NORFOLK SOUTHERN RAILWAY COMPANY et al v. PITTSBURGH & WEST VIRGINIA RAILROAD et al

Filing 265

MEMORANDUM ORDER denying Defendants' 261 MOTION TO CORRECT APRIL 22, 2015 JUDGMENT. Signed by Judge Terrence F. McVerry on 11/17/15. (mcp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)
NORFOLK SOUTHERN RAILWAY
)
COMPANY and WHEELING & LAKE ERIE )
RAILWAY COMPANY,
)
2:11-cv-1588-TFM
)
Plaintiffs,
)
)
vs.
)
)
PITTSBURGH & WEST VIRGINIA
)
RAILROAD and POWER REIT,
)
)
Defendants.
)
MEMORANDUM ORDER
Pending before the Court is a MOTION TO CORRECT APRIL 22, 2015 JUDGMENT
(ECF No. 261) filed by Defendants Pittsburgh & West Virginia Railroad (“PWV”) and Power
REIT, with a brief in support (ECF No. 262). Plaintiffs Norfolk Southern Railway Company
(“Norfolk Southern”) and Wheeling & Lake Erie Railway Company (“Wheeling & Lake Erie”)
have filed a response in opposition (ECF No. 264).

Accordingly, the motion is ripe for

disposition.
On April 22, 2015, the Court issued a Memorandum Opinion and Order which disposed
of the parties’ cross-motions for partial summary judgment. (ECF No. 232). In a separate yet
related filing, the Court also entered Judgment in favor of Norfolk Southern and Wheeling &
Lake Erie and against PGW and Power REIT on Counts One, Two, Five, Six, Seven and Eight of
Plaintiffs’ First Amended Complaint and the First, Second, Third, Fourth, Fifth, Sixth, Seventh,
Eighth, Ninth, Tenth, Eleventh, and Twelfth of Defendants’ Counterclaims. (ECF No. 233).
The Judgment included sixteen declarations that the Court derived, in part, from the
parties’ pleadings. The first of those declarations (“Paragraph One”) states as follows: “that

Defendants are prohibited from declaring Plaintiffs to be in default of the Lease or otherwise
interfering with Plaintiffs’ use of the Property.” (ECF No. 233 at 1) (emphasis added). In
contrast, Count One of Plaintiffs’ Complaint sought, in relevant part, a declaration “that the
Lease Agreement remains in full effect and that the Defendants are prohibited from taking
active default under the Lease Agreement or otherwise interfering with Plaintiffs’ use of the
property.” (ECF No. 1 at 18) (emphasis added).
Defendants now seek a so-called correction to the April 22, 2015 Judgment, suggesting
that the Court modify Paragraph One to read as follows: “that Defendants are prohibited from
declaring Plaintiffs to be in default of the Lease or from otherwise interfering with Plaintiffs’ use
of the Property with respect to the specific issues addressed in the Court’s Memorandum
Opinion dated April 22, 2015.” (ECF No. 261 at 3) (emphasis added). Defendants contend
that this correction is appropriate because Paragraph One “theoretically could be interpreted to
prohibit Defendants from declaring a future breach of the Lease on a ground that is unrelated to
the matters in dispute and was not addressed or decided as part of the cross motions for partial
summary judgment.” Id. at 2. For instance, in Defendants’ view, Paragraph One “could be
interpreted to preclude PWV from declaring Norfolk Southern to be in default of the Lease at
some time in the future if Norfolk Southern failed to pay rent to PWV as it is required to do
under the Lease.” Id. Defendants also submit that “Paragraph One could be interpreted such that
it effectively would strip away rights that PWV continues to possess under the Lease that are
unrelated to the matters in dispute in this litigation.” Id. From their perspective, the Court did
not intend to “issue a prospective ruling on a claim that is not yet ripe or to bar PWV from
seeking relief to which it is entitled under the Lease regarding issues that were not raised or
decided in this action.” Id.

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Plaintiffs oppose this motion.

In essence, Plaintiffs argue that Defendants seek a

substantive change to the Judgment rather than a correction to a clerical mistake, oversight, or
omission, which, in their view, the Judgment does not contain.
Federal Rule of Civil Procedure 60(a) provides, in relevant part, that “[t]he court may
correct a clerical mistake or a mistake arising from oversight or omission whenever one is found
in a judgment, order, or other part of the record.” As the United States Court of Appeals for the
Third Circuit has explained, Rule 60(a) “is limited to the correction of ‘clerical mistakes;’ it
encompasses only errors ‘mechanical in nature, apparent on the record, and not involving an
error of substantive judgment.’” Pfizer Inc. v. Uprichard, 422 F.3d 124, 129-30 (3d Cir. 2005)
(quoting Mack Trucks, Inc. v. Int’l Union, UAW, 856 F.2d 579, 594 n.16 (3d Cir. 1988)). In
doing so, our court of appeals has further instructed:
[T]he relevant test for the applicability of Rule 60(a) is whether the change affects
substantive rights of the parties and is therefore beyond the scope of Rule 60(a) or
is instead a clerical error, a copying or computational mistake, which is
correctable under the Rule. As long as the intentions of the parties are clearly
defined and all the court need do is employ the judicial eraser to obliterate a
mechanical or mathematical mistake, the modification will be allowed. If, on the
other hand, cerebration or research into the law or planetary excursions into facts
is required, Rule 60(a) will not be available . . . .
Id. at 130 (quoting In re W. Texas Mktg. Corp., 12 F.3d 497, 504-05 (5th Cir. 1994)); see also In
re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Products Liab. Litig., 200 F.
App’x 95, 103-04 (3d Cir. 2006) (“We have approvingly quoted the Fifth Circuit’s articulation of
the test for Rule 60(a)’s permissible application . . . .”) (citations omitted).
The Court finds that the Judgment does not contain a clerical mistake or a mistake arising
from oversight or omission that requires correction. To be sure, the April 22, 2015 Judgment
(including Paragraph One) relates only to those issues raised in Counts One, Two, Five, Six,
Seven and Eight of Plaintiffs’ First Amended Complaint and the First, Second, Third, Fourth,

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Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and Twelfth Counterclaims. And it was
entered in accordance with a seventy-six page Memorandum Opinion and Order of Court which
decided the parties’ rights, duties, obligations, etc. under the specific sections of the Lease that
were in dispute at that time based upon a particular set of facts. Nowhere does the Court limit or
preclude Defendants’ right to declare a default under the Lease if, for example, Norfolk Southern
fails to pay rent to PWV at some unknown time and for some unspecified reason in the future.
Of course, the Court would not do so. In other words, the Court will not “correct” the Judgment
based upon a hypothetical set of facts that have not (and perhaps will not) occur. Accordingly,
the motion is DENIED.
SO ORDERED, this 17th day of November, 2015.

BY THE COURT:
s/Terrence F. McVerry
Senior United States District Judge
cc:

All Counsel of Record
(via CM/ECF)

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