                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-7-2007

Norfolk S Railway Co v. Pittsburgh
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4286




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http://digitalcommons.law.villanova.edu/thirdcircuit_2007/990


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                                                NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ___________

                     No. 05-4286
                     ___________


    NORFOLK SOUTHERN RAILWAY COMPANY

                           v.

               CITY OF PITTSBURGH,
                           Defendant/Third-Party Plaintiff

                           v.

      CHARLES L. DESMONE & ASSOCIATES
       t/d/b/a Desmone & Associates Architects;
     MAZZA ENGINEERING ASSOCIATES, INC.,
                            Third Party Defendants

              City of Pittsburgh, Appellant


                     ___________

     On Appeal from the United States District Court
        for the Western District of Pennsylvania

                  (D.C. No. 04-cv-01808)
       District Judge: The Honorable Joy F. Conti
                      ___________

               ARGUED MAY 15, 2007

BEFORE: FISHER, NYGAARD, and ROTH, Circuit Judges.


                  (Filed: June 7, 2007)
                      ___________
John F. Doherty, Esq. (Argued)
George R. Specter, Esq.
City of Pittsburgh Department of Law
414 Grant Street
313 City County Building
Pittsburgh, PA 15219
       Counsel for Appellant


W. Gregory Rhodes, Esq. (Argued)
Klett, Rooney, Lieber & Schorling
One Oxford Centre, 40th Floor
Pittsburgh, PA 15219
       Counsel for Appellee

                                       ___________

                               OPINION OF THE COURT
                                    ___________

NYGAARD, Circuit Judge.

       The City of Pittsburgh appeals the District Court’s order granting a preliminary

injunction in favor of Norfolk Southern Corporation. We will affirm.

                                             I.

       The facts and procedural history of this case are well-known to the parties and are

thoroughly set forth in the Magistrate Judge’s Report and Recommendation (R&R).

Hence, we briefly summarize the factual background of the case and limit our discussion

to our ratio decidendi.

       A portion of the hillside under Corfu Street in Pittsburgh (“the City”) rests upon a

partially eroded, prehistoric landslide. The hillside recently became unstable, and on

several occasions, boulders, asphalt, trees and other debris have fallen onto a railroad

                                             2
track which Norfolk Southern operates below Corfu Street. The landslides have caused a

multi-car train derailment, extended delays in train traffic and physical injury to a

Norfolk Southern employee. Norfolk Southern has incurred extensive clean-up costs and

employs a flag-man around the clock to guide trains through the area.

       Norfolk Southern filed a complaint against the City, seeking, inter alia, a

preliminary injunction to compel the City to abate and correct conditions created by the

landslides, based upon state law public nuisance, private nuisance, and negligence claims.

Initially, the parties reached an agreement which provided for (1) the expedited

completion of an engineer’s report commissioned by the City; (2) continued posting of a

Norfolk Southern flag-man at the site; and (3) withdrawal of Norfolk Southern’s motion

for a preliminary injunction. Shortly thereafter, the City moved to dismiss Norfolk

Southern’s public nuisance claim.

       The engineer’s report identified a certain cluster of boulders, which began to fall

upon the railroad tracks, as a threat to rail traffic. Norfolk Southern moved for a

temporary restraining order to require the City to remove the cluster immediately. The

City then agreed to allow Norfolk Southern to enter the City’s property to remove the

largest boulder in the cluster, and to build a catchment fence beneath the cluster.

However, during construction of the fence, a large boulder fell out of the cluster, and

Norfolk Southern renewed its motion for a preliminary injunction.




                                              3
       The Magistrate Judge conducted a two-day evidentiary hearing, and recommended

that the District Court grant the preliminary injunction against the City. The District

Court adopted the R&R and entered the injunction.1 The City filed a timely appeal.

                                              II.

