                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-5-2009

FP Woll & Co v. Fifth and Mitchell
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1622




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                                                   NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                       _____________

                          No. 07-1622
                         _____________

                    F.P. WOLL & COMPANY,
                                 Appellant

                                v.

          FIFTH AND MITCHELL STREET CORPORATION;
             FIFTH AND MITCHELL STREET COMPANY;
     D.C. FILTER AND CHEMICAL, INC.; DONALD L. KAHLER;
     EATON LABORATORIES, INC.; MET-PRO CORPORATION;
                 PHILADELPHIA NATIONAL BANK;
                PNB COMMERCIAL FINANCE CORP.;
    LANSDALE FOREST PRODUCTS; HAJOCA CORPORATION;
                   TOOL SALES & SERVICE, INC.;
CNA INSURANCE COMPANY; CENTENNIAL INSURANCE COMPANY;
        JOHN DOES (1-100); ABC CORPORATIONS (1-100);
               CONTINENTAL CASUALTY COMPANY;
              VALLEY FORGE INSURANCE COMPANY;
              PENN AMERICA INSURANCE COMPANY;
   JETRONIC INDUSTRIES INC., trading as EATON CHEMICAL CO.


            Appeal from the United States District Court
               for the Eastern District of Pennsylvania
                     (D.C. Civil No. 96-cv-05973)
           District Judge: Honorable Mary A. McLaughlin


                      Argued March 24, 2009

      Before: RENDELL, AMBRO and JORDAN, Circuit Judges

                       (Filed: May 5, 2009)
Louis Giansante, Esq. [ARGUED]
Giansante & Cobb
63 East Main Street
Moorestown, NJ 08057
  Counsel for Appellant

Kevin J. Sommar, Esq. [ARGUED]
Sommar, Tracy & Sommar
210 South Broad Street
P.O. Box 227
Lansdale, PA 19446
  Counsel for Appellees
  Fifth and Mitchell Street Corporation,
  and Fifth and Mitchell Street Company

Jay D. Branderbit, Esq.
Theresa M. Mullaney, Esq. [ARGUED]
Kent & McBride
1617 John F. Kennedy Boulevard
Suite 1200
Philadelphia, PA 19103
  Counsel for Appellee
  Eaton Lab Inc.


                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       F.P. Woll & Company (“Woll”) appeals from the judgment of the District Court

granting it substantial relief against Fifth and Mitchell Street Company (“Fifth Street”),

the previous owner of Woll’s contaminated site, and Eaton Laboratories, Inc. (“Eaton”), a

former tenant that manufactured dry cleaning chemicals at the site. Woll contends that

the relief granted following a bench trial and a jury trial – an award of $346,958.00 and

                                             2
declaratory relief against the defendants for future response costs and contribution under

the Comprehensive Environmental Response Compensation and Liability Act

(“CERCLA”), 42 U.S.C. §§ 9607(a), 9613(f), and the Pennsylvania Hazardous Sites

Cleanup Act (“HSCA”), 35 P.S. § 6020.101 et seq., and against Eaton for similar costs

under the Pennsylvania Storage Tank and Spill Prevention Act (“STSPA”), 35 P.S. §

6021.101 et seq. – was not substantial enough.1 Woll urges that the Court should have

granted a monetary award for future clean-up costs, and should have permitted recovery

of the amount it would have received from an aborted sale of the site as an element of

damages. We, like the District Court, reject both of these claims. Woll also levels four

other attacks based on the District Court’s handling of other aspects of the case. We deal

with these summarily below.2

       Woll seeks reimbursement for future clean-up costs under the STSPA and the

HSCA.3 The District Court denied relief on the basis that future response costs were too

speculative to support a monetary judgment. We concur. Woll concedes that neither the



  1
   Settlements reached between Woll and other defendants totaling $370,000.00
exceeded Eaton and Fifth Street’s liability to Woll. Accordingly, although the Court
awarded Woll damages, no funds were actually paid to Woll by Fifth Street and Eaton.
  2
    The District Court had jurisdiction over the CERCLA claims under 28 U.S.C. § 1331
and supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(a). We
exercise jurisdiction over the judgment entered by the Court under 28 U.S.C. § 1291.
  3
    We review the District Court’s construction of the STSPA de novo. Salve Regina
College v. Russell, 499 U.S. 225, 231 (1991) (applying de novo review to district court’s
determination of state law).

                                             3
Environmental Protection Agency (“EPA”) nor the Pennsylvania Department of

Environmental Protection has indicated that further remedial action is necessary or

demanded payment from Woll for future response costs. A. 805. In fact, the EPA omitted

the Site from its inventory of possible groundwater contamination sources. A. 805-806.

Hence, Woll’s first argument is unavailing.4

       We also reject Woll’s contention that declaratory relief was inadequate. The entry

of a declaratory judgment ensured Woll prompt reimbursement of reasonable response

costs incurred in the future, while protecting Eaton and Fifth Street from an excess

judgment in the event further response costs were not incurred. Thus, we agree with the

Court’s grant of declaratory, rather than additional monetary, relief.

       Woll next contends that its claim for tortious interference with contract – based on

the failed sale of the site for $1.4 million, which was not completed due to discovery of

the contamination – gives rise to damages under the STSPA. We disagree. The

Pennsylvania Supreme Court has framed the damages recoverable under the STSPA as

“clean up and diminution in property value.” Centolanza v. Lehigh Valley Dairies, Inc.,

658 A.2d 336, 340 (Pa. 1995). Centolanza instructs that the STSPA, a “remedial statue,”

should be “liberally construed.” It allowed for the recovery of clean-up costs and




  4
   We reject Woll’s claim for natural resource damages under the HSCA on similar
grounds. The District Court properly concluded that, absent an agency determination that
Woll destroyed natural resources, these damages were too speculative to support
monetary relief.

