DesJardien v. Strasburg Associates

No. 85-02663 (Pa. Ct. C.P. Chester Cty. March 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 thosedefendants 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

[16 ELR 20551]

Smith, J.:

Opinion

This case comes to us on several sets of Preliminary Objections and a Motion for Summary Judgment. We sustain in part and overrule in part, and grant summary judgment.

Plaintiffs, thirty-two residents surrounding the Strasburg Landfill in Newlin Township, bring this action under The Pennsylvania Clean Streams Law, The Pennsylvania Solid Waste Management Act, The Pennsylvania Storm Water Management Act and common law nuisance. They maintain that the Defendants have so acted in generating, transporting and storing waste at the Strasburg Landfill, and in constructing and operating and closing the Landfill as to contaminate their groundwater and surrounding land.

A brief chronology of Strasburg Landfill ["the Landfill"] is necessary here in order to understand this complicated situation. In December of 1973, Earle Hart [Hart], his brother, James Hart, and Alex Barry formed two limited partnerships,Strasburg Associates I [Strasburg I] and Strasburg Associates II [Strasburg II]¹ to purchase and hold two adjacent parcels totalling approximately three hundred (300) acres in order to build a landfill.² Strasburg I and Strasburg II formed a joint venture (formalized in an agreement in 1978) called Strasburg Associates [SA], under which name most of the business was conducted.

In October 1974, SA applied for a Solid Waste permit for a lined landfill. On August 15, 1975, the Pennsylvania Department of Environmental Resources [DER] issued SA solid waste management permit No. 101038 to run a twenty-two (22) acre landfill. The Landfill did not begin to run immediately due to issues raised by Newlin Township, concerned citizens and DER.³ SA was also short of funds to construct the Landfill.

Hart and his wife, Marion, formed a corporation called Eco-Waste, Inc. [Eco-Waste] in 1978 to enter a joint venture called Strasburg Landfill Associates [SLA] with Somerset Strippers of Virginia, Inc. [Somerset Strippers] and Newlin Corporation [Newlin]. Somerset, which held a 25% interest in SLA, is a Virginia corporation and a subsidiary of an excavation company called Buckley Company. Buckley Company is controlled by Defendant, Robert Buckley [Buckley]. Newlin has 25% interest in SLA and is controlled by Defendants, David Ehrlich [Ehrlich] and Richard Winn [Winn] and is presided over by Ehrlich. Eco-Waste controls the remaining 50% of S.L.A. SLA became the owner of the Landfill and leased it to SA to operate.

SA began accepting waste in 1979. When DER field inspectors examined the Landfill, they discovered several permit violations and in April, 1983 assessed civil penalties against SA for $53,025. In May, 1983, DER suspended SA's Solid Waste Permit and ordered SA to submit a Final Closure Plan, which would close the Landfill and correct the various defects.

Later, when DER found continuing leachate containing many highly toxic chemicals from the Landfill in DER's monitoring of water in the West Branch Brandywine Creek, it ordered SA, SLA, Newlin, Eco-Waste, Somerset, Hart, Ehrlich and Winn to monitor the groundwater and determine the extent of its contamination.

On April 19, 1985, Plaintiffs brought this action, to which various defendants have objected preliminarily and to which one Defendant has moved for summary judgment. We now address these Objections, and Motion.

I. Objections to Plaintiffs' Claims Under the Solid Waste Management Act

Defendants first object that no private right of action exists under the Solid Waste Management Act,⁴ ("SWMA").

This presents to us an issue of first impression. The only provision for private citizen action in the SWMA is § 615 which permits citizen intervention in actions brought by the Department of Environmental Resources. Unlike the Pennsylvania Clean Streams Law⁵ and the Pennsylvania Air Pollution Control Act⁶ which contain citizens suit provisions,⁷ no express provision exists for citizens suits in the SWMA.⁸

[16 ELR 20552]

The Legislative history of the SWMA reveals that the General Assembly wanted enforcement of the SWMA to be governmental. Three separate amendments were offered in the debates over the SWMA, all providing private causes of action for violations under the Act. All were rejected.⁹

As no private right of action exists, we dismiss all Counts¹⁰ under the SWMA.¹¹

II. Objections Under the Storm Water Management Act: Lack of Standing For Plaintiffs to Sue

Defendants next object that Plaintiffs have failed to state a cause of action under the Storm Water Management Act.¹² They argue that there are no allegations of injury due to increased quantity, velocity or direction of stormwater runoff.

Before we address the adequacy of the allegations in the complaint, we must determine the duties and standards set by the Storm Water Management Act.

The duties of a landowner under the Act are contained in § 13:

Any landowner and any person engaged in the alteration or development of land which may affect storm water runoff characteristics shall implement such measures consistent with the provisions of the applicable watershed storm water plan as are reasonably necessary to prevent injury to health, safety or other property. Such measures shall include such actions as are required:

(1) to assure that the maximum rate of storm water runoff is no greater after development than prior to development activities; or

(3) to manage the quantity, velocity and direction of resulting storm water runoff in a manner which otherwise adequately protects health and property from possible injury.¹³

The Act also defines the basis on which a civil suit may be brought:

(b) Suits to restrain, prevent or abate violation of this act or of any watershed storm water plan, regulations or ordinances adopted hereunder, may be instituted in equity or at law by the department, any affected country or municipality, or any aggrieved person. Except in cases of emergency where, in the opinion of the court, the circumstances of the case require immediate abatement of the unlawful conduct, the court may, in its decree, fix a reasonable time during which the person responsible for the unlawful conduct shall correct or abate the same. The expense of such proceedings shall be recoverable from the violator in such manner as may now or hereafter be provided by law.

(c) Any person injured by conduct which violates the provisions of Section 13 may, in addition to any other remedy provided under this act, recover damages caused by such violation from the landowner or other responsible person.¹⁴

Plaintiffs have referred to, and our research has uncovered no watershed storm water plan for Chester County. Furthermore, DER's Storm Water Management Guidelines and Model Ordinance were approved by the General Assembly on May 14, 1985, a month after the Complaint was filed.¹⁵

The question that immediately presents itself to us is whether § 13, imposing duties on plaintiff landowner is self implementing absent a county watershed stormwater plan.

