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Fried v. Sungard Recovery Servs., Inc.

ELR Citation: 26 ELR 20500
Nos. No. 95-CV-0878, 900 F. Supp. 758/(E.D. Pa., 09/26/1995)

The court holds that it has subject matter jurisdiction over the claims of workers against their employers for alleged exposure to asbestos under the Clean Air Act (CAA), but not under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that the workers do not have standing under the Racketeer Influenced and Corrupt Organizations Act (RICO). The workers' claims for medical monitoring and hazard pay are claims for personal injury and not claims of injury to business or property, as required to have standing under RICO. The claim for hazard pay is at base a claim for emotional distress. The court next holds that the workers did not plead fraud on the part of their employers with sufficient specificity as Fed. R. Civ. P. 9(b) requires. The workers did, however, sufficiently plead a pattern of racketeering by alleging motive behind the alleged fraud. The court next holds that the worker's notice letter provided sufficient notice under CAA §304(b), because it set forth enough information to allow the U.S. Environmental Protection Agency (EPA) and the state to determine whether to initiate an enforcement action and to allow the employers to bring themselves into compliance. Also, notice was given well enough before the suit was commenced. The workers' allegation that the employers violated CAA §112 allowed the workers to commence the action without waiting the requisite 60 days. The court next holds that a material issue of fact exists regarding the CAA claims due to conflicting evidence and that the workers' complaint set forth adequate allegations of ongoing and continuing violations. The court then holds that it lacks jurisdiction over the workers' CERCLA claims. The workers gave inadequate notice under CERCLA, because they failed to satisfy 40 C.F.R. §374.2(a) by not providing two of the four people listed in the regulation with a 60-day pre-suit notice. Finally, the court holds that the Pennsylvania Workers' Compensation Act's exclusivity provisions ban the workers claims for hazard pay and medical monitoring. The workers are seeking extra payment to compensate them for the fear of catching a disease, which is not covered by workers' compensation. Also, because the workers do not allege that their employers intended to cause them injury in a personal sense, the intentional tort exception to the state law does not serve to remove immunity from the employers. Further, because the workers do not allege death or disability, the co-employee intentional tort exception is inapplicable.

Counsel for Plaintiffs
Mark R. Cuker
Williams & Cuker
1617 JFK Blvd., Philadelphia PA 19103
(215) 557-0099

Counsel for Defendants
Roger F. Cox
Blank, Rome, Comisky & McCauley
Four Penn Center Plaza
10th-13th Fls., Philadelphia PA 19103
(215) 569-5500