       We exercise jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). Acierno v. New

Castle County, 40 F.3d 645, 652 (3d Cir. 1994). On appeal, the City contends that

Norfolk Southern failed to satisfy the four requirements necessary to obtain a preliminary

injunction. A party seeking a preliminary injunction must show (1) a likelihood of

success on the merits; (2) it will suffer irreparable harm if the injunction is denied; (3)

granting relief will not result in even greater harm to the non-moving party; and (4) the

public interest favors such relief. Child Evangelism Fellowship of New Jersey v.

Strafford Twp. Sch. Dist., 386 F.3d 514, 524 (3d Cir. 2004).

       First, the City argues that Norfolk Southern failed to establish a “reasonable

likelihood of success” on the merits of its private nuisance and negligence claims.2 Under

Pennsylvania law, a private nuisance is a “nontrespassory invasion of another’s interest in

the private use and enjoyment of land.” Golen v. Union Corp., 718 A.2d 298, 300 (Pa.

Commw. Ct. 1998) (quoting 4 RESTATEMENT (SECOND) OF TORTS 2d §821D). Norfolk


        1.
           Hereinafter, we refer to the Magistrate Judge’s findings and conclusions as
those of the District Court.
        2.
          The District Court concluded that Norfolk Southern did not have a reasonable
likelihood of success on the merits of its public nuisance claim. Norfolk Southern does
not appeal the court’s conclusion.

                                               4
Southern does not argue that the City’s actions were “intentional and unreasonable.”

Therefore, to recover under a private nuisance theory, Norfolk Southern must show: (1)

the City’s conduct is the legal cause of its injury; and (2) the City’s conduct was

negligent, reckless, or abnormally dangerous. Folmar v. Elliot Coal Mining Co., 272

A.2d 910, 912 (Pa. 1971).

       We agree with the District Court that Norfolk Southern satisfied its burden here.

First, the City owns the land above Norfolk Southern’s property. It has a duty to use and

maintain the land so as not to injure adjoining landowners. McArthur v. Balas, 166 A.2d

640, 643 (Pa. 1961). Second, Norfolk Southern repeatedly warned the City of the

problems posed by the landslides. Meanwhile, over 1500 tons of debris has fallen onto

the railroad tracks, one train has been derailed, and a Norfolk Southern employee has

been injured. Experts for both Norfolk Southern and the City agree that, if no immediate

action is taken, the landslides will continue, with potentially catastrophic results.

       Norfolk Southern was likely to succeed on the merits of its negligence claim for

the same reasons. The City has a duty to maintain its property so as not to injure lower or

adjoining landowners. The City took no action, despite numerous warnings from Norfolk

Southern and other adjacent landowners, and its own experts’ recommendations. On

these facts, Norfolk Southern had a reasonable likelihood of success on its private

nuisance and negligence claims.




                                              5
       The City also argues that Norfolk Southern failed to establish an irreparable injury

that outweighs potential harm to other interested parties. The irreparable injury element

requires a clear showing of immediate irreparable injury. Establishing a risk of

irreparable injury is not enough. In addition, the purported injury “must be of a peculiar

nature, so that compensation in money cannot atone for it.” Glasco v. Hills, 558 F.2d

179, 181 (3d Cir. 1977).

       We agree with the District Court that Norfolk Southern met its burden here as

well. Expert witnesses for both parties testified that, without immediate action, more

landslides will occur. These landslides could lead to an entire collapse of

Corfu Street. As the District Court found, the unstable hillside below Corfu Street poses a

“presently existing actual threat” of severe, even deadly, personal injury to Norfolk

Southern employees and Corfu Street residents.

       The City argues that other trains have passed below Corfu Street without incident,

and that the alleged harm to Norfolk Southern is therefore not irreparable. However, the

facts the City adduces in support of this argument are not before us. Our review is limited

to the facts as they were presented to the District Court, and we see no error in the court’s

analysis.

                                            III.

       The record supports the District Court’s conclusion that Norfolk Southern was

likely to succeed on the merits of its private nuisance and negligence claims, and that



                                              6
Norfolk Southern established an “irreparable injury.” The District Court carefully

balanced the interests at stake and did not abuse its discretion in awarding preliminary

injunctive relief to Norfolk Southern. Accordingly, we will affirm.




                                             7
