Commonwealth of Pennsylvania, acting by PA DEP v. Monsanto Co., Solutia Inc. and Pharmacia LLC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, acting :
by the Commonwealth of Pennsylvania :
Department of Environmental :
Protection and the Commonwealth of :
Pennsylvania Department of :
Conservation and Natural Resources, :
and the Pennsylvania Fish and Boat :
Commission, and the Pennsylvania :
Game Commission, :
Plaintiffs :
:
v. :
:
Monsanto Co., Solutia Inc., and :
Pharmacia LLC, : No. 668 M.D. 2020
Defendants : Argued: October 20, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION BY
JUDGE COVEY FILED: December 30, 2021
Before this Court are Monsanto Co.’s (Monsanto), Solutia Inc.’s
(Solutia), and Pharmacia LLC’s (Pharmacia) (collectively, Defendants) Preliminary
Objections (POs) to the First Amended Complaint (Complaint) filed by the
Commonwealth of Pennsylvania (Commonwealth), acting by and through the
Commonwealth’s Department of Environmental Protection (DEP), Department of
Conservation and Natural Resources (DCNR), Fish and Boat Commission (FBC),
and Game Commission (GC) (collectively, Plaintiffs), filed in this Court’s original
jurisdiction. After review, this Court sustains the POs in part and overrules them in
part.
Background1
Solutia and Pharmacia have succeeded to the liabilities of predecessor
Monsanto2 which, from 1929 to 1977, manufactured, marketed, sold, and distributed
approximately 99% of the polychlorinated biphenyls (PCBs) used in the United
States (U.S.) - often under the trade names Aroclor, Pydraul, and Turbinol.3 See
1
Because this matter is before this Court on POs, the facts recited are as represented in
Plaintiffs’ Complaint.
2
Solutia is a wholly-owned subsidiary of Eastman Chemical Company. See Complaint ¶
30. Pharmacia is a wholly-owned subsidiary of Pfizer, Inc., and is the successor to the original
Monsanto Chemical Company (Old Monsanto). See Complaint ¶ 31. Hence, Defendants
collectively refer to themselves in this litigation as Pharmacia.
“Following a merger transaction that closed in 2018, Monsanto is a wholly-owned
subsidiary of Bayer AG.” Complaint ¶ 29. “Old Monsanto operated an agricultural products
business, a pharmaceutical and nutrition business, and a chemical products business.” Complaint
¶ 32. Now, Monsanto operates Old Monsanto’s agricultural products business, Solutia operates
Old Monsanto’s chemical products business, and Pharmacia operates Old Monsanto’s
pharmaceuticals business. See Complaint ¶¶ 33-41. “Although Solutia assumed and agreed to
indemnify [Monsanto] for certain liabilities related to the chemical[] business, Defendants have
also entered into agreements to share or apportion liabilities, and/or to indemnify one or more
entities, for claims arising from Old Monsanto’s chemical business, including the manufacture and
sale of [polychlorinated biphenyls].” Complaint ¶ 38. In conjunction with Solutia’s Chapter 11
Bankruptcy, “Solutia, Pharmacia, and [] Monsanto entered into several agreements under which
Monsanto continues to manage and assume financial responsibility for certain tort litigation and
environmental remediation related to the chemical[] business.” Complaint ¶ 39. In Monsanto’s
last filing with the United States Securities and Exchange Commission before Bayer AG acquired
it, Monsanto reported: “Monsanto has liabilities established for various product claims. With
respect to certain of these proceedings, Monsanto has established a reserve [($277 million as of
August 31, 2017,)] for the estimated liabilities.” Complaint ¶ 41.
3
“Monsanto sold its PCB products for a variety of uses, including household uses. PCBs
were sold for use in paints, caulks, inks, dyes, lubricants, sealants, plasticizers, coolants, hydraulic
fluids, fireproofing, and industrial electrical equipment such as capacitors and transformers, among
other applications. Monsanto also manufactured and sold various products incorporating their
PCB formulations.” Complaint ¶ 9; see also Complaint Exs. 14-15.
Notably, Old Monsanto also manufactured Dichlorodiphenyltrichloroethane (DDT)
(another now infamous chlorinated hydrocarbon similar to PCBs) and, as early as the 1940s, had
2
Complaint ¶¶ 1, 3-4, 47, Complaint Exs. 14-15. “PCBs are either oily liquids or
solids, and are colorless to light yellow[, and t]hey have no known smell or taste.”
Complaint ¶ 44. PCBs “are toxic and dangerous synthetic[4] organic chemical
compounds” harmful to human and animal health, and the environment. Complaint
¶¶ 1, 3; see also Complaint ¶ 42, Complaint Exs. 1-13, 16-19. “PCBs do not burn
easily, are hydrophobic (i.e., they do not dissolve in water but rather cluster
together), and bio-accumulate and bio-magnify in living tissue.” Complaint ¶ 48.
Monsanto “acknowledged as early as 1937 that PCBs produce systemic
toxic effects upon prolonged exposure.” Complaint ¶ 3; see also Complaint Exs. 1-
13, 16-19. In the 1950s, Monsanto’s medical director declared: “[W]e know
Aroclors are toxic[,]” and advised workers not to eat lunch in Monsanto’s PCB
department. Complaint Ex. 4; see also Complaint ¶ 3, Complaint Ex. 5. Due to
PCBs’ proven toxicity and environmental persistence, “production and, with limited
exceptions, use of PCBs was prohibited in the [U.S.] in 1979, when the U.S.
Environmental Protection Agency ([]EPA[]) promulgated final regulations banning
PCBs under the Toxic Substances Control Act [of 1976] ([]TSCA[]), enacted by the
U.S. Congress in 1976.”5 Complaint ¶ 2.
Despite that Monsanto knew early on of dangers associated with PCBs,
and/or knew or should have known that PCBs “substantially persist in the natural
environment rather than break down over time[,]” Complaint ¶ 7; that they “would
researched and was aware that DDT was extremely toxic to human and environmental health. See
Complaint ¶¶ 102-108, 121.
4
There are no known natural sources of PCBs. See Complaint ¶¶ 1, 43.
5
15 U.S.C. § 2601-2697. Section 2605(e)(3)(A)(i) of the TSCA declares: “[N]o person
may manufacture any [PCB] after two years after January 1, 1977[.]” 15 U.S.C. §
2605(e)(3)(A)(i); see also Dep’t of Gen. Servs. v. U.S. Min. Prods. Co., 927 A.2d 717, 721 n.2 (Pa.
Cmwlth. 2007), aff’d, 956 A.2d 967 (Pa. 2008) (“The [TSCA] banned PCB manufacturing in the
United States.”).
