Habitants Against Landfill Toxicants v. City of York

No. 84-S-3820 (Pa. Ct. C.P. York Cty. May 20, 1985)

The court rules that people alleging injuries from toxic chemicals leaking into their property from a neighboring landfill may bring an action for a medical surveillance trust fund and cleanup injunction. The court initially denies defendants' motion to strike the complaint for failing to specify the plaintiffs, defendants, and relief covered by each count, concluding that the complaint is sufficiently clear for an equity court sitting without a jury. The court then rules that the Environmental Protection Agency (EPA) and Pennsylvania Department of Environmental Resources (DER) do not have primary and exclusive jurisdiction. Plaintiffs need not exhaust administrative remedies before the agencies, because the agencies could not provide the medical trust fund or injunction sought by plaintiffs. Nor is the action preempted under a Pennsylvania citizen suit provision barring such suits where federal or state agencies are prosecuting civil actions in court, because there is no indication that such actions are pending. The court also adopts the reasoning of a U.S. district court confronted with similar facts in denying primary jurisdiction because plaintiffs' action will not disrupt the agencies' authority and the subject matter does not require the agencies' special expertise. The court rules that the DER is not an indispensable party because plaintiffs do not allege that DER is liable or seek any relief from the agency.

The court next rules that plaintiffs' allegations of how the defendants operated a hazardous waste landfill that leaked toxics into surrounding property supports a claim that defendants had a duty of care to plaintiffs and breached that duty. The court also rules that plaintiffs properly seek establishment of a medical trust fund, rejecting defendants' argument that a later action at law to recover actual expenses would be adequate relief. Allegations that severe and latent injuries could result from the hazardous condition allegedly caused by defendants' landfill, if proven, would support a claim for medical surveillance. Another court has allowed an action for medical surveillance damages in a similar case, and an earlier decision of this court rejecting such damages can be distinguished because in that case the dangers of future injury from exposure to natural gas were purely speculative. The court next rules that plaintiffs have alleged the requisite elements for an injunction requiring defendants to abate the pollution from the landfill. The alleged injuries to their property are separate from those suffered by the general public.

The court rules that plaintiffs have no adequate remedy at law, have standing, and are not barred by laches. It rules that defendants have not properly pleaded the defense of immunity under the state Tort Claims Act and that the constructive notice given in the complaint is sufficient under Pennsylvania law. The court then rules that two paragraphs in plaintiffs' complaint indicating that EPA has included the landfill on a list of priority hazardous waste sites are relevant to the action and denies a motion for more specific pleading. Finally, the court grants defendants' motion to strike plaintiffs' claim for attorneys fees since there is no statutory grant of authority to impose fees in cases such as this one.

Counsel for Plaintiffs
Raymond L. Hovis
Stock & Leader
35 S. Duke St., York PA 17401
(717) 843-8871

Counsel for Defendants
J. Robert Katherman
20 W. King St., York PA 17401
(707) 846-4950

Peter D. Solymos
Kagen, Griffith, Strickler, Lerman & Solymos
2250 E. Market St., York PA 17402-2882
(717) 757-7602

Lillian M. Morgan
Laucks & Monroe
29 N. Duke St., York PA 17401
(717) 848-4900

[15 ELR 20937]

Buckingham, J.:

Opinion

This matter is before the court on preliminary objections filed by all five defendants to plaintiffs' equity action.

Nineteen (19) of the named plaintiff's are property owners in Springfield Township (Township), York County, whose land is next to or near a landfill used for residential, commercial and industrial waste from the City of York (City), the Township, and other areas. Plaintiff, Habitants Against Landfill Toxicants (HALT), is a Pennsylvania non-profit corporation whose members consist primarily of residents, including the other plaintiffs, living in the vicinity of the landfill. The complaint avers: that all plaintiffs have wells on their respective properties located within 2500 feet of the landfill; that the City leased or owned tracts of land in the Township for this landfill; that the City operated the landfill from 1962 to 1968; that the defendant York Wrecking Company (York Wrecking) operated the landfill from February 12, 1968 to February 11, 1970 as a contractor and agent of the City; that from April, 1968 to February 11, 1970, defendant Rite-Way Service, Inc. (Rite-Way) supplied labor and materials at the landfill through a contract with York Wrecking; that from February 12, 1970 to February 11, 1972, defendant Macke Staufer Vending Company (Macke) operated the landfill as a contractor and agent for the City; that defendant Rite-Way operated the landfill as a contractor and agent for the City from February 12, 1972 to January 31, 1975; and that the Township issued yearly permits to the City to dump waste at the landfill without requiring the permitee to comply with Township ordinances.