                                               4
property diminution, but did not indicate those damages were exclusive. Indeed,

following Centolanza, lower Pennsylvania courts have also allowed for recovery of

personal injury damages. See Wack v. Farmland Indus., Inc., 744 A.2d 265 (Pa. Super.

Ct. 1999); Bruni v. Exxon Corp., 52 Pa. D&C 484, 2001 WL 1809819 (Com. Pls. 2001);

see also Krebs v. United Refining Co. of Pa., 893 A.2d 776, 786 (Pa. Super. 2006)

(confirming that private plaintiffs can bring STSPA claims for cleanup, diminution in

property value, and personal injury). Centolanza, however, made clear that the damages

recoverable under the STSPA only reach as far as necessary to promote the goal of the

Act – the prompt clean-up of spills. See id. Damages for diminution in property value,

which typically approximate lost proceeds, serve this purpose and are already recoverable.

The jury considered diminution in property value in determining its damages award.

Duplicating this element of damages would produce a windfall, not promote prompt

clean-up. We therefore reject this novel theory of damages.5

       Woll also levels four ancillary attacks on the District Court’s rulings. First, Woll




  5
    Woll also asks the Court to certify to the Pennsylvania Supreme Court the following
issues: (1) whether the STSPA or the HSCA authorizes recovery of lost proceeds from the
sale of real estate on the basis of tortious interference with contract; (2) whether the
HSCA authorizes recovery of damages for property diminution and future clean-up costs;
(3) whether the HSCA authorizes an award of attorneys’ fees; and (4) whether soil
contamination constitutes a “continuing trespass” for purposes of the statute of
limitations. Each of these issues concerns settled law, does not control the outcome of the
case, or does not present an issue of “substantial public importance” requiring “prompt
and definitive resolution” by the Pennsylvania Supreme Court. See 210 Pa. Code § 63.10;
3d Cir. L.A.R. 110.1. Accordingly, Woll’s request for certification is denied.

                                             5
contends that the Court improperly concluded that its common law claims were barred by

the applicable statute of limitations. Although Woll filed its complaint after the statute of

limitations expired, it insists that environmental contamination constitutes a “continuing

trespass” that tolls the statutory period. Woll’s argument is foreclosed by precedents

classifying soil and groundwater contamination as a permanent change rather than a

continuing trespass. See Dombrowski v. Gould Electronics, Inc., 954 F.Supp. 1006, 1013

(M.D. Pa. 1996) (“invasions such as water well contamination, waste, dumping, [and] soil

contamination from underground storage tanks . . . have all been said to have created a

permanent change in the land so as to constitute a permanent trespass.”); Tri-County

Business Campus Joint Venture v. Clow Corp., 792 F.Supp. 984, 996 (E.D. Pa. 1992)

(concluding that the depositing of hazardous waste, a “completed act at the time that the

property was conveyed,” constitutes a permanent trespass); see also Sustrik v. Jones &

Laughlin Steel Corp., 197 A.2d 44, 46 (Pa. 1964) (treating actions “effect[ing] a

permanent change in the condition of the land” as permanent trespasses). Thus, the

District Court’s dismissal of these claims was proper.

       Second, Woll contends that the District Court erred in rejecting a settlement

agreement executed by Woll and Harold Bixler, the former secretary and treasurer of

Eaton, which granted Bixler a release from suit in exchange for a monetary judgment

against Eaton and the assignment of Eaton’s rights against its insurer. Woll contends that

its contact with Bixler was permissible under the Pennsylvania Rules of Professional



                                              6
Conduct. However, Woll’s argument is not responsive to the two grounds on which the

Court actually rejected the settlement agreement – that Bixler lacked actual, apparent, or

implied authority to settle on behalf of Eaton, and that Bixler and Eaton possessed

conflicting interests, which rendered the agreement unenforceable against Eaton. Finding

the District Court’s conclusions reasonable, we decline to enforce the settlement

agreement.

       Third, Woll contends that the District Court erred in permitting Eaton’s expert, Mr.

Heydt, to opine on the types of damages available under the STSPA. At the jury trial, Mr.

Heydt testified that lost sales proceeds did not constitute a form of consequential damages

recoverable under the STSPA. Woll contends that this testimony exceeded Mr. Heydt’s

expertise as a forensic accountant. Even assuming that admission of the testimony was

error, Woll does not identify any prejudice therefrom. Because Judge McLaughlin

concluded that lost sales proceeds were not recoverable under the STSPA as a matter of

law, Mr Heydt’s testimony did not impact the jury determination. A new trial on this

ground is thus unwarranted.

       Fourth, Woll challenges the Court’s partial grant of attorneys’ fees. We lack

jurisdiction to decide this issue because Woll did not appeal the Court’s order regarding

fees, and the judgment appealed from did not implicitly or explicitly decide the issue. See

White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 451 n.13 (1982)

(“fee questions are not inherently or necessarily subsumed by a decision on the merits.”);



                                             7
see also Budinich v. Becton Dickinson and Co., 486 U.S. 196, 200 (1988) (holding that a

request for attorneys’ fees does not seek “reconsideration of matters properly

encompassed in a decision on the merits” and is thus “collateral to” and “separate from

the decision on the merits” (quoting White, 455 U.S. at 451-52)); In re Colon, 941 F.2d

242, 245 (3d Cir. 1991) (treating attorneys’ fees “apart from the merits for purposes of

appeal”).6

       For the foregoing reasons, we will AFFIRM the order of the District Court.




  6
  In its supplemental brief, Woll withdrew its argument that the dismissal of its
CERCLA claims was error.

                                             8