3
inevitably volatilize and leach, leak, and escape their intended applications,
contaminating runoff during naturally occurring storm and rain events and entering
groundwater, waterways, waterbodies, and other waters, sediment, soils, and plants,
as well as fish and other wildlife[,]” Complaint ¶ 6; and “that PCBs bio-accumulate
and bio-magnify in animal tissue, including in fish tissue and human tissue[, and] . . .
pose[] an increasingly hazardous threat to the health of the Commonwealth’s
residents[,]” Complaint ¶ 8; see also Complaint ¶ 48, Monsanto nevertheless
continued to market and sell its products containing PCBs. See Complaint ¶¶ 9-10,
91-115. In September 1969, Monsanto formed an Aroclor Ad Hoc Committee, the
minutes of which reflect: “[W]hile ‘there is no practical course of action that can so
effectively police the uses of these products as to prevent environmental
contamination . . . [t]here are . . . a number of actions which must be undertaken to
prolong the manufacture, sale and use of these particular Aroclors as well as to
protect the continued use of other members of the Aroclor series.’” Complaint ¶ 117
(quoting Complaint Ex. 10); see also Complaint ¶¶ 112-130. Monsanto also issued
talking points for employees to address customer questions and concerns about
PCBs in light of the research, and to encourage the customers to use rather than
return their existing Aroclor stock because Monsanto did not want to take it back.
See Complaint ¶ 130, Complaint Ex. 16.
According to the Complaint, “[t]he ordinary and intended application
of Monsanto’s commercial and household PCB products . . . has resulted in the
release of PCBs into the Commonwealth’s air, waters, and soils, due principally to
the chemical compound’s well-known tendency to volatilize or redistribute itself
across different environmental media.” Complaint ¶ 84. PCBs entered the air,
waters, sediments, and soils during their ordinary and prescribed uses. See
Complaint ¶¶ 49, 84-88. Specifically, PCBs gradually escaped and dispersed from
their intended applications (e.g., in road paint or caulking, into the natural
4
environment due to the chemical compounds’ inherent tendency to volatilize (i.e.,
emit vapors), particularly when exposed to heat - such as when road paint or building
materials are exposed to the sun over time). See Complaint ¶¶ 49, 84. PCB vapors
traveled through the air, eventually settling in nearby soil, sediment, or waterbodies;
they were released by the grinding, scraping, and removal of caulking and other
construction materials that include PCBs. See Complaint ¶¶ 49-50, 84-88. PCBs
also entered the environment from spills or leaks during chemical transport or fires
in transformers, capacitors, or other products containing PCBs, and from waste
burning in municipal or industrial incinerators. See Complaint ¶¶ 51, 86, 88. PCB-
contaminated wastes were disposed of in the ordinary course in landfills, from where
they easily escaped, leached, and leaked into the surrounding environment. See
Complaint ¶¶ 52, 88.
Plaintiffs allege in the Complaint that, once in the environment, PCBs
do not break down readily and may remain for decades absent remediation. See
Complaint ¶ 53. In water, PCBs travel along currents and attach to bottom sediment
or particles and evaporate into air or settle into sediment, water, and groundwater.
See Complaint ¶ 54. In soil, PCBs combine with soil organic matter and remain for
many years, and negatively affect plants and microorganisms; they also harm the
whole soil biosphere, which leads to human exposure through incidental ingestion,
inhalation, or dermal contact. See Complaint ¶ 55. As a gas, PCBs can accumulate
in the leaves and above-ground parts of plants and food crops. See Complaint ¶ 56.
PCBs are absorbed by small organisms, fish, marine animals in water, by animals
that eat them, and eventually by humans. See Complaint ¶ 57. “Human health
effects associated with PCB exposure include, without limitation, liver, thyroid,
dermal, and ocular changes, immunological alterations, neuro-developmental and
neurobehavioral changes, reduced birth weight, reproductive toxicity, and [(liver,
biliary tract, intestinal, and skin (melanoma))] cancer.” Complaint ¶ 61; see also
5
Complaint ¶¶ 62-74. PCBs are also highly toxic to fish and wildlife. See Complaint
¶¶ 75-83.
In the Complaint, Plaintiffs assert that Defendants knew PCBs were
dangerous contaminants when they manufactured, marketed, sold, and distributed
their PCB products, but failed to warn and actively deceived regulators and the
public concerning their hazards. See Complaint ¶¶ 90-146. Plaintiffs allege that the
ordinary and intended use of Defendants’ PCB mixtures has resulted in widespread
PCB contamination in the Commonwealth. See Complaint ¶¶ 84-89. “Between
1929 and 1977, Defendants sold a large volume of commercial PCBs and PCB-
containing products to various customers, including retail and secondary
manufacturers, within and near the Commonwealth.” Complaint ¶ 148.
“Monsanto’s PCB mixtures and PCB-containing products were used in countless
applications within the Commonwealth and leached, leaked, off-gassed, and escaped
their ordinary and intended applications to contaminate the Commonwealth’s
waters, sediments, soils, air, and fish and wildlife.” Complaint ¶ 151. “Because
Monsanto’s PCBs are environmentally persistent, they continue to circulate in the
Commonwealth’s natural resources to this day.” Id. “The Commonwealth has
already taken significant (and costly) steps to address PCB contamination of surface
water bodies and other natural resources, but widespread contamination continues to
extensively damage the Commonwealth’s natural resources and poses current and
future threats to human health and the well-being of the Commonwealth’s
environment and economy.” Complaint ¶ 152. “Like other states, [the
Commonwealth] prepares water quality monitoring and assessment reports every
other year to satisfy its listing and reporting obligations under [Sections 303(d) and
305(b) of] the Clean Water Act [(CWA).]”6 Complaint ¶ 153. “The 2020 Draft
6
33 U.S.C. §§ 1313(d), 1315(b).
6
Pennsylvania Integrated Water Quality Monitoring and Assessment Report (“2020
Integrated Report”) identifies more than 1,300 miles of [Commonwealth] streams
and more than 3,600 of [Commonwealth] lake acres as PCB-impaired - that is,
impaired for one or more beneficial uses due to excessive PCB contamination.” Id.
“Like [Commonwealth] waters, [Commonwealth] soils, sediments, and air also
suffer PCB contamination.” Complaint ¶ 158.
In the Complaint, Plaintiffs specifically argue:
11. Monsanto’s PCBs now widely contaminate the
Commonwealth’s natural resources. Addressing this
contamination has (and will continue to) cost the
Commonwealth many millions of dollars - costs that ought
to be borne by Monsanto, not the Commonwealth and its
residents.
