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DesJardien v. Strasburg Assocs.

ELR Citation: 16 ELR 20550
Nos. No. 85-02663, (Pa. Ct. C.P. Chester Cty., 03/18/1986)

In a suit alleging that wastes at a local landfill contaminated groundwater and land, the court holds that the Pennsylvania Solid Waste Management Act provides no private cause of action; plaintiffs have standing under the Pennsylvania Storm Water Management Act; a state administrative enforcement proceeding does not bar a citizen's right to sue under the Pennsylvania Clean Streams Law; and plaintiffs have stated a nuisance cause of action against corporate officers, but not against lessors, generators, and haulers. The court first rules that the Solid Waste Management Act provides no private cause of action; the legislature intended only governmental enforcement of the Act. The court next rules that the duties imposed on landowners under the Storm Water Management Act are self-implementing in the absence of a county stormwater plan. Thus, plaintiffs' allegations that defendants breached these duties by causing increased stormwater runoff are sufficient to state a cause of action under the Act.

The court further rules that while a citizen may not sue under the Clean Streams Law if the Pennsylvania Department of Environmental Resources (DER) is diligently prosecuting the defendant, administrative enforcement does not bar a citizen suit. The court rules that plaintiffs may seek establishment of a fund to correct damages and compensate for injuries under the Clean Streams Law provision compelling compliance.

On the plaintiffs' nuisance claims, the court first holds that lessor defendants are only liable for nuisances on their property if they would be liable had they committed the acts themselves and knew or had reason to know of the lessees' activities. Since plaintiffs made no such allegations, the court holds that plaintiffs failed to state a nuisance claim against these defendants, but grants the plaintiffs 30 days to amend their complaint. The court then holds that no nuisance liability accrues against those defendants who generated or hauled waste deposited at the landfill, because they did not own, possess, or control the land, nor were they independent general contractors. The court next holds that plaintiffs have stated a nuisance claim against three corporate officers. While the court observes that it cannot hold the officers liable under an alter ego theory unless plaintiffs amended their complaint to allege that the corporate parties were set up as straw corporations, plaintiffs allegation that these defendants had control over the landfill is sufficient to state a nuisance claim under a participation theory of liability. The court also holds that plaintiffs have stated their nuisance claim with sufficient specificity. Although plaintiffs did not indicate the role of each individual defendant, the complex relationships among the various partnerships and corporations involved in the landfill's operation made it difficult for plaintiffs to obtain that information before discovery, and the defendants still have an adequate basis to formulate their defense.

The court rules that neither the Clean Streams Law nor the Storm Water Management Act entitles the plaintiffs to a jury trial since neither statute evolved out of a common law claim nor explicitly authorizes a jury hight. However, the court rules that in a nuisance action, any legal claim entitles plaintiffs to a jury trial, even if incidental to predominant equitable claims. The court also grants summary judgment to one defendant sued as a generator or hauler where no evidence suggested that the defendant generated or hauled any waste deposited at the landfill. Finally, the court holds that the existence of a pending federal suit does not require a stay because the state action was filed first and the cases involve different parties, rights, and available relief. Although it could grant a stay to enable the district court to assert pendent jurisdiction, the court declines to grant one since not all the defendants moved for a stay, but would reconsider after consultation with counsel.

Counsel for Plaintiffs
Donna Bailey McCarthy
Alfred A. Gollatz & Associates
11-13 S. High St., West Chester PA 19381
(215) 692-9116

Counsel for Defendants
Hershel J. Richman
Cohen, Shapiro, Polisher, Shiekman & Cohen
22nd Fl., PSFS Bldg., 12 S. 12th St., Philadelphia PA 19107
(215) 922-1300