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Marcum v. Columbia Gas Transmission, LLC

United States District Court, E.D. Pennsylvania

November 20, 2019




         Plaintiffs 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.

         I. FACTS[1]

         Plaintiffs 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.

         Columbia 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.

         As of 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).


         In 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).

         Count I 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 omitted).

         Columbia 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. 1997).

         III. ANALYSIS

         A. Fraudulent Concealment

         Plaintiffs argue that Columbia committed the tort of fraudulent concealment[2] 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)).

         In 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).

         A 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 ...

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