12. More than 1,300 miles of streams and more than 3,600
lake acres in the Commonwealth have been identified as
“impaired” - that is they do not satisfy the criteria for one
or more beneficial uses - because the PCBs in those
waterbodies exceed the Commonwealth’s water quality
standards. Pursuant to the [CWA][7] and [T]he [] Clean
Streams Law [(CSL)],[8] the Commonwealth’s water
quality standards protect “[f]ishing” as a protected,
statewide water use. The [f]ishing water use is defined as
the use of the water for the legal taking of fish for
recreation or consumption. [Sections 93.3 and 93.4 of
DEP’s Regulations,] 25 Pa. Code §§ 93.3 and 93.4. The
water quality standards for [f]ishing, promulgated under
the [CSL], have been approved by the [EPA] in
accordance with [Section 303 of the CWA] for protection
of the nation’s waters.
13. Relatedly, the Commonwealth has been forced to issue
stringent PCB-specific fish and waterfowl consumption
advisories, recommending that the public either not eat
certain fish and waterfowl species at all or limit fish
consumption to, for example, just 1 meal per month or 6
meals per year for fish taken from nearly 40 segments of
7
33 U.S.C. §§ 1251-1388.
8
Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§ 691.1-691.1001.
7
various [Commonwealth] rivers and creeks, to the
detriment of [the Commonwealth’s] subsistence and sport
fishers and the Commonwealth itself.
14. Plaintiffs have incurred and will continue to incur
significant costs seeking to combat the PCB contamination
attributable to Defendants. Indeed, [the Commonwealth]
spent significant funds, time, and effort developing or
contributing to the development and implementation of at
least [13] Total Maximum Daily Load ([]TMDL[]) plans
targeting PCB reduction in local waterbodies.
15. Plaintiffs also have incurred and continue to incur
costs to monitor and enforce compliance with PCB limits
and conditions contained in individual [CWA] and [CSL]
permits. These limits and conditions were specifically
included in discharge permits as a means of ensuring not
only that the Commonwealth’s water quality standards for
PCBs are met and maintained, but also to prevent pollution
and assist the Commonwealth in achieving the TMDL for
PCBs in Commonwealth waters.
16. Plaintiffs also spent considerable time, effort, and
money in PCB remediation and removal projects, and
restoration of damaged natural resources.
17. The Commonwealth’s residents and natural resources,
including its water bodies and water systems, have been
and continue to be impacted by PCBs manufactured,
marketed, distributed, and introduced into commerce by
Defendants, and Plaintiffs will be forced to incur
significant costs to combat this contamination, costs which
rightfully should be borne by Defendants.
Complaint ¶¶ 11-17; see also Complaint ¶¶ 147-258.
On March 1, 2021, Plaintiffs filed the Complaint against Defendants in
this Court’s original jurisdiction alleging causes of action for public nuisance (see
Complaint ¶¶ 259-276), trespass (see Complaint ¶¶ 320-324), design defect (see
Complaint ¶¶ 277-292), failure to warn and instruct (see Complaint ¶¶ 293-306),
negligence (see Complaint ¶¶ 307-319), and unjust enrichment (see Complaint ¶¶
325-327).
8
On April 1, 2021, Defendants filed the POs and supporting brief,
claiming that Plaintiffs lack standing to bring this action (PO 1, ¶¶ 16-32),9 and that
Plaintiffs’ causes of action for public nuisance (PO 2, ¶¶ 33-40), trespass (PO 3, ¶¶
41-45), design defect (PO 4, ¶¶ 46-54), failure to warn and instruct (PO 5, ¶¶ 55-56),
negligence (PO 6, ¶¶ 57-62), unjust enrichment (PO 7, ¶¶ 63-64), continuing
tort/harm (PO 8, ¶¶ 65-69), and damages (PO 9, ¶¶ 70-74) are legally insufficient.10
On May 21, 2021, Plaintiffs filed their answer opposing Defendants’
POs. On June 15, 2021, Defendants filed their reply brief in support of the POs. On
September 20, 2021, Plaintiffs filed their opposing brief.
Discussion
In ruling on preliminary objections, we must accept as true
all well-pleaded material allegations in the [complaint], as
well as all inferences reasonably deduced therefrom. The
Court need not accept as true conclusions of law,
unwarranted inferences from facts, argumentative
allegations, or expressions of opinion. In order to sustain
preliminary objections, it must appear with certainty that
the law will not permit recovery, and any doubt should be
resolved by a refusal to sustain them.
A preliminary objection in the nature of a demurrer admits
every well-pleaded fact in the complaint and all inferences
reasonably deducible therefrom. It tests the legal
sufficiency of the challenged pleadings and will be
sustained only in cases where the pleader has clearly failed
to state a claim for which relief can be granted. When
ruling on a demurrer, a court must confine its analysis to
the complaint.
9
Pennsylvania Rule of Civil Procedure (Rule) 1028(a)(5) authorizes Defendants to object
to the Complaint on the basis that Plaintiffs lack standing. See Pa.R.Civ.P. 1028(a)(5).
10
Rule 1028(a)(4) authorizes Defendants to object to the Complaint on the basis that
Plaintiffs’ public nuisance, trespass, design defect, failure to warn and instruct, negligence, unjust
enrichment, continuing tort/harm, and damage claims are legally insufficient. See Pa.R.Civ.P.
1028(a)(4).
9
Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (emphasis added;
citations omitted). “‘[C]ourts reviewing preliminary objections may not only
consider the facts pled in the complaint, but also any documents or exhibits attached
to it.’ Allen v. Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 2014).” Foxe v. Pa.
Dep’t of Corr., 214 A.3d 308, 311 n.1 (Pa. Cmwlth. 2019).
PO 1 (Lack of Standing)
Defendants argue that, with the limited exception of the
Commonwealth’s assertion of parens patriae for abatement of a public nuisance,
which does not confer substantive rights, neither the Commonwealth nor its agencies
have authority to bring this action under the other common law theories or for tort
damages as a function of its sovereign interest to protect the Commonwealth’s
citizens. Thus, they request that this Court dismiss all but Plaintiffs’ public nuisance
cause of action. Defendants also contend that Plaintiffs cannot invoke parens
patriae standing, yet seek damages to Commonwealth property in its proprietary
capacity.
Generally,
[i]n Pennsylvania, a party to litigation must establish as a
threshold matter that he or she has standing to bring an
action. Stilp v. Commonwealth, . . . 940 A.2d 1227 . . .
([Pa.] 2007). Standing in Pennsylvania is a jurisprudential
matter. City of Phila[.] v. Commonwealth, . . . 838 A.2d
566 . . . ([Pa.] 2003). In our Court’s landmark decision on
standing, [Wm. Penn Parking Garage, Inc. v. City of
Pittsburgh, 346 A.2d 269 (Pa. 1975) (plurality),] we
explained that a person who is not adversely impacted by
the matter he or she is litigating does not enjoy standing to
initiate the court’s dispute resolution machinery.
Markham v. Wolf, 136 A.3d 134, 140 (Pa. 2016) (footnote omitted).
