PA Commonwealth Court Bars HSCA Property Value Diminution Claims

November 16, 2007
by MICHAEL GROSS
Client Alert Newsletter November 2007

In Diess v. Pennsylvania Department of Transportation, the Pennsylvania Commonwealth Court on September 13 held that claims for damages stemming from diminution in property value are not recoverable under the Hazardous Sites Cleanup Act ("HSCA"). In Diess, a group of Allegheny County homeowners sought to recover damages allegedly caused by PennDOT's use of fly ash and coal dust as road building materials adjacent to their properties. The fly ash and coal dust, which purportedly contained high levels of arsenic, were subsequently released during the collapse of an embankment and roadway caused by a water main break. In addition to various common law claims, the homeowners brought a statutory claim under HSCA for diminution in property values, contending that the fly ash contamination caused a reduction in the value of their properties. Rejecting the HSCA claims, the court concluded that recoverable "response costs" under HSCA do not include diminution in property value damages as such damages do not "assess, prevent, minimize or mitigate damage to public health." In further support of its opinion, the court noted that the General Assembly precisely described the types of damages recoverable under HSCA, and specifically did not include diminution in property value. Accordingly, the court declined to expand the definition of "response costs" under HSCA to include such damages.