Plaintiff's allege some of the waste products disposed in the landfill are toxic and hazardous and capable of causing serious personal injuries, disease, or death to persons coming in contact with them. Plaintiffs also allege that defendants violated numerous laws inoperating the landfill and that their wells were contaminated because of defendants' negligent and tortious operation. Numerous chemicals, metals and other contaminants have been detected in the wells of nearby properties by both federal and state regulatory agencies coming from the landfill and a study is now being done of the site. Plaintiffs aver that they were unaware of the dangers posed by the landfill when they purchased their properties and because of these recent discoveries their real estate has become undesirable in the view of the public. Furthermore, plaintiffs contend that due to their exposure to this landfill, they have been put at an increased risk of future medical injuries which will cause them to incur future medical expenses.

In this equity action, plaintiffs are demanding one million dollars ($1,000,000.00) to be placed into a constructive medical trust fund to provide them with funds to monitor and detect all future medical problems caused by the landfill. Plaintiffs want this court to issue a permanent injunction requiring defendants to abate the nuisance, trespass and threat to the public health and environment that exists at their properties, located near the landfill. Further, plaintiffs want defendants to provide a continual source of clean water to them and any other relief the court may find proper. We note that there are two companion civil actions, Nos. 83-S-2549 and 83-S-2851, brought by most of these same plaintiffs against the same defendants for monetary damages.

All five defendants have filed numerous preliminary objections to plaintiffs' complaint. The first that we will address is a motion to strike the complaint filed by the City, Township, and York Wrecking, contending the complaint fails to conform with Pa. R.C.P. No. 1020(b). Defendants assert that plaintiffs did not set forth separate causes of action against the various defendants and the relief demanded against each is not stated in separate counts, nor are the counts headed by the names of the particular plaintiffs or defendants, as required by Pa. R.C.P. No. 1020(b). Although technically there is some merit to defendants' arguments, we shall deny their motion to strike the complaint on these grounds.

Pa. R.C.P. No. 126 provides:

The rules shall be liberally construed to secure the just, speedy and inexpensive deterrant action of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

This being an equity action, heard by a chancellor rather than [15 ELR 20938] a jury, we feel that no substantial right of the parties will be affected by not strictly following the rule. Warner Bros. Pictures Distributing Corp. v. Moffa, 33 D. & C. 2d 719 (1964). The business of the courts must be handled expeditiously and we feel that without a jury in this action we can prevent a blurring of the issues or any prejudice to the defendants. If anything, we feel a delay to this equity action may prejudice the plaintiffs and any handicap to the defendants, by the form of the pleading, is not insurmountable. Unlike the companion civil cases to this action, which contained six different causes of action, here we have only a request for a trust fund and an injunction, which this court will sort out without requiring a new complaint. Defendants' motion to strike based on Pa. R.C.P. No. 1020(b) shall be denied.

Next, we address the question of whether or not the Pennsylvania Department of Environmental Resources (DER) and the United States Environmental Protection Agency (EPA) have primary and exclusive jurisdiction over this matter. The City asserts that because plaintiffs have not exhausted their administrative remedies before these agencies, this equity action can not be maintained. We disagree and hold that these agencies do not provide adequate legal remedies to the plaintiffs and the matter is properly before this court. Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977).

