in Pennsylvania is
grounded in Section 551 of the Restatement (Second) of Torts.
Gaines v. Krawczyk, 354 F.Supp.2d 573, 587 (W.D. Pa.
2004). Plaintiffs must show:
(1) [Defendant caused] an omission; (2) the omission was
material to the transaction at hand; (3) the omission was
made falsely, with knowledge of its falsity or recklessness
as to whether it is true or false; (4) the omission was made
with the intent of misleading another into relying on it; (5)
the plaintiff justifiably relied on the omission; and (6) the
resulting injury was proximately caused by the reliance.
Id. (citing Gibbs v. Ernst, 647 A.2d 882,
207 n.12 (Pa. Super. 1994)).
addition to those six elements, Plaintiffs also must show a
special relationship that would give rise to a duty to speak
between them and the party that fraudulently concealed
information. “[M]ere silence is not sufficient in the
absence of a duty to speak.” Duquesne Light Co. v.
Westinghouse Elec. Corp., 66 F.3d 604, 612 (3d Cir.
1995) (internal quotations omitted). Most commonly, this
means showing a fiduciary relationship between Plaintiffs and
Defendant. eToll, Inc. v. Elias/Savion Advertising
Inc., 811 A.2d 10, 23 (Pa. Super. 2002). A
“fiduciary duty is the highest duty implied by
law… . [It] requires a party to act with the utmost
good faith in furthering and advancing the other person's
interests, including a duty to disclose all relevant
information.” Yenchi v. Ameriprise Fin., Inc.,
161 A.3d 811, 819-20 (Pa. 2017) (internal citation omitted).
simple difference in baseline knowledge does not create a
special relationship-if “a party did not believe that
the professional possessed specialized expertise worthy of
trust, the contract would most likely never take
place.” eToll, 811 A.2d at 23. A special
relationship generally does not arise in a typical,
arms-length business transaction unless “one party
surrenders substantial control over some portion of its
affairs to the other.” Gaines, 354 F.Supp.2d
at 586. This is often described as requiring