The concept of ‘standing’ in its accurate legal sense, is
concerned only with the question of who is entitled to
make a legal challenge to the matter involved. . . .
10
Although our law of standing is generally articulated in
terms of whether a would-be litigant has a ‘substantial
interest’ in the controverted matter, and whether he has
been ‘aggrieved’ or ‘adversely affected’ by the action in
question, we must remain mindful that the purpose of the
‘standing’ requirement is to insure that a legal challenge is
by a proper party. . . . The terms ‘substantial interest’,
‘aggrieved’ and ‘adversely affected’ are the general, usual
guides in that regard, but they are not the only ones. For
example, when the legislature statutorily invests an
agency with certain functions, duties and
responsibilities, the agency has a legislatively
conferred interest in such matters. From this it must
follow that, unless the legislature has provided
otherwise, such an agency has an implicit power to be
a litigant in matters touching upon its concerns. In
such circumstances the legislature has implicitly
ordained that such an agency is a proper party litigant,
i.e., that it has ‘standing.’
Corman v. Nat’l Collegiate Athletic Ass’n, 74 A.3d 1149, 1160-61 (Pa. Cmwlth.
2013) (quoting Pa. Game Comm’n v. Dep’t of Env’t Res., 555 A.2d 812, 815 (Pa.
1989) (emphasis added)).
Here, Plaintiffs allege in the Complaint that, as trustees of the
Commonwealth’s public natural resources, the Commonwealth, DEP, and DCNR
have a duty to protect and preserve the Commonwealth’s public natural resources,
and to prevent and abate nuisances and hazards to the public health, safety, and
welfare, and to the environment. See Complaint ¶¶ 21-22. “Through [] DEP and []
DCNR, the Commonwealth also brings this action pursuant to its inherent parens
patriae authority to remedy an injury to its ‘quasi-sovereign interest’ in the physical
and economic health and well-being of a substantial segment of its population.”
Complaint ¶ 22. Plaintiffs further declare:
23. PCB contamination attributable to Defendants
constitutes injury to the Commonwealth’s natural
resources and other property, for which the Plaintiffs seek
damages and other relief, including on behalf of the
11
Commonwealth and on behalf of its residents as trustees
of the Commonwealth’s public natural resources, pursuant
to their police powers, and, through [] DEP and [] DCNR,
under parens patriae authority.
24. [] DEP is a department within the Executive Branch of
the Commonwealth government, vested with the authority
to protect the environment, prevent and remediate
pollution, and protect the public health, comfort, safety,
and welfare, pursuant to its police powers and its parens
patriae authority under the [] Hazardous Sites Cleanup
Act [(HSCA)], Act of October 18, 1988, P.L. 756 . . . , [as
amended,] 35 P.S. §§ 6020.101-6020[.1305].
25. [] DCNR is a department within the Executive Branch
of the Commonwealth government, vested with the
authority to conserve and sustain the Commonwealth’s
public natural resources for the use and enjoyment of
present and future generations, pursuant to its police
powers and its parens patriae authority under the
Pennsylvania Conservation and Natural Resources Act
[(CNRA)], Act of June 28, 1995, P.L. 89, No. 18, [as
amended,] 71 P. S. §§ 1340.101-1340.1103.
26. The [FBC] is an independent state agency with the
mission to protect, conserve, and enhance the
Commonwealth’s aquatic resources and to regulate and
provide fishing and boating opportunities within the
Commonwealth, pursuant to the [] Fish and Boat Code of
1980 [(Fish and Boat Code)], . . . 30 Pa.C.S. §§ 101-7314.
27. The [GC] is an independent state agency with the
mission to manage and protect wildlife and wildlife habitat
and to inform and educate the public on wildlife and safe
hunting practices within the Commonwealth, pursuant to
the Pennsylvania Game and Wildlife Code [(Game and
Wildlife Code)], . . . 34 Pa.C.S. §§ 101-2965.
28. [] Plaintiffs also bring this action against the
Defendants pursuant to their authority within [Section
204(c) of] the Commonwealth Attorneys Act [(CAA), Act
of October 15, 1980, P.L. 950, as amended], 71 P.S. § 732-
204(c).
Complaint ¶¶ 24-28.
12
Commonwealth Standing as Parens Patriae
This Court has held that “[t]he Commonwealth has parens patriae[11]
standing whenever it asserts quasi-sovereign interests,[12] which are interests that the
Commonwealth has in the well-being of its populace.” Commonwealth ex rel.
Corbett v. Citizens All. for Better Neighborhoods, Inc., 983 A.2d 1274, 1277 (Pa.
Cmwlth. 2009); see also Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,
458 U.S. 592, 607 (1982) (“[A] [s]tate has a quasi-sovereign interest in the health
and well-being - both physical and economic - of its residents in general.”).
One helpful indication in determining whether an alleged
injury to the health and welfare of its citizens suffices to
give the [s]tate standing to sue as parens patriae is
whether the injury is one that the [s]tate, if it could, would
likely attempt to address through its sovereign lawmaking
powers.
Alfred L. Snapp & Son, Inc., 458 U.S. at 607. “A quasi-sovereign interest must be
sufficiently concrete to create an actual controversy between the [s]tate and the
defendant[,]” which is determined based on the facts of each case. Id. at 602; see
11
“Parens patriae powers” refer[] to the “ancient powers of
guardianship over persons under disability and of protectorship of
the public interest which were originally held by the Crown of
England as ‘father of the country,’ and which as part of the common
law devolved upon the states and federal government.” In re
Pruner’s Est[.], . . . 136 A.2d 107, 109 ([Pa.] 1957) (citations
omitted).
In re Milton Hershey Sch. Tr., 807 A.2d 324, 326 n.1 (Pa. Cmwlth. 2002).
12
“Quasi-sovereign interests stand apart from . . . proprietary [(i.e., non-sovereign,
ownership)] interests[.]” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592,
602 (1982); see also Commonwealth ex rel. Pappert v. TAP Pharm. Prods., Inc., 885 A.2d 1127(Pa. Cmwlth. 2005). “[T]he right of a [s]tate to sue as parens patriae is not limited to suits to
protect only its proprietary interests; a [s]tate also may maintain an action parens patriae on behalf
of its citizens to protect its so-called ‘quasi-sovereign’ interests.” Maine v. M/V Tamano, 357 F.
Supp. 1097, 1099-100 (D. Me. 1973).
13
also Commonwealth ex rel. Pappert v. TAP Pharm. Prods., Inc., 885 A.2d 1127 (Pa.
Cmwlth. 2005) (TAP II).
Moreover, the U.S. Supreme Court has expressly held:
In [its quasi-sovereign] capacity[,] the state has an interest
independent of and behind the titles of its citizens, in all
the earth and air within its domain. It has the last word as
to whether its mountains shall be stripped of their forests
and its inhabitants shall breathe pure air.
Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907). The Pennsylvania Supreme
Court affirmed the Pennsylvania Superior Court’s holding that “the preservation of
the waters of the state from pollution, involving danger to health, is a proper subject
for the exercise of the police power, [and] cannot be seriously questioned.”
Commonwealth v. Emmers, 70 A. 762 (Pa. 1908). Certainly, that ruling applies to
preservation of state sediments, soils, air, fish, and wildlife.
Defendants concede that the Commonwealth has a quasi-sovereign
interest in the abatement of public nuisances to prevent injury or potential injury to
its citizens’ general health and well-being. See Defendants’ POs ¶ 16; Defendants’
Supporting Br. at 7-10; see also Alfred L. Snapp & Son, Inc. Moreover,
Pennsylvania law does not appear to wholly restrict other types of claims that the
Commonwealth may pursue as parens patriae, as long as the claims are brought to
protect the Commonwealth’s quasi-sovereign interest for its citizens’ well-being.
See TAP II (wherein this Court held that the Commonwealth had a quasi-sovereign
interest in seeking damages under the Unfair Trade Practices and Consumer
Protection Law,13 and that the Commonwealth stated sufficient causes of action for
unjust enrichment, fraud, and misrepresentation); see also Alfred L. Snapp & Son,
Inc., 458 U.S. at 604-05 (“Although there are numerous examples of [] parens
13
Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §§ 201-1-201-10.
14
patriae suits [to abate public nuisances], . . . parens patriae interests extend well
beyond the prevention of such traditional public nuisances.”).
Other jurisdictions have afforded states standing in parens patriae to
bring common law actions and/or for tort damages against companies that
purportedly contaminated the states’ natural resources. See State (of Maryland) v.
Exxon Mobil Corp., 406 F. Supp. 3d 420 (D. Md. 2019) (Exxon Mobil Corp.)
(wherein the U.S. District Court in Maryland denied demurrers, thereby permitting
the state to bring claims - as parens patriae, as trustee of the state’s natural resources,
and under Maryland’s environmental standing act - against 65 defendants for strict
liability (defective design, failure to warn, abnormally dangerous activity), public
nuisance, trespass (only for properties in the state’s possession), negligence, and
violations of various state environmental statutes, to redress alleged contamination
of the state’s waters by gasoline additive methyl tertiary butyl ether (MTBE) and to
seek damages and costs for testing, cleanup, monitoring, and restoration of the
state’s waters); Rhode Island v. Atl. Richfield Co., 357 F. Supp. 3d 129 (D.R.I. 2018)
(wherein the U.S. District Court in Rhode Island allowed the state to proceed with
common law tort claims, strict liability - failure to warn, nuisance, and trespass
actions against various oil and chemical companies for the widespread MTBE
contamination of the state’s waters); State (of New Hampshire) v. Exxon Mobil
Corp., 126 A.3d 266 (N.H. 2015) (wherein the state sued Exxon for negligence, strict
liability for design defect, and strict liability for failure to warn, seeking damages for
groundwater contamination caused by MTBE); Maine v. M/V Tamano, 357 F. Supp.
1097 (D. Me. 1973) (the U.S. District Court in Maine allowed the state and its board
of environmental protection to sue a vessel, her owners, captain, and various others
to recover damages incurred as a result of the discharge of approximately 100,000
gallons of oil into its waters because the state had sufficient independent interest in
15
its coastal waters and marine life to permit it to seek damages in its parens patriae
capacity). Although not binding on this Court,14 those decisions are persuasive.15
The Rhode Island Court summarized:
[The d]efendants[’] only original objection is that the
[s]tate lacks the possessory interest required to complain
of a trespass to polluted land and water it does not own.
See Restatement (Second) of Torts [(Second
Restatement)] § 157 (Am. Law Inst. 1965) (defining
“possession” for purposes of trespass liability). And
indeed the [s]tate is seeking damages not only for the harm
done to property it owns - which [the d]efendants admit is
not vulnerable to the present criticism - but for that to
private property as well. At first blush, the [s]tate’s bid to
base liability here on property it does not possess seems to
buck black-letter trespass law. The [s]tate outmaneuvers
this potential obstacle by bringing its case as parens
patriae.
14
[W]hile decisions of the [U.S.] Supreme Court interpreting federal
statutes are binding on this Court, the same is not true of decisions
by the lower federal courts. See Krentz v. Consol. Rail Corp., . . .
910 A.2d 20, 33 n.15 ([Pa.] 2006) (“The decisions of the [U.S.]
Supreme Court interpreting federal statutes are binding on this
Court.”); Hall v. Pa. Bd. of Prob. & Parole, . . . 851 A.2d 859, . . .
([Pa.] 2004). This does not mean we are compelled to ignore on-
point Third Circuit decisions or, for that matter, decisions of any
federal court of appeals, interpreting a federal statute. To the
contrary, such decisions in factually similar cases with persuasive
legal analysis may inform our disposition of the matter before us. In
re Stevenson, . . . 40 A.3d 1212, 1221 ([Pa.] 2012) (“The
Commonwealth Court was not incorrect in observing that the
pronouncements of the lower federal courts have only persuasive,
not binding, effect on the courts of this Commonwealth.”).
Cole v. Pa. Dep’t of Env’t Prot., 257 A.3d 805, 813 (Pa. Cmwlth. 2021). This Court relies on the
federal cases cited herein accordingly.
15
Despite their claims to the contrary, Defendants do not cite to any controlling case law
prohibiting the Commonwealth from seeking redress under other common law theories or for tort
damages as a function of its quasi-sovereign interest to protect the Commonwealth’s citizens from
harm related to PCBs.
16
A state may proceed [in] parens patriae to protect its
“quasi-sovereign” interests, which are the “set of interests
that the [s]tate has in the well-being of its populace.”
Alfred L. Snapp & Son, Inc. . . . , 458 U.S. [at] 602 . . . .
These interests include one in the integrity of a state’s
natural resources. See [id.] at 604-05 . . . . As parens
patriae, the [U.S.] Supreme Court has said, “the state has
an interest independent of and behind the titles of its
citizens, in all the earth and air within its domain.” . . .
Tenn. Copper Co., 206 U.S. [at] 237 . . . . “It has the last
word as to whether its mountains shall be stripped of their
forests and its inhabitants shall breathe pure air.” Id. In
Tennessee Copper Company, for example, the Court held
that Georgia could maintain an action against copper
companies whose operations polluted the state’s air,
despite the fact that Georgia owned “very little of the
territory alleged to be affected” and “elements that would
be relied upon in a suit between fellow-citizens as a
ground for equitable relief [were] wanting.” Id. at 237-
39[.]