A court may exercise jurisdiction where the administrative remedy is inadequate and incomplete. Borough of Green Tree v. Board of Property Assessments, 459 Pa. 268, 328 A.2d 819 (1974); Philadelphia Life Insurance Co. v. Commonwealth, 410 Pa. 571, 190 A.2d 111 (1963). The rule requiring exhaustion of all administrative remedies before seeking judicial redress is not intended to set up a procedural obstacle to recovery. The rule should be applied only where administrative remedies are adequate with respect to the alleged injury sustained and the relief requested. Feingold, supra. Most of the relief requested by plaintiffs is not available from these administrative agencies. Moreover, plaintiffs are not relying on a specific statutory remedy in which certain procedures must be exactly followed. Plaintiffs are relying on their common law rights for protection by this court.

This action is not prohibited by 35 P.S. § 691.601, which pertains to abatement of nuisances and suits to restrain violations of the Public Water Supply Act, as is contended by the City. 35 P.S. § 691.601(e) states:

No action pursuant to this section may be commenced prior to sixty days after the plaintiff has given notice in writing of the violation to the department and to any alleged violator, nor may such action be commenced if the department has commenced and is diligently prosecuting a civil action in a court of the United States or a state to require compliance with this act any rule, regulation, order or permit issued pursuant to this act, but in any such action in a court of the United States or of the Commonwealth any person may intervene as a matter of right.

The complaint contains no averments that DER or EPA is prosecuting a civil action in any state or federal court. Accordingly, this action can be maintained in this court.

This same issue of primary jurisdiction was considered in O'Leary v. Moyer's Landfill, Inc., 523 F. Supp. 642 [12 ELR 20239] (1981), where plaintiffs brought a civil suit against the owners and operators of a landfill. There, the court refused to defer the matter to DER holding that their exercise of jurisdiction does not disrupt DER's authority, nor is the subject matter beyond the ordinary competence of the court. We find this rationale persuasive and because the facts of O'Leary are similar to the one at hand, we adopt the reasoning in O'Leary to reject the City's contention that DER has primary jurisdiction.

Next, the City contends the complaint fails to conform with the law and rules of court because DER is a necessary party, and relief can not be granted without their participation in this action. The City incorrectly relies on the case of Ross v. Keitt, 10 Pa. Commw. 375, 308 A.2d 906 (1973), for this assertion. That case holds that a party is not indispensable to an action unless such action cannot conceivably be concluded and provide meaningful relief without that party becoming directly involved. In Kern v. Duquesne Brewing Company of Pittsburgh, 396 Pa. 279, 152 A.2d 682 (1959), the court held that parties against whom no redress is sought need not be joined. Based on these two cases, we see no reason to find DER to be an indispensable party. Plaintiffs have not alleged liability on the part of DER, nor are any damages or redress sought from DER by plaintiffs.

Next, we will address whether plaintiffs in their demand for equitable relief have sufficiently pled their request for a constructive medical trust fund to assure proper medical monitoring and detection as well as payment of future medical expenses. The defendants have demurred to this demand based on two contentions. First, that no duty existed on all defendants to the plaintiffs which would justify the creation of a constructive medical trust fund. Second, defendants claim that plaintiffs have an adequate remedy at law, thus barring the creation of a constructive trust. We reject both these contentions and shall deny the defendants' demurrer.

In Gee v. Eberle, 279 Pa. Super. 101, 420 A.2d 1050 (1980), the court held that under a constructive trust theory there must be an identifiable res, that is, a debt, duty or obligation owing by one person to another. In this case we find that plaintiffs have more than met their burden to allege a duty and breach thereof by all defendants. Plaintiffs allege how each defendant was involved in the ownership and operation of the landfill, that toxic and hazardous waste was dumped at the site, that during the time defendants were in control certain chemicals were allowed to leak into surrounding properties, and this has created a hazardous health situation to all plaintiffs. Duty in tort law is predicated on the relationship between the parties in which one party can become responsible for harm caused to another. Dumanski v. City of Erie, 348 Pa. 505, 34 A.2d 508 (1943). In this case we have no hesitation to find that due to the relationship of the parties and the alleged acts of defendants, there exists a duty and breach thereof by defendants.

Secondly, defendants contend the equitable relief of a constructive medical trust fund should be denied because an adequate remedy at law exists. Such remedy, defendants assert, is the future availability to plaintiffs to bring an action at law to recover their medical costs. We disagree with defendants that this is a complete and adequate remedy at law.