Section 13 requires a landowner to institute "measures" which have two minimum requirements. First, the landowner must act consistently with the provisions of the county plan and not cause injury to health, safety or property.¹⁶ Secondly, either he shall assure that the maximum stormwater runoff does not increase after development, or he shall manage the quantity, velocity and direction of this stormwater so to protect health and property from injury.

From this reading of the Act, the absence of a stormwater plan does not free a landowner from the proscriptions of § 13. Making § 13's mandate dependent on the existence of a county plan would frustrate the clear intent of the legislature "to preserve to the maximum extent practicable natural storm water runoff regimes and natural course, current and cross-section of water of the Commonwealth; and to protect and conserve ground waters and groundwater recharge areas." § 3 (2), Pa. Stat. Ann. Tit. 32 § 686.3 (2). Rather, the additional minimum requirement of consistency with a county stormwater plan merely fulfills the General Assembly's policy that management of stormwater be comprehensive. See § 3 (2), Pa. Stat. Ann. Tit. 32 § 680.3 (2). The lack of a county stormwater plan only relieves the landowner of the duty to act consistently with the plan.

Having established the duties of landowners, we now examine the Complaint to determine if it contains allegations of breaches of these duties. Plaintiffs allege that the construction of the landfill involved substantial alteration of the land.¹⁷ They further allege that the cover materials around the landfill have not been adequately revegetated (Paragraph 53) and that the landscaping has been faulty (Paragraph 57) so that stormwater runoff has increased in volume and velocity and caused erosion and flooding on the properties surrounding the landfill (Paragraphs 54, 55). Although they omit any detailed information, Plaintiffs have stated a threat to their health and safety as a cause of action under the Storm Water Management Act. We therefore overrule Defendants' Preliminary Objections to Counts under the Storm Water Management Act.

III. Objections to Plaintiffs' Claim Under the Clean Streams Law

Defendants next argue that Plaintiffs are barred from bringing any action against them under the Clean Streams Law, because DER has issued a civil penalty assessment and enforcement order against SA, and a third order against SA, SLA, Newlin, Eco-Waste, Somerset, Hart, Ehrlich and Winn. They argue that this DER action is equivalent to diligent prosecution in a court.

Citizens have a private right of action under Section 601(c) of the Clean Streams Law.¹⁸ This right is qualified under Section 601(e) which provides:

(e) No action pursuant to this section may be commenced [16 ELR 20553] . . . 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 or 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.

Pa. Stat. Ann. Tit. 35 § 691.601(e). (emphasis added).

A canon of statutory construction is that the plain meaning of a word should be utilized in reading legislation. 1 Pa. C.S. § 1903. The common usage of "court" is for a tribunal in the judicial branch of the government. In Department of State v. Spano, 1 Pa. Commw. 240, 274 A.2d 563 (1971), the Pennsylvania Human Relations Commission contended that it could introduce into evidence records of the Commission's proceedings as records of a "court of competent jurisdiction." The Appellant argued that the evidence was improperly admitted under the statutes because the Commission was not a court. The Commonwealth Court wrote:

While many administrative agencies make decisions which are judicial in nature . . . we know of no authority . . . that such power affords them the stature of a court. Absent a clearly expressed contrary legislative intent as to a different meaning, the word "court" as contained in a statute can only mean one within the judicial structure of the government or a judge thereof, and cannot include an agency of the executive branch simplebecause it possesses quasi-judicial powers.

1 Pa. Commw. at 245, 274 A.2d at 566.

Furthermore, the term "civil action" clearly describes a suit before a judicial body. See Pa. R.C.P. No. 1001. As stated in Spano, supra, the legislature must clearly show its intent to expand the meaning of the word "court."

The purpose of subsection (e) is apparent when subsections (e) and (c) are read together. Subsection (c) provides that:

Any person having an interest which is or may be adversely affected may commence a civil action of his own behalf to compel compliance with this act or any rule, regulation, order or permit issued pursuant to this act . . . against any other person alleged to be in violation of any provision of this act or any rule, regulation, order to permit issued pursuant to this act. (emphasis added).

Subsection (e) also contemplates that a DER order has been given. Under (c) and (e) one of two procedures is open to the private citizen to enforce that order: (a) an independent suit, or (b) an intervention in a suit brought by DER. The citizen suit is designed to have private parties enforce all aspects of the Commonwealth's environmental protection framework. The so-called private attorney general under (c) is a supplement to DER's enforcement machinery. Once DER prosecutes, however, subsection (e) ensures that DER controls the litigation by transforming the private citizen into an intervenor, but still retaining "the salutary effect of citizen gadflies." Gaughman v. Bradford Coal Co., 592 F.2d 215 [9 ELR 20147] (3d Cir. 1979), cert. denied, 441 U.S. 961 (1979).¹⁹

Defendants refer us to Baughman which outlined a test determining whether an administrative enforcement proceeding constitutes a court proceeding, so as to bar a citizen suit under the Federal Clean Air Act. The primary criteria under the test, that the agency's tribunal have the power to grant relief substantially equivalent to that available to an agency in court, has been specifically rejected as irrelevant in Pennsylvania.²⁰ See Spano, supra, at 245, 274 A.2d at 566 ("the word 'court' . . . cannot include an agency of the executive branch simply because it possesses quasi-judicial powers.").²¹

The clear meaning of "court" in subsection (e) does not include DER's enforcement order. DER has instituted no action before a court, so Plaintiff's suit is not barred. We therefore overrule Strasburg's preliminary objections to the Counts under the Clean Streams Law.

IV. Objections to Plaintiffs' Claim for Damages Under the Statutes

Defendants next object to Plaintiffs' prayer for damages in their counts under the Clean Streams Law arguing that the relief requested is unavailable.²²

Section 601 permits suits "to compel compliance with this act or any rule, regulation, order or permit issued pursuant to this Act." The Complaint, in the Counts under the Clean Streams Law, prays for a "fund for the purpose for correcting any damage resulting from groundwater contamination, discharge of leachate and for compensating the Plaintiffs in this action for any damage which the monitoring may reveal that they have sustained as a result of defendants' illegal activities."

Quite logically, cleaning the groundwater, and removing pollutants from the groud will abate pollution. As Strasburg itself notes, DER has issued an enforcement order for Strasburg to institute corrective measures. The fund Plaintiffs seek to establish will clearly compel compliance with the Act as well as DER's order. We overrule this objection.

V. Objections to Plaintiffs' Claims Under the Common Law of Nuisance

A. Failure to State a Claim for Nuisance

1. S.L.A., Newlin and Somerset

Defendants SLA, Newlin and Somerset argue that they may not be held liable in nuisance, as they did not possess the landfill, but rather, SA, the lessee of the tract possessed it. They refer to Restatement (Second) of Torts § 837 which provides:

(1) A lessor of land is subject to liability for a nuisance caused by an activity carried on upon the land while the lease continues and the lessor continues as owner, if the lessor would be liable if he had carried on the activity himself, and

(a) at the time of the lease the lessor consents or knows or has reason to know that it will be carried on, and

(b) he then knows or should know that it will necessarily involved or is already causing the nuisance.

Restatement (Second) of Torts, § 837 (1977).

From the Complaint alone, there is not enough to establish a cause of action in nuisance on the part of SLA, Newlin and Somerset. The Complaint alleges that SLA owned the tract (paragraph 21) and leased it to SA (paragraph 22) and that SA operated the landfill (paragraph 23). Nowhere can we find, and Plaintiffs do not direct us to any allegations that at the time the lease was executed SLA, Newlin and Somerset knew or had reason to know that the activities alleged would be carried out.

Plaintiffs argue that it "strains credibility to suggest that moving Defendants Strasburg Landfill Associates, Newlin and Somerset were totally ignorant of Hart's activities under such circumstances." That may be so. However, Plaintiffs do not allege that SLA, Newlin and Somerset knew or should have known of the activity at the time of the lease and that a nuisance flowed from that activity. Hence, we sustain the objections to the nuisance claim against SLA, Newlin and Somerset, but give Plaintiffs thirty days to replead and remedy this deficiency.

2. Defendants Generators and Haulers

The Defendants, Generators and Haulers²³ argue that the [16 ELR 20554] Amended Complaint fails to state a cause of action in private nuisance against them in that there are no allegations of wrongdoing on their part. Furthermore, they argue that private nuisance requires that a party own, control or act upon the property from which the nuisance arose. As there is nothing in the Complaint alleging any ownership, control or action by them regarding the Landfill, the claims in private nuisance against them must be stricken.

First, we note that the negligence alleged could not pertain to Defendants Generators and Haulers. Paragraph 105 the Amended Complaint alleges that "Defendants" (without specifying which ones) improperly selected the Landfill site, improperly designed and maintained the Landfill and liner, improperly designed, maintained and operated the leachate monitoring and collection systems, improperly disposed of hazardous and toxic wastes, improperly monitored incoming waste, improperly kept records, improperly trained the Landfill staff, inadequately closed the Landfill, and failed to warn Plaintiffs of the hazards involved. Nowhere is there anything which states that the Generators and Haulers selected, designed, operated, monitored, closed or kept records of the Landfill.²⁴

Secondly, the Amended Complaint alleges "violation of Restatement of Torts 2d, Section 364, 370, 371, 821 A-F, 822, 823, 824, 825, 826, 827, 828, 830, 831, 832, and 834." (Original Complaint, Paragraph 111, Paragraph 107). Restatement §§ 364, 370 and 371 specifically speak of liability of possessors of land. It is neither alleged nor argued that Generators and Haulers possess the Landfill. Hence, these restatement sections do not apply to them.

Finally, Restatement §§ 822 and 834 provide liability for nuisance. The law of Pennsylvania provides that private nuisance is an unreasonable, unwarrantable, or unlawful use by a person of his own property which causes injury, damage, hurt, inconvenience, annoyance or discomfort to one in legitimate enjoyment of his reasonable rights of person or property. Waschak v. Moffat, 379 Pa. 441, 109 A.2d 310 (1954); Smith v. Alderson, 262 Pa. Super. 387, 396 A.2d 808 (1979); Hopkins v. Stepler, 30 Chest. 50 (1982), rev'd on other grounds and remanded, 315 Pa. Super. 372, 461 A.2d 1327 (1983).

What we must decide is whether one must own, possess or control the land from which the nuisance arises in order to be held liable in private nuisance.

There have been various attempts in the past to expand the scope of private nuisance beyond its original character. In Philadelphia Electric v. Hercules, 762 F.2d 303 [15 ELR 20554] (3d Cir. 1985), the purchaser of a piece of contaminated property sought damages in nuisance from the seller, in an attempt to expand the class of persons protected by private nuisance. The court refused to so expand nuisance, noting that private nuisance had been restricted in the past to exclude protection of tenants against lessors. The restriction was maintained because a landlord not in possession is liable for injuries resulting from conditions amounting to nuisance only to owners or occupants of nearby property or persons.

Nuisance has also been restricted to injury to the use and enjoyment of land, and has not gone to remedy personal injuries. See e.g., Note, The Absolute Nuisance Theory in Pennsylvania, 95 U. Pa. L. Rev. 781, 785-786 (1947).

The reason for these limitations of classes protected and injuries remedied stems from the role nuisance has played as a form of judicial zoning, ensuring the compatible uses of land of neighboring landowners. The natural/non-natural distinction drawn in examining the Defendants use of his land underscores the fact that a landowner must be reasonable considering his neighbors in how he controls his property. See Kenworthy The Private Nuisance Concept in Pennsylvania: A Comparison with the Restatement." 54 Dick. L.R. 109 at 116-118 (1959). As Prosser has written:

Most of the litigation as to private nuisance has dealt with the conflicting interests of landowners, and the question of the reasonableness of the defendant's conduct. The defendant's privilege of making a reasonable use of his own property for his own benefit and conducting his affairs in this own way is no less important than that the plaintiff's right to use and enjoy his premises.

Prosser, Handbook of the Law of Torts at 596 (1971).

In Philadelphia Electric Company v. Hercules, Inc., supra, the court wrote:

We believe that this result is consonant with the historical role of private nuisance law as a means of efficiently resolving conflicts between neighboring, contemporaneous land uses . . . . All of the very useful and sophisticated economic analysis of private nuisance remedies published in recent years proceed on the basis that the goal of nuisance law is to achieve efficient and equitable solutions to problems created by discordant land uses. In this light nuisance law can be seen as a complement to zoning regulations, see Beuscher & Morrison, Judicial Zoning Through Recent Nuisance Cases, 1955 Wis. L. Rev. 440, 452 . . . and not as an additional type of consumer protection for purchasers of realty.

Id. at 314.

Along with policy indicating that Defendants in private nuisance must possess, own or control real property, there is case law holding so. See Moran v. Pittsburgh-Des Moines Steel Co., 86 F. Supp. 255 (W.D. Pa. 1949), rev'd, 183 F.2d 467 (3d Cir. 1950). ("The nuisance doctrines . . . are held to have application in situations where the nuisance, whether it be absolute or qualified, is in control of the party who it is desired to hold responsible at the time the cause of action arose." 86 F. Supp. at 281); Whitely v. Mortgage Service Co., 337 Pa. 475, 12 A.2d 9 (1940) ("An owner of property is not liable for a nuisance maintained thereon by a tenant or licensee, unless he erected the nuisance and then leased the land, or leased or let it for the conduct of a business thereon, which, in its very nature, would work injury to a third person." Id. at 479, 12 A.2d at __).

In McQuilken v. A.R. Development Corp., 576 F. Supp. 1023 (E.D. Pa. 1983) in which an action in nuisance was brought to recover damages to Plaintiff's property caused by construction activity, the Philadelphia Housing Authority moved for summary judgment because it did not own, possess or control the property nor did it perform, direct, supervise or control construction activities. The Court held the PHA in under Restatement of Torts § 427 regarding the liability of independent contractors. The court held that an employer or contractor controlled the land, although they "farmed out" the work to others. "Under § 427B, ownership of the property upon which the nuisance is created is not determinative, nor is absence of control of work performed. An employer or contractor is held liable for "farming out" work which he knows, or has reason to know, will create a nuisance." Id. at 1033.

Thus, it is clear that one must own, possess or control the land, or must fall within the category of independent contractor.

Here, there is nothing that would hold in the generators and haulers named in the Complaint under the claim of nuisance. There is no allegation that they did own, control or possess the Landfill. Nor is there an allegation placing them under the heading "independent contractor." Thus, we sustain the preliminary objections of these defendants to the counts in nuisance, and thus discharge them from this case.

3. Ehrlich, Winn and Buckley

Defendants, Ehrlich, Winn and Buckley next object that there are no allegations in the Complaint which would hold them personally liable in nuisance, either as actual participants of the alleged wrongs or under an alter ego theory. They maintain that if any liability does exist, it only goes against the corporate entities of which Ehrlich, Winn and Buckley are stockholders and officers. Thus, we must examine the Complaint to see if there exist allegations to hold these three moving Defendants under either an alter ego or a participation theory.

(a) Alter Ego Theory

A corporate entity or personality will be disregarded even when owned by one person or family, only when the entity is used to (1) promote one's personal interest, (2) commit a crime, (3) disregard public policy, or (4) perpetrate unfairness and fraud. Kellytown Corp. v. Williams, 284 Pa. Super. 613, 426 A.2d 663 (1981); Harry [16 ELR 20555] Zuruld Comp. v. Workmen's Compensation Appeal Board, 49 Pa. Commw. 189, 410 A.2d 954 (1980).

The Third Circuit recently listed examples of artificial incorporation:

This court has stated that the appropriate occasion for disregarding the corporate existence occurs when the court must prevent fraud, illegality, or injustice, or when recognition of the corporate entity would defeat public policy or shield someone from liability for a crime. The court may only pierce the veil in specific, unusual circumstances, lest it render the theory of limited liability useless. Regarding the "alter ego" theory of veil piercing, we have endorsed the Fourth Circuit's list of facts that must be considered. In addition to gross under-capitalization, these factors are failure to observe corporate formalities, nonpayment of dividends, the insolvency of the debtor corporation at the time, siphoning of funds of the corporation by the dominant stockholder, nonfunctioning of other officers or directors, absence of corporate records, and the fact that the corporation is merely a facade for the operations of the dominant stockholder or stockholders.

American Bell Inc. v. Federation of Telephone Workers, 736 F.2d 879 (3d Cir. 1984).

These is not even a hint in the Complaint that Buckley's Somerset Strippers and Ehrlich's and Winn's Newlin Corporation are empty entreprenurial enterprises. We cannot hold these three Defendants in under an alter ego theory. However, as it is very possible that these entities were set up a straw corporations, aimed at limited liability and unlimited abuse of the Corporation Act, we give Plaintiffs thirty days to amend any deficiency in their Complaint on this issue.

(b) Participation Theory

An officer of a corporation who takes no part in the commission of the tort committed by the corporation is not personally liable to third persons for such a tort, nor for the acts of other agents, officers or employees of the corporation in committing it, unless he specifically directed the particular act to be done or personally participated, or cooperated therein. Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 470 A.2d 86 (1983).²⁵

Here, Plaintiffs allege that Erhlich, Winn and Buckley "had personal knowledge of, participated in and/or exercised control over the construction, operation and closure of the landfill." Paragraph 25.²⁶

Defendants argue that as their corporations were merely lessors of the Landfill, they may not be held liable. If their actions are direct, rather than through corporate channels, then the actual role of their organizations is irrelevant. They also argue that the solid waste management permit was issued to SA. The allegation to whom the permit was issued is irrelevant to this determination. A liberal reading of the allegations suggest that the three individual Defendants had control over the Landfill and personally participated in the tort, Hence, we overrule this objection.

b. Lack of Specificity

Defendants next complain that the Complaint fails to state the claim specifically as required in Pa. R.C.P. No. 1019. They argue that there are no allegations as to what part each Defendant played.

The Complaint as is provides Defendants with notice of what Plaintiffs intend to prove, and enables Defendants to prepare a defense. The role each particular defendant played in the actions alleged is within the exclusive domain of Defendants themselves. Both SA and SLA are joint ventures made up of small business entitles. Plaintiffs were mere local landowners who lack immediate access to corporate, partnership and DER records. It would be very difficult for them, absent discovery, to determine the inner workings of these organizations. Such evidence from which the facts Defendants demand may be inferred, need not and should not be alleged in the Complaint. Baker v. Rangos, 229 Pa. Super. 333, 324 A.2d 498 (1974).²⁷ Hence, this lack of specificity is not fatal. Furthermore, Plaintiffs are not obliged to identify the legal theories underlying their Complaint, as this is the burden of the court. Bartanus v. Lis, 332 Pa. Super. 48, 480 A.2d 1178 (1984). Hence, we overrule this Preliminary Objection of Efendants.

VI. Plaintiffs' Right to a Jury Trial

A. Jury Trial Under the Clean Streams Law and the Storm Water Management Act

Defendants argue that Plaintiffs are not entitled to a jury under the Clean Streams Law and the Storm Water Management Act, as these statutes are not derived from claims cognizable at common law.

Article I, § 6 of the Pennsylvania Constitution provides in part: "Trial by jury shall be as heretofore, and the right thereof remain inviolate." This means that the right to a jury exists where one was entitled to a jury when the State Constitution of 1776 was adopted.²⁸ William Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 173 A.2d 59, cert. denied, 368 U.S. 897 (1961). Jury trials are not available in proceedings created by statute, unless the statute so provides, or if that proceeding is derived from the common law as it existed in 1776. Appeal of Watson, 377 Pa. 495, 105 A.2d 576, cert. denied, 348 U.S. 879 (1954), reh'g denied, 348 U.S. 922 (1955); Friedman Appeal, 72 Pa. Commw. 274, 457 A.2d 983 (1983).

One is not entitled to a jury in a case based on the Pennsylvania Air Pollution Control Act, Commonwealth v. Wheeling-Pittsburgh Steel Corp., 22 Pa. Commw. 280, 348 A.2d 765 (1975), aff'd in part and remanded in part, 473 Pa. 432, 375 A.2d 320 (1977), cert. denied, 434 U.S. 969 (1977) or in an insurance license revocation proceeding conducted by the Commissioner of the Pennsylvania Department of Insurance, Friedman Appeal, supra, or for proceedings before the Public Utility Commission, Pennsylvania Public Utility Commission v. W.J. Dillner Transfer Company, 191 Pa. Super. 136, 155 A.2d 429 (1959).²⁹

The Clean Streams Law and the Storm Water Management Act are legislation of this century, not based upon common law causes of action, and are devoid of any provision for jury trial. Plaintiffs have no right to a jury under these statutes. Hence we sustain defendants' objection.

B. Jury Trial under the Claims for Nuisance

Defendants next object that Plaintiffs may not have a jury on their nuisance claims because the relief requested is primarily equitable.

In Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959)³⁰ [16 ELR 20556] the Supreme Court held that where both legal and equitable issues and presented in a single case, "only under the most imperative circumstances" can the right to a jury trial of legal issues be lost through prior determination of equitable claims. "The right to a jury trial cannot be made to depend upon the choice of words used in the pleadings." Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477-78 (1962). In Dairy Queen, the Complaint sounded in breach of contract and trademark infringement, but requested injunctive relief and money damages, termed an "acounting." The District Court found the claim for damages "incidental" to the equitable relief sought, and denied the defendant's demand for a jury trial. The Supreme Court held that the existence of a legal claim requires a jury if one is timely and properly demanded. "That holding, of course, applies whether the trial judge chooses to characterize the legal issues presented as 'incidental' to equitable issues or not." 369 U.S. at 473.

Thus, we must decide whether there exists in Plaintiffs' counts under nuisance an issue which may be characterized as legal. As such, we must determine whether nuisance is legal or equitable.

There is no question that nuisance was an action at law as of 1776. Professor Prosser writes:

The word [nuisance] first emerges in English law to describe interferences with servitudes or other rights to the free use of land. It became fixed in the law as early as the thirteenth century [and later became] the more convenient action on the case for nuisance, which became the sole common law action.

Prosser, Handbook of the Law of Torts (1971) at 572. Prosser also states "the great majority of nuisance suits have been in equity, and concerned primarily with the prevention of future damage." Id. at 576.

The characterization of nuisance apparently depends on the character of the remedy sought. Nuisance is legal when damages are requested³¹ and equitable when injunctive relief is sought.³² Here, although Plaintiffs pray for equitable relief, they also ask for damages in paragraphs m, o, p, q and r of the nuisance counts.³³

In Harbobusic v. General American Transportation Corporation, 209 F. Supp. 128 (W.D. Pa. 1962), the court was able to discern a tort action in the complaint alleging breach of confidential relationship and pirating of the plaintiff's invention. "[W]hile [a suit for breach of confidential relationship] may be brought in equity, and usually is, [it] may also be pursued at law and tried to a jury because it sounds in tort as well as assumpsit. Tort actions and contract actions are generally triable by a jury as a matter of right." Id., 209 F. Supp. at 129.

Here, the nuisance claim, because it sounds in law, entitles Plaintiffs to a jury. Defendants' argument that the legal claims are incidental to the main equitable thrust of the count is irrelevant. Dairy Queen, 369 U.S. at 470. The joinder of a prayer for equitable relief with a claim for legal relief to a legal claim cannot defeat an otherwise valid right to a jury trial. Amoco Oil Co. v. Torcomian, 722 F.2d 1099 (3d Cir. 1983). Thus, we overrule Defendants' objection to Plaintiffs' demand for a jury trial on the nuisance claims.

VII. Motion For Summary Judgment of AMF, Incorporated

Defendant, AMF, Inc. moves for summary judgment, arguing that there is no dispute of material fact.

Pennsylvania Rule of Civil Procedure 1035 provides that summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. It is well established that the moving party has the burden of showing that there is no genuine issue of material fact, and the record must be viewed in the light most favorable to the non-moving party. The non-moving party may not, however, rely merely upon the controverted allegations of the pleadings, but must set forth specific facts by way of affidavit, or in some other way as provided by the rule, demonstrating that a genuine issue exists. Ressler v. Jones Motor Co., Inc., 337 Pa. Super. 602, 487 A.2d 424 (1985).

The Complaint and Amended Complaint name AMF as a generator/hauler. However, the record contains no evidence that AMF either generated or hauled any waste deposited at the Landfill. The affidavit of Gary Seyler, an employee of AMF in charge of waste disposal, says that no records from AMF show disposal of AMF waste at the Landfill. David Ehrlich, Richard Winn, and Robert Buckley testified at deposition that they did not know of any waste produced or transported by AMF being deposited at the Landfill. Furthermore, Plaintiffs' counsel wrote that "[i]f that discovery also confirms that AMF did not deposit any waste in the Landfill, plaintiffs would not oppose motions for judgment on the pleadings or motions for summary judgment on behalf of AMF." AMF Motion for Summary Judgment, Ex. B. As Plaintiffs have not opposed AMF's Motion, we grant it.

We further note that AMF, as a generator/hauler like all the other Defendants Generators/Haulers, is not liable in nuisance, as there are no allegations of ownership, possession or control.

Hence, we grant AMF's Motion for Summary Judgment.

VIII. Pendency of a Prior Action

One of the Defendants argues that this action should be stayed because there is a similar suit pending in the Eastern District. They argue that the same parties, the same facts and the same relief are involved in both actions. The question thus raised is whether this action should be stayed by a prior pending action.

The basic test for lis pendens was stated thus:

A plea or former suit pending must allege that the case is the same, the parties are the same, and the rights asserted and the relief prayed for the same; and where the proof of the plea can be ascertained by an inspection of the record, the court will determine the question without a reference.

Procacine v. Susen, 301 Pa. Super. 392, 447 A.2d 1023 (1982); Hessenbruch v. Markle, 194 Pa. 581, 593, 45 A. 669, 671 (1900).

First, the federal action is not a prior action. This case was filed on April 20, 1985, and the federal case on May 17, 1985. Des-Jardien v. Strasburg Associates, No. 85-2081 (E.D. Pa.). Although this action was later amended to include additional defendants and claims, this has no effect on the priority of actions for purposes of lis pendens. An amendment to a complaint generally relates back to the original filing of the original complaint. The original complaint is thus treated as if it had been originally drawn in the form in which it appears as amended. An amended complaint relates back for the purposes of statutes of limitations, Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983) and for proper jurisdiction, Zalewski v. United Mine Workers, 7 Pa. D. & C 3d 231 (C.P. Northumberland, 1978). See 5 Standard Pennsylvania Practice 2d § 24:77, pp. 132-133 (1982). As an amended complaint does not remove the original from the record, the first Amended Complaint here relates back to the original of April 20, 1985, and thus predates the filing of the federal action.

Second, the parties in both actions are different. Today, we sustain the Preliminary Objections of Chem Clear, Inc., Delaware Container Corp., Sartomer Co., NVF, and Diamond Shamrock Corp. as well as grant summary judgment for AMF, Inc. Defendants have not informed us, nor does the record reflect that five of these six defendants have been dropped from the federal action.³⁴

Third, the rights asserted and relief requested differ. The federal [16 ELR 20557] action is brought under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (RCRA), the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (CERCLA), and the Clean Water Act, 33 U.S.C. § 1251 et seq., whereas this action is under state statutes and common law nuisance. Under RCRA for example, the Plaintiff may recover against any generator or transporter. 42 U.S.C. § 7002 (A)(1)(b). Such relief is not available under any claim brought here. See pp. 18-24. In order to be lis pendens, the whole effect of the second suit must be obtainable in the first. 2 Standard Pennsylvania Practice 2d § 12:16.

Despite the fact that the lis pendens objection fails, it is within our power to stay this action until the federal action is resolved. Radio Corporation of America v. Rotman, 411 Pa. 630, 192 A.2d 655 (1963). Here, the facts, parties, and circumstances are the same. The District Court would have pendent jurisdiction here, as both sets of claims "derive from a common nucleus of operative fact" and are such that one "would ordinarily be expected to try them all in one judicial proceeding." United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). The complexity of the case makes it prudent to have this case litigated in one forum. In fact, the federal action originally included all the claims brought here under pendent jurisdiction. Furthermore, there is little prejudice to Plaintiff in having this action stayed until the federal action is resolved.

We note that we should not encourage forum-shopping. See e.g. Camero v. McNamara, 222 F. Supp. 742 (E.D. Pa. 1963). Within a month after this action was commenced, Plaintiffs brought their action in federal court. They latter dropped from that suit all the claims brought here, and curiously argue to us now that the relief requested is not the same. However, since only one set of the multiple defendants has raised this issue, we hesitate to stay this action without further dialogue with all counsel. Accordingly, we will keep this last objection under advisement pending a conference with counsel.

Order

AND NOW, this 18th day of March, 1986, we Order the following:

(1) Defendants' Objections to all counts under the Solid Waste Management Act are sustained and all those counts are dismissed;

(2) the Objections to the counts under the Storm Water Management Act and the Clean Streams Law, and to claims for damages under those two statutes are overruled;

(3) the Objections of Strasburg Landfill Associates, Newlin Corporation and Somerset Strippers of Virginia to the claims under nuisance are sustained and Plaintiffs are given thirty (30) days to replead and remedy the deficiencies in these counts;

(4) the Objections of Ehrlich, Winn and Buckley are overruled; and Plaintiffs are given thirty (30) days to replead on an alter ego theory against these Defendants;

(5) the Objections of NVF, Chem Clear, Diamond Shamrock, Sartomer and Delaware Container to the counts under nuisance against them are sustained;

(6) all Objections regarding specificity are overruled;

(7) the Objections to a trial by jury on claims under the Storm Water Management Act and the Clean Streams Law are sustained; the Objections to a jury in nuisance are overruled;

(8) the Motion for Summary Judgment of AMF, Inc. is granted;

(9) counsel for Plaintiffs shall communicate with all other counsel and provide us with a suggested date for a conference regarding a stay.

1. James Hart left the partnership in 1976. Barry's general partner status was terminated in 1978. He remains a limited partner in both entities. Earle Hart is the only general partner.

2. 225 acres of the land are in Newlin Township; the remainder are in West Bradford Township.

3. See Newlin Township v. Commonwealth of Pennsylvania Department of Environmental Resources and Strasburg Associates (Environmental Hearing Board, February 16, 1979) rev'd in part, Strasburg Associates v. Newlin Township, 52 Pa. Commw. 514, 415 A.2d 1014 (1980). Finding of Fact Nos. 15, 16, 19. (The Commonwealth Court reversed in part, on the basis that Newlin Township lacked standing to challenge the issuance of the permit. This ruling was reversed in Franklin Township v. Commonwealth Department of Environmental Resources, 500 Pa. 1, 452 A.2d 718 (1982)).

4. Act of July 7, 1980, P.L. 380, No. 97, Pa. Stat. Ann. Tit. 35 §§ 6018.101 et seq.

5. 35 Pa. Stat. Ann. Tit. § 691.1 et seq.

6. Act of Jan. 8, 1960, P.L. 2119, as amended April 28, 1978, P.L. 202, No. 53, Pa. Stat. Ann. Tit. 35 §§ 4001 et seq.

7. The Clean Streams Law provides:

(c) Except as provided in subsection (e), any person having an interest which is or may be adversely affected may commence a civil action of his own behalf to compel compliance with this act or any rule, regulation, order or permit issued pursuant to this act against the department where there is alleged a failure of the department to perform any act which is not discretionary with the department or against any other person alleged to be in violation of any provision of this act or any rule, regulation, order or permit issued pursuant to this Act. Any other provision of law to the contrary notwithstanding, the courts of common pleas shall have jurisdiction of such actions, and venue in such actions shall be as set forth in the Rules of Civil Procedures concerning actions in assumpsit.

§ 691.601(c).

The Pennsylvania Air Pollution Control Act provides:

(f) Suits to abate such nuisances or suits to restrain or prevent any violation of this act may be instituted at law or in equity by any resident of the Commonwealth after thirty (30) days notice has first been served upon the Attorney General of the intention to so proceed. Such proceedings may be prosecuted in the court of common pleas of the county where the activity has taken place, the condition exists, or the public is affected, and to that end jurisdiction is hereby conferred in law and equity upon such courts. Except in cases of emergency where, in the opinion of the court, the exigencies of the case require immediate abatement of said nuisances, the court may, in its decree, fix a reasonable time during which the person responsible for the nuisances may make provision for the abatement of the same. The court may provide for the payment of civil penalty as specified in Section 9.1 of this act during the time when air pollution will continue under its decree. It shall not be necessary to the maintenance of such a suit by any resident of the Commonwealth that he shall prove that he has suffered or will suffer any personal loss or damage.

§ 10(f), Pa. Stat. Ann. Tit. 35 § 4010(f).

8. See O'Leary v. Moyer's Landfill, Inc., 523 F. Supp. 642 (E.D. Pa. 1981): "While the Solid Waste Management Act allows citizens to intervene in suits brought by DER . . ., no provision analogous to the Pennsylvania Clean Streams Act's citizen suit provision appears." Id. at 657, n. 34. See also Harnish, The Self-Help Approach to Environmental Protection or Power to the People Revisited, 86 Dick. L. Rev. 647, 653, n. 48 (1982); Katcher, Hazardous Waste Management Under Act 97, 86 Dick. L. Rev. 665, 688, n. 167 (1982).

9. See Pennsylvania House Journal, pp. 2154-2181 (October 29, 1979).

10. Counts 2, 6, 10, 14, 18, 22, 26, 30, 34, 38, 42, 46, 50, 54, 58, 62 and 66.

11. Plaintiffs have not raised, nor do we address the issue of whether under § 601, violation of the SWMA constitutes public nuisance per se. We merely address here whether an independent cause of action arises under the SWMA. For an interesting discussion of public nuisance, see Philadelphia Electric Company v. Hercules, Inc., 762 F.2d 303, 315-316 (3d Cir. 1985).

12. Act of October 4, 1978, P.L. 864, No. 167, Pa. Stat. Ann. Tit. 32 § 680.1 et seq.

13. Pa. Stat. Ann. Tit. 32 § 680.13.

14. Section 15(b) and (c); Pa. Stat. Ann. Tit. 32 § 680.15(b) and (c).

15. Under the Storm Water Management Act, each county is required to "prepare and adopt a watershed storm water management plan for watershed located in the county as designated by [DER]" by 1980. § 5, 32 P.S. § 680.5. The DER is required, inter alia, to study and research the causes, effects and hazards of storm water and methods for storm water management, to publish guidelines for storm water management and model storm water ordinances for use by counties and muncipalities and to provide technical assistance to counties and municipalities in implementing the Act. § 14, Pa. Stat. Ann. Tit. 32 § 680.14.

The DER's Guidelines and Model Ordinances have only been published in the last few months. The counties have therefore not been compelled to submit county plans. § 10, 32 P.S. § 680.10.

16. The legislative history of the Storm Water Management Act is silent regarding the precise meaning of § 13. Senate Journal, p. 144-152, February 28, 1978; House Journal, pp. 1490-1493, May 31, 1978; House Journal, pp. 3245-3260, September 25, 1978.

17. Plaintiffs incorrectly state in Paragraph 52 that Defendant landowners are under a duty to implement a control plan. The counties are required to implement a watershed storm water management plan. § 5, Pa. Stat. Ann. Tit. 32 § 680.5.

18. 35 Pa. Stat. Ann. Tit. § 691.601(c).

19. See generally Harnish, supra, Note 8.

20. The test was not applied in Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57 [15 ELR 20674] (2d Cir. 1985). There, the court held prosecution before an administrative agency is not equivalent to prosecution before a court.

21. Even if we were to accept the Third Circuit's Test, Plaintiffs' suit here would not be barred. A second criteria mentioned in Baughman is that the administrative procedures of the agency enforcement must be similar to those of a court. In Baughman, the court noted that citizen intervention was important in actions by the EPA in Federal Court. As no such intervention was provided by the Commonwealth's Environmental Hearing Board, the citizen could be "frozen out of the enforcement process." Though the Court chose not to decide whether lack of citizen intervention of right alone determined the question of agency actions constituting court proceedings, the Second Circuit, in Sierra Club v. SCM Corp., 572 F. Supp. 828, 830 [14 ELR 20183] (W.D.N.Y. 1983) cross appeal dismissed, 747 F.2d 99 (2d Cir. 1984), held that "[a] proceeding which lacks this fundamental right [of intervention] cannot . . . be deemed the equivalent of court action for purposes of Section 505 of the [Federal Clean Water] Act."

Here, as Strasburg admits, private citizens have limited input in administrative proceedings. See e.g. Title 25, Pennsylvania Code, § 21.62 (intervention is discretionary with the Environmental Hearing Board). Thus, this hurdle of the Baughman test is not met.

22. As we have dismissed the Counts under the Solid Waste Management Act, we need not address the objections to the claims for damages in those Counts.

23. Paragraph 3 of the Amended Complaint reads: "Defendants Chem Clear, Inc., Delaware Container Corp., Sartomer Co., NVF, AMF, Inc., Inland Pumping and Dredging Corp. and Diamond Shamrock Chemicals Company (hereinafter collectively referred to as 'generators and haulers') have generated and/or transported hazardous, industrial, residual and toxic wastes and other pollutants which were deposited in the Landfill and which are causing harm to the Plaintiffs and their property."

24. The allegations referring to the Defendants Generators and Haulers are as follows:

Paragraph 46 (Paragraph 37 of the Original Complaint): Defendant Generators and Haulers have generated the toxic and hazardous wastes described in the preceding paragraph and/or transported them to be deposited in the Landfill.

Paragraph 101: Defendant Generators and Haulers, in the generation, disposal an transportation of residual, hazardous, toxic and dangerous waste, have been engaged in abnormally dangerous ultra-hazardous activities. Defendant owners and operators, in the operation of the Landfill, have been engaged in abnormally dangerous and ultra-hazardous activities.

25. There is a distinction between liability for individual participation in a wrongful act and an individual's responsibility for any liability-creating act performed behind the veil of a sham corporation. Where the court pierces the corporate veil, the owner is liable because the corporation is not a bona fide independent entity; therefore, its acts are truly his. Under the participation theory, the court imposes liability on the individual as an actor rather than as an owner. Such liability is not predicated on a finding that the corporation is a sham and a mere alter ego of the individual corporate officer. Instead, liability attaches where the record establishes the individual's participation in the tortious activity. Wicks v. Milzoco Builders, Inc., 503 Pa. at 621, 470 A.2d at 89-90.

26. Although we are able to hold in Ehrlich, Winn and Buckley in under Paragraph 25, as having personally participating in the alleged tortious activity, there still is lacking the corporate connection which shows SLA knew it consented to the activity and knew that this would cause a nuisance:

27. Defendants refer to Oas v. Commonwealth,8 Pa. Commw. 118, 301 A.2d 93 (1973) for the proposition that the complaint must let defendants know what alleged action on their part was deemed to be a violation of the law. In that case, Plaintiff brought suit against the Commonwealth, the Department of Education, the Plaintiffs school district, the State Tax Equalization Board and the State Treasurer challenging generally the constitutionality of the method of financing Pennsylvania's public schools. The court sustained Defendants' Preliminary Objections for failure to conformto Rule 1019, not only because the complaint did not state what rights were violated, but also because "there [was] not one allegation in the entire complaint to which [a particular defendant] could make answer for her part in whatever violation of the law the plaintiffs believe she committed." Id. at 129, 301 A.2d at 99. The Defendants there were governmental authorities whose roles and actions were defined by law. The complaint there was also lacking any particular facts regarding any actions.

Here, the opening of the Landfill, the depositing of wastes, and the leaking of those wastes out of the Landfill all alleged to have been caused by Defendants' actions. The particular roles of each Defendant is beyond Plaintiffs' knowledge at present.

28. In Parker v. Childrens' Hospital of Philadelphia, 483 Pa. 106, 394 A.2d 932 (1978), 1790 was the date to which the right to a jury was traced. However, "[a]s 'heretofore' can be traced to the Constitution of 1776, that year should be used, but whether it refers to 1776 or 1790 is not important as there probably was no extension of the right of a trial by jury between those dates." Woodside, Pennsylvania Constitutional Law, at 143 (1985).

29. See generally, Woodside, Pa. Constitutional Law, at 142-148 (1985).

30. We have uncovered little case law in Pennsylvania appellate courts to aid us in our analysis of this issue; hence we examine Federal authorities for the construction of the analogous guarantee to a jury in civil cases of Pa. Const. Art. I § 6 contained in the Seventh Amendment.

31. "As in the case of any tort, the plaintiff may recover his damages [for nuisance] in an action at law." Prosser, supra, at 602.

32. "The power of a court of equity, in a proper case, to enjoin a nuisance is of long standing, and apparently never been questioned since the earlier part of the eighteenth century." Prosser, supra, at 603.

33. The prayer reads in part:

(m) Order Defendants to establish a fund for the purpose for correcting any damage resulting from groundwater contamination, discharge of leachate and for compensating the Plaintiffs in this action for any damage which the monitoring may reveal that they have sustained as a result of Defendants' illegal activities;

(o) Order Defendants to establish a fund for the purpose of compensating Plaintiffs for any illness which may in the future result from Defendants' illegal activities;

(p) Award Plaintiffs compensatory damages for the physical injuries, emotional and physical distress, destruction and diminution of property values, all suffered as a result of Defendants' illegal and unsafe activities, in an amount in excess of twenty thousand dollars;

(q) Award exemplary damages for Defendants' deliberate wanton and willful conduct in an amount in excess of twenty thousand dollars; and

(r) Award attorney fees, costs and such other relief as the Court deems appropriate.

34. AMF, Inc. has been dropped from the federal action.