Likewise in Missouri v. Illinois, [180 U.S. 208 (1901),]
where the Court allowed Missouri to sue Illinois for
leaving sewage to flow down the Mississippi River,
thereby “poison[ing] the water supply of the inhabitants of
Missouri.” [Id. at] 243, 248 . . . . “[I]f the health and
comfort of the inhabitants of a state are threatened,” the
[Missouri] Court wrote, “the state is the proper party to
represent and defend them.” Id. at 241 . . . . Closer in time
and place, the Rhode Island Superior Court found that the
[s]tate had parens patriae standing to pursue the lead-
pigment manufacturers in tort to avenge damage inflicted
by them on the state’s children. See State [(of Rhode
Island)] v. Lead Indus. Ass’n, [Inc.,] No. 99-5226, 2001
WL 345830, at *3-4 (R.I. Super.[, filed] Apr. 2, 2001)
(Silverstein, J.), rev’d on other grounds, 951 A.2d [428
(R.I. 2008)]. And even more recently, the New Hampshire
Supreme Court held that its state had “parens patriae
standing to bring contamination suits,” including for
trespass, “against the MTBE defendants on behalf of the
residents of New Hampshire.” New Hampshire v. City of
Dover, . . . 891 A.2d 524, 527, 530 ([N.H.] 2006). And for
that reason, the [New Hampshire Supreme C]ourt allowed
the state to recover damages for harm done by MTBE to
17
privately owned wells. New Hampshire v. Hess Corp., . .
. 20 A.3d 212, 215-16 ([N.H.] 2011).
Here, [Rhode Island] - properly proceeding as parens
patriae - may also protect its pseudo-sovereign interest in
the welfare of its citizens and integrity of its natural
resources. See Lead Indus. Ass’n, 2001 WL 345830, at
*4 (“[Q]uasi-sovereign interests include a state’s interests
in its citizens’ health, safety, and welfare as well as in a
healthful environment.”). One way it may do so is seeking
relief for the invasion of its citizens’ possessory interests
by MTBE in an action for trespass. See New Mexico v.
Gen. Elec. Co., 467 F.3d 1223, 1243 n.30 (10th Cir. 2006)
(noting that the parens patriae doctrine provides “a state
with standing to sue for damages to a broader range of
natural resources because it does not require state
ownership of such resources”). While possessory interests
are usually for individual owners themselves to protect,
when the harm to such interests is as widespread as alleged
in the [s]tate’s complaint, it counts as injury not just to the
affected individuals, but to the state as a whole. See
Missouri, 180 U.S. at 241 . . . (“[S]ubstantial impairment
of the health and prosperity of the towns and cities of the
state situated on the Mississippi river, including its
commercial metropolis, would injuriously affect the entire
state.”); see also Massachusetts v. Bull HN Info. Sys., Inc.,
16 F. Supp. 2d 90, 102 (D. Mass. 1998) (allowing
[Massachusetts] to bring parens patriae suit where it had
“alleged conduct that has potentially wide-spread impacts
. . . that [were] unlikely to be addressed fully if the
controversy [was] cabined in the realm of private
litigation”).
Rhode Island, 357 F. Supp. 3d at 143-44 (internal citations omitted).
Moreover, in examining whether a state can bring a parens patriae suit
for damages, the U.S. District Court in Maine observed: “[T]he plain implication to
be drawn from [the] cases is that, absent some substantive bar, the [c]ourt was
willing to allow damages to a [s]tate suing as parens patriae.” Maine, 357 F. Supp.
at 1101. In response to the defendants’ claims that the state’s interests were too
18
speculative to be reduced to money damages, the Maine Court held that was a matter
of proof to be met at trial, rather than a motion to dismiss. See id.Persuaded by the well-reasoned decisions cited above, and applying the
same rationale here, this Court holds that the Commonwealth has sufficiently
asserted its own quasi-sovereign interest in preserving its waters, soils, air, fish,
wildlife, and the health and well-being of its citizens in the Complaint and, thus, has
parens patriae standing to bring the instant action.
Commonwealth Standing as Trustee
Article I, section 27 of the Pennsylvania Constitution, known as the
Environmental Rights Amendment (ERA), declares:
The people have a right to clean air, pure water, and to the
preservation of the natural, scenic, historic and esthetic
values of the environment. Pennsylvania’s public natural
resources are the common property of all the people,
including generations yet to come. As trustee of these
resources, the Commonwealth shall conserve and
maintain them for the benefit of all the people.
Pa. Const. art. I, § 27. The ERA “establishes a common law trust, with the
Commonwealth as trustee and the public natural resources managed by the
Commonwealth as the corpus of the trust. The trustee is obligated to conserve,
maintain and manage the corpus of the trust for the benefit of the trust’s beneficiaries
- the people [-, ]” Marcellus Shale Coal. v. Dep’t of Env’t Prot., 193 A.3d 447, 470
(Pa. Cmwlth. 2018) (citations omitted), “including future generations.”16 Funk v.
16
Accordingly, the Pennsylvania Supreme Court recently confirmed that “income
generated from the revenue streams [from use of the trust assets] must be returned to the corpus as
a matter of trust law[,]” and may not be diverted to the General Fund for non-trust purposes. Pa.
Env’t Def. Found. v. Commonwealth, 255 A.3d 289, 314 (Pa. 2021).
19
Wolf, 144 A.3d 228, 248 (Pa. Cmwlth. 2016), aff’d, 158 A.3d 642 (Pa. 2017)
(emphasis omitted).
As trustee, the Commonwealth has a duty to refrain
from permitting or encouraging the degradation,
diminution, or depletion of public natural resources,
whether such degradation, diminution, or depletion would
occur through direct state action or indirectly, e.g.,
because of the state’s failure to restrain the actions of
private parties. In this sense, the third clause of the
[ERA] is complete because it establishes broad but
concrete substantive parameters within which the
Commonwealth may act.
Robinson Twp., Wash. Cnty. v. Commonwealth, 83 A.3d 901, 957 (Pa. 2013)
(emphasis added). The Pennsylvania Supreme Court recognized: “Insofar as the
Commonwealth always had a recognized police power to regulate the use of land,
and thus could establish standards for clean air and clean water consistent with the
requirements of public health, [the ERA] is merely a general reaffirmation of past
law.” Shapp v. Nat’l Gettysburg Battlefield Tower, Inc., 311 A.2d 588, 592 (Pa.
1973).
“[T]he public trust provisions of [the ERA] are self-executing[]” and,
therefore, do not require implementing legislation to be effective. Pa. Env’t Def.
Found. v. Commonwealth, 161 A.3d 911, 937 (Pa. 2017). Further, “[t]he standing
requirements of [the ERA] are normally to be broadly construed[.]” Pa. Game
Comm’n v. Dep’t of Env’t Res., 509 A.2d 877, 883-84 (Pa. Cmwlth. 1986), aff’d,
555 A.2d 812 (Pa. 1989).
Here, Plaintiffs assert that, “[b]y definition, Plaintiffs must be
empowered to proceed with affirmative litigation, including prosecuting tort claims,
to recover the damages to the trust’s corpus so that they may be remedied.”
Plaintiffs’ Br. at 12 (emphasis added). In the absence of Pennsylvania-specific case
law, Plaintiffs rely on court decisions from other jurisdictions to support that
20
conclusion. In particular, State of Maryland, Department of Natural Resources v.
Amerada Hess Corp., 350 F. Supp. 1060 (D. Md. 1972), wherein the state, its
department of natural resources, and its port administration sued to recover damages
incurred as a result of an oil discharge into the Baltimore Harbor.
In response to a standing challenge, the Amerada Hess Corp. Court
concluded that a state’s ability to protect its natural resource cannot be limited to its
power to legislate. The Amerada Hess Corp. Court relied on the concurring opinion
in Toomer v. Witsell, 334 U.S. 385 (1948), which specified: “A [s]tate may care for
its own in utilizing the bounties of nature within her borders because it has technical
ownership of such bounties or, when ownership is in no one, because the [s]tate may
for the common good exercise all the authority that technical ownership ordinarily
confers.” Toomer, 334 U.S. at 408 (Frankfurter, J., concurring) (emphasis added).
The Amerada Hess Corp. Court held that Maryland’s technical ownership of its
waters gave it the legal right to sue on the public’s behalf, stating that “if the [s]tate
is deemed to be the trustee of the waters, then, as trustee, the [s]tate must be
empowered to bring suit to protect the corpus of the trust - i.e., the waters - for the
beneficiaries of the trust - i.e., the public.” Id. at 1067. Accordingly, based on the
foregoing persuasive rationale, this Court concludes that the Commonwealth also
has trustee standing to bring the instant action pursuant to the ERA.
DEP and DCNR Standing as Parens Patriae
Pennsylvania law does not expressly preclude Commonwealth agencies
from having parens patriae standing. Moreover, in Pennsylvania Department of
Banking v. NCAS of Delaware, LLC, 995 A.2d 422 (Pa. Cmwlth. 2010), this Court
examined whether the Department of Banking had parens patriae standing.
Although the NCAS of Delaware, LLC Court ultimately determined that the
Department of Banking lacked parens patriae standing in the circumstances
21
presented in that case, the Court’s reasoning provides guidance for the appropriate
analysis to be applied. The NCAS of Delaware, LLC Court looked at whether the
agency pled an interest beyond that of an individual citizen; specifically, after setting
aside individual citizens’ claims, whether the agency still had a concrete,
independent, and direct quasi-sovereign interest to protect, and whether the sought-
after damages were distinct from those available to individual citizens. See id.In the instant matter, Plaintiffs specifically assert in the Complaint that
DEP is “vested with the authority to protect the environment, prevent and remediate
pollution, and protect the public health, comfort, safety, and welfare, pursuant to its
police powers and its parens patriae authority under the [HSCA].” Complaint ¶ 24.
The HSCA, among the purposes of which is to “[p]rotect the public health, safety
and welfare and the natural resources of this Commonwealth from the short-term
and long-term effects of the release of hazardous substances and contaminants into
the environment[,]” Section 102(12)(vi) of the HSCA, 35 P.S. § 6020.102(12)(vi),
also affords DEP “independent authority . . . to conduct site investigations and
assessments[,] . . . to require the replacement of water supplies contaminated by
[hazardous substances or contaminants, and] to take other appropriate response
actions and recover from responsible persons its costs for conducting the responses.”
35 P.S. § 6020.102(12)(ii). Section 301(1) of the HSCA specifically authorizes DEP
to “[d]evelop, administer and enforce a program to provide for the investigation,
assessment and cleanup of hazardous sites in this Commonwealth[.]” 35 P.S. §
6020.301(1). Section 301(10) of the HSCA allows DEP to “[i]nstitute, in a court of
competent jurisdiction, proceedings to compel compliance[.]” 35 P.S. §
6020.301(10). Section 1101 of the HSCA makes any release of a hazardous
substance or a violation of any DEP provision, regulation, or order a public nuisance,
and any person allowing such release or violation is subject to related response costs.
See 35 P.S. § 6020.1101.
22
In addition, the CSL, among the purposes of which is “not only to
prevent further pollution of the waters of the Commonwealth, but also to reclaim
and restore to a clean, unpolluted condition every stream in [the Commonwealth]
that is presently polluted[,]” Section 4(3) of the CSL, 35 P.S. § 691.4(3), expressly
allows DEP to issue orders necessary to enforce the CSL and to impose penalties
against persons who discharge or put or place substances into Commonwealth waters
that cause or contribute to pollution (which is a public nuisance). See Section 610
of the CSL, 35 P.S. § 691.610. Section 605 of the CSL authorizes DEP to assess
civil penalties for violating the CSL or DEP’s Regulations. See 35 P.S. § 691.605.
Plaintiffs also allege in the Complaint that DCNR is “vested with the
authority to conserve and sustain the Commonwealth’s public natural resources for
the use and enjoyment of present and future generations, pursuant to its police
powers and its parens patriae authority under the [CNRA].” Complaint ¶ 25.
Section 101(b)(1) of the CNRA reflects the General Assembly’s intention that
DCNR was created “to serve as a cabinet-level advocate for our [s]tate parks, forests,
rivers, trails, greenways and community recreation and heritage conservation
programs to provide more focused management of the Commonwealth’s recreation,
natural and river environments.” 71 P.S. § 1340.101(b)(1).
The provision further declares that DCNR’s primary mission is
to maintain, improve and preserve [s]tate parks, to manage
[s]tate forest lands to assure their long-term health,
sustainability and economic use, to provide information on
[the Commonwealth’s] ecological and geologic resources
and to administer grant and technical assistance programs
that will benefit rivers[’] conservation, trails and
greenways, local recreation, regional heritage
conservation and environmental education programs
across [the Commonwealth].
Id.