Many of the plaintiffs aver in the complaint that DER has advised them not to use their water supply for human consumption because it has been contaminated by hazardous substances emanating from the landfill. Furthermore, the actions of DER and EPA show that the landfill has created a dangerous and hazardous situation, the effects of which may be severe and latent injuries to the plaintiffs. We think at this point plaintiffs have sufficiently alleged facts to support a constructive trust and the demurrer will be denied. Of course, plaintiffs still bear the burden at trial to prove these allegations with sufficient testimony. They must show the potential for severe and latent injuries, and the need for early detection and treatment. We are conscious of the difficult legal barriers plaintiffs would have to overcome if medical problems are diagnosed in the future and they are forced to bring a legal action at that time. Plaintiffs may be found to have injuries caused by defendants but may be unable to get proper compensation. Moreover, plaintiffs may now be able to show the need for on-going medical monitoring for detection at the earliest possible time.

We find persuasive the case of Ayers v. Jackson Township, 189 N.J. Super. 561, 461 A.2d 184 (1983), cited by plaintiffs. Ayers also involved a landfill in which toxic wastes contaminated plaintiffs' well water. The court held that the residents could recover from defendant the cost of medical surveillance required in the future to properly diagnose any disease they might sustain. In so holding, the court stated:

Damages may be recovered for the prospective consequences of a tortious injury (cite omitted). It is not the reasonable probability of whether plaintiffs will suffer cancer in the future that should determine whether medical surveillance is necessary. Rather, it is whether it is necessary, based on medical judgment, that a plaintiff who has been exposed to known carcinogens at verious levels should undergo annual medical testing in order to properly diagnose the warning signs of the development of the disease. If it is necessary, then the probability of the need for that medical surveillance is cognizable as part of plaintiffs' claim (cite omitted). If plaintiffs are deprived of any necessary diagnostic services in the future because they have no source of funds available to pay for the testing, the consequences may result in serious, if not fatal illness.

[15 ELR 20939]

Id. at , 461 A.2d at 190.

We also want to distinguish the case at hand from our recent holding in Anstine v. Columbia Gas of Pennsylvania, Inc., 98 York L.R. 111 (1984), where we denied plaintiffs' request for a constructive medical trust fund. In Anstine the plaintiffs made no allegations as to the dangers or possible future injuries that could result from exposure to natural gas and even admitted it was sure speculation. Here, however, plaintiffs have alleged the dangers due to exposure to toxic chemicals and how many of the plaintiffs have come in contact with these chemicals. At this stage of the suit, we think it would be unfair to plaintiffs to deny them the ability to show their need for a constructive medical trust fund. Accordingly, defendants demurrer to this requested relief shall be denied.

Next, defendants contend that plaintiffs' complaint fails to state a claim for injunctive relief because they have not suffered special damages which would entitle them, as private citizens to seek abatement of a public nuisance. Thus, they contend, plaintiffs do not have standing to seek such relief. Furthermore, defendants contend plaintiffs have an adequate remedy at law for money damages and through DER proceedings, so that injunctive relief must be denied. Again we disagree with defendants and shall deny their demurrers to plaintiffs' complaint.

In order to have standing to bring suit for the abatement of a public nuisance, plaintiffs must allege special damages to themselves, separate and of a different character than that suffered by the rest of the public. West Mount Airy Neighbors, Inc. v. Cottman Transmission, 67 D. & C. 2d 530 (1974).Our review of the complaint shows that plaintiffs have alleged a substantial physical harm to their properties which interferes with their right to the use and enjoyment of that property. This is a specialized injury separate and distinct from the public in general. Therefore, plaintiffs do have standing to seek the abatement of a public nuisance.

In order for a court to grant equitable relief to plaintiffs, the remedy available at law must be inadequate. Robinson v. Abington Education Association, 492 Pa. 218, 423 A.2d 1014 (1980). Here plaintiffs are requesting a constructive medical medical trust fund and an injunction to abate the nuisance and trespass, and to insure plaintiffs a clean and healthy environment. Money damages through an action at law will not provide a constructive trust, nor will it eliminate the leaking of chemicals from the landfill into plaintiffs' water supplies. And if we determine that an abatement is necessary, such a remedy is not available to the plaintiffs in an action at law. Nor can an agency like DER provide money damages or order the establishment of a constructive trust.

At this point in the proceedings, and based on what was alleged in the complaint, DER can not provide an adequate remedy for plaintiffs. The only DER action thus far, according to the complaint, has been an order on September 1, 1982 that the City perform a study of the landfill site and request the Township to restrict development in the area. Whether this will protect plaintiffs, at this point, seems unlikely. This court is unaware of the parties involved in the DER proceedings and what the status or outcome of such is, although we note that it will be nearly three years since a study was ordered and no further DER action has taken place. At this stage of the case, and without more information before us, we feel it would be patently unfair to plaintiffs to grant a demurrer now.

Defendants Macke, the City and the Township have alleged that plaintiff HALT does not have standing to maintain this action. They contend that HALT has not suffered harm of a kind different than that suffered by the general public and is not a real party in interest. We agree with defendants' assertion of the law but not to their application of it to the facts in this case.

A person who is adversely affected by the matter they are challenging, has standing to obtain a judicial resolution of this challenge. The "would-be aggrieved" party must have an interest which is pecuniary and substantial. The interest must be adversely affected in a way different than all other citizens wanting compliance with the law. Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). The complaint alleges facts that show individual members of HALT have suffered permanent and irreparable harm. This interest, we find, is pecuniary and substantial and HALT may maintain this action.

Next, defendants raise the affirmative defense of laches contending plaintiffs' claims are barred by this equitable doctrine. However, such a defense must be set forth in a responsive pleading under the heading of "New Matter." Pa. R.C.P. No. 1030. A determination by this court in addressing these preliminary objections that plaintiffs' cause of action is barred by laches would be premature. Hansel v. Hansel, 268 Pa. Super. 101, 407 A.2d 890 (1979). Accordingly, we will not address the issue of laches at this time.

The City and the Township both claim they are immune from this suit by virtue of the Political Subdivision Tort Claims Act, 42 Pa. C.S.A. § 8541 et seq. Again, such an affirmative defense must be raised in new matter and this court will not address the issue at the present time. Pa. R.C.P. No. 1030 states: "All affirmative defenses including . . . immunity from suit . . . shall be pleaded in a responsive pleading under the heading 'New Matter.'"

Next, the City contends the complaint does not indicate when, where, and how each plaintiff gave notice to the City of their intention to institute a civil suit. It is required under 42 Pa. C.S.A. § 5522(a), that any person who is about to commence a civil action against a government unit must give written notice to that agency of the impending suit within six months of the injury or accrual of the cause of action. Plaintiffs' complaint avers that proper written notice was given to the municipal defendants, but does not state when, where and how each plaintiff gave notice to the City. We find this to be irrelevant, however, because the allegations in the complaint show that the City had actual or constructive notice of the landfill and the problems associated therewith. This type of notice is sufficient under the statute. 42 Pa. C.S.A. § 5522(a)(3) (iii) states:

In the case of a civil action or proceeding against a government unit other than the Commonwealth government . . . (iii) Failure to comply with this subsection shall not be a bar if the government unit had actual or constructive notice of the incident or condition giving rise to the claim of a person.

All defendants have filed a motion to strike paragraphs 50 and 51 of plaintiffs' complaint because they claim it includes impertinent and prejudicial matters. Paragraphs 50 and 51 state:

"50. In 1982, the Environmental Protection Agency of the United States Government did a field investigation of the landfill site and issued a report.

51. On December 21, 1982, the Environmental Protection Agency announced the identities of its superfund sites pursuant to the Comprehensive Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. The York City landfill was among the named sites."

It is well settled that a motion to strike is available when a pleading contains impertinent matter. Pa. R.C.P. No. 1017(b)(2); Sample v. Econo-Car International Inc., 59 Lanc. L. Rev. 469 (1965). Generally the standard employed by the courts to determine whether matter is impertinent is whether it is relevant to the issues before the court. Berkebile v. Nationwide Insurance Co., 6 D. & C. 3d 243 (1977). Courts have cautioned, however, that the right to strike a pleading on the ground that it contains impertinent matter should be exercised sparingly. If the matter is neither injurious nor prejudicial to the other party, the pleading need not be stricken. Goehring v. Harleysville Mutual Casualty Co., 73 D. & D. 2d 784 (1976); Southeastern Pennsylvania Transportation Authority v. Philadelphia Transportation Co., 38 D. & C. 2d 653 (1965).

We find the facts alleged in these two paragraphs to be relevant to this case and should not be stricken. Our review of the complaint shows such facts are material and pertinent to the issues, and if proven at trial, can have a significant bearing on the outcome. The fact that the landfill was identified as a "superfund" site by the EPA tends to show the harm caused to the plaintiffs and their need for equitable relief. We are not moved by defendants' contention that these facts are prejudicial to them. The relevance of these two paragraphs to plaintiffs' case outweighs any possible prejudice. Defendants are merely attempting to shield themselves from relevant facts not favorable to their case. This we shall not allow.

All defendants have filed a motion for a more specific pleading contending the complaint is not sufficiently specific to enable them to prepare a defense. Similarly, the City and York Wrecking have also asserted that the complaint fails to allege the material facts on which this cause of action is based, pursuant to Pa. R.C.P. No. 1019. We will consolidate these two objections and dispose of them in the foregoing discussion.

[15 ELR 20940]

The case of Fromm v. Fromm, 42 D. & C. 2d 77, 84 (1967), sets forth the standard to be used when ruling on a motion for more specific pleading:

The only question under this rule is whether the complaint is sufficiently clear to enable defendant to prepare a defense or whether plaintiff's complaint informs defendant with accuracy and completeness of the specific basis on which recovery is sought, so that it may know without question upon what grounds to make a defense.

(Cites omitted.)

A more specific complaint will not be ordered where the information is as well known to the defendant as to the plaintiff. Martin Excavating v. Bunting, 62 Lanc. L. Rev. 155 (1969). Nor will a more specific complaint be ordered to develop matters which are essentially evidentiary. Totani v. Lansford-Coaldale Joint Water, 2 D. & C. 3d 143 (1975). This is especially so where the defendant has or should have more knowledge of the matter than the plaintiff. Charles v. Crestview Properties, 15 D. & C. 2d 568 (1957).

As to specific time periods, which defendants contend were not properly pled, the complaint sufficiently sets forth when each defendant leased or operated the landfill and when each plaintiff purchased their property. The complaint also gives the factual background which caused the harm to the plaintiff and how each has been affected. We find the pleadings have sufficiently put all defendants on notice as to what they will be called upon to meet at trial and what issues will be tried. It is only necessary for plaintiffs to plead ultimate facts and not evidentiary facts as defendants request. Rubino v. Walker, 56 D. & C. 2d 213 (1972).

Our review of the complaint finds it is sufficiently clear for defendants to prepare an answer. We are reluctant to delay this case any further by requiring an amended pleading when many of the facts lie as much with the defendants as with plaintiffs. We feel that any further information sought by defendants can be gained through discovery rather than requiring plaintiffs to submit an amended pleading. Defendants' objections shall be overruled and their motion for a more specific complaint shall be denied.

Lastly, the City and York Wrecking have filed motions to strike plaintiffs' claim for attorney's fees. Plaintiffs agreed that it has long been the law in Pennsylvania that there can be no recovery of counsel fees in the absence of express statutory authority for such. Smith v. Equitable Trust Co., 215 Pa. 413, 64 A. 591 (1906); Moore v. Walker, 28 D. & C. 3d 124 (1983). Plaintiffs' request that we review this rule in light of the circumstances presented by this case and the fact that the Pennsylvania Supreme Court has not reviewed this rule in seventy-nine (79) years. However, we shall decline this request and grant defendants' motion to strike plaintiffs' request for counsel fees.

An order will be entered in consonance with this opinion.

Order

AND NOW, TO WIT: This 20th day of May, 1985, defendants' motion to strike plaintiffs' request for attorney's fees is sustained. All other preliminary objections filed by defendants are denied. Defendants have sixty (60) days from the entry of this order to file their answers to plaintiffs' complaint.

An exception is granted to all parties.