23
The CNRA also authorizes DCNR, inter alia, “to assist in the
conservation, enhancement and restoration of the river resources of this
Commonwealth and may make grants and provide technical assistance to local
governments and nonprofit organizations for river conservation projects[,]” Section
307(a) of the CNRA, 71 P.S. § 1340.307(a); acquire, dispose of, and manage state
forest lands, see Section 302 of the CNRA, 71 P.S. § 1340.302; “[t]o hold, manage,
control, protect, maintain, utilize, develop[,] and regulate the occupancy and use of
all lands, heretofore or hereafter acquired, owned, leased[,] and maintained as [s]tate
forests,” 71 P.S. § 1340.302(a)(3); to appoint officers and wardens authorized to
protect state forests and parks from trespassing, or other offenses against the laws or
regulations established for the protection of state forests and timber lands, and fish
or game contained therein, see 71 P.S. § 1340.302(c)-(g); “[t]o supervise, maintain,
improve, regulate, police and preserve all parks belonging to the Commonwealth[,]”
Section 303(a)(1) of the DCNR, 71 P.S. § 1340.303(a)(1); to appoint and
commission persons to preserve order in the parks, who have the authority to arrest
for observed violations, see 71 P.S. § 1340.303(7)(i); “[t]o serve subpoenas issued
for any examination, investigation or trial under any law of this Commonwealth[,]”
71 P.S. § 1340.303(7)(iv); and to promote environmental education, see Section 311
of the DCNR, 71 P.S. § 1340.311. Although DCNR appears to be more of an
advocate and less of an enforcer, it nevertheless is responsible for overseeing and
managing natural resources affected by Defendants’ conduct.
Applying the NCAS of Delaware, LLC considerations here, this Court
concludes that, setting aside any individual citizens’ potential claims, DEP and
DCNR have concrete, independent, and direct quasi-sovereign interests under the
HSCA, CNRA, and the CSL beyond that of individual Commonwealth citizens, the
violations for which they may be entitled to damages. Accordingly, DEP and DCNR
24
hold legitimate quasi-sovereign governmental interests, thus establishing parens
patriae standing in the instant action.
DEP, DCNR, FBC, and GC as Trustees
Although the Commonwealth is the named trustee of public natural
resources under the ERA, and individual agencies and departments are not
referenced therein, see Funk, the Pennsylvania Supreme Court has described:
The drafters and the citizens of the Commonwealth who
ratified the [ERA] . . . articulated the people’s rights and
the government’s duties to the people in broad and flexible
terms that would permit not only reactive but also
anticipatory protection of the environment for the benefit
of current and future generations. Moreover, public
trustee duties were delegated concomitantly to all
branches and levels of government in recognition that
the quality of the environment is a task with both local and
statewide implications, and to ensure that all
government neither infringed upon the people’s rights
nor failed to act for the benefit of the people in this area
[was] crucial to the well-being of all Pennsylvanians.
Robinson Twp., 83 A.3d at 963 (emphasis added).
This Court has also recognized:
The second provision of the ERA impels executive branch
agencies [(i.e., DEP and DCNR)] and departments to act
in support of conserving and maintaining public natural
resources, but it cannot operate on its own to “expand the
powers of a statutory agency . . . .” Cmty. Coll. of Del[.]
Cnty. [v. Fox], 342 A.2d [468,] 482 [(Pa. Cmwlth. 1975)].
Thus, courts assessing the duties imposed upon executive
branch departments and agencies by the ERA must remain
cognizant of the balance the General Assembly has
already struck between environmental and societal
concerns in an agency or department’s enabling act. Id. at
473.
25
Funk, 144 A.3d at 235. Accordingly, DEP has trustee standing under the ERA
pursuant to the HSCA and the CSL, and DCNR has trustee standing under the ERA
pursuant to the CNRA to protect the Commonwealth’s natural resources.
Plaintiffs also represent in the Complaint that the FBC’s mission is “to
protect, conserve, and enhance the Commonwealth’s aquatic resources and to
regulate and provide fishing and boating opportunities within the Commonwealth,
pursuant to the [Fish and Boat Code].” Complaint ¶ 26. The General Assembly has
expressly charged the FBC with administering and enforcing the Fish and Boat Code
and other Commonwealth laws relating to, inter alia, protection of fish and fishery
and boating interests. See 30 Pa.C.S. § 321. The FBC also has “[t]he entire control
of all lands or waters owned, leased or otherwise controlled . . . [and] may
promulgate such rules and regulations for its use and protection as it deems necessary
or in the best interests of the Commonwealth.” 30 Pa.C.S. § 741(a). Those who
cause damage to FBC property, either intentionally or recklessly, may be criminally
charged and fined, and restitution assessed. See 30 Pa.C.S. § 703. In addition, the
FBC may appoint waterways conservation officers and deputies with law
enforcement powers, see 30 Pa.C.S. § 901, who “are authorized to enforce all the
laws of this Commonwealth, and rules and regulations promulgated thereunder,
relating to game, parks and forestry, under the direction of the [GC] and of [DCNR],
respectively.” 30 Pa.C.S. § 902.
Regarding the GC, Plaintiffs assert in the Complaint that the GC’s
mission is “to manage and protect wildlife and wildlife habitat and to inform and
educate the public on wildlife and safe hunting practices within the Commonwealth,
pursuant to the [Game and Wildlife Code].” Complaint ¶ 27. The Game and
Wildlife Code specifies:
The proprietary ownership, jurisdiction and control of
game or wildlife living free in nature is vested in the
26
Commonwealth by virtue of the continued expenditure of
its funds and its efforts to protect, propagate, manage and
preserve the game or wildlife population as a renewable
natural resource of this Commonwealth.
34 Pa.C.S. § 2161(a).
The Game and Wildlife Code also states: “The [GC is] the agency of
the Commonwealth authorized to regulate, protect, propagate, manage and preserve
game or wildlife[.]” 34 Pa.C.S. § 2161(b). “The ownership, jurisdiction over and
control of game or wildlife is vested in the [GC] as an independent agency of the
Commonwealth in its sovereign capacity to be controlled, regulated and disposed of
in accordance with this title.” 34 Pa.C.S. § 103(a). “It shall be the duty of the [GC]
to protect, propagate, manage and preserve the game or wildlife of this
Commonwealth and to enforce, by proper actions and proceedings, the laws of this
Commonwealth relating thereto.” 34 Pa.C.S. § 322(a). “The [GC] has the power
and duty to take all actions necessary for the administration and enforcement of this
title[,]” 34 Pa.C.S. § 322(b), including “[t]ak[ing] any necessary action to
accomplish and assure the purposes of this title.” 34 Pa.C.S. § 322(c)(12). “The
administration of all lands or waters owned, leased or otherwise controlled by the
[GC] shall be under” the GC director’s sole control, “and the [GC] shall promulgate
regulations consistent with the purpose of this title for its use and protection as
necessary to properly manage these lands or waters.” 34 Pa.C.S. § 721(a). “[T]he
[GC] has sufficient interest in the maintenance and care of any lands, buildings,
appurtenances, waters and the flora and fauna, minerals, oil or gas thereon to
promulgate regulations which are necessary to preserve and protect the users,
improvements, lands and buildings under its control.” 34 Pa.C.S. § 741(a). The GC
may promulgate regulations to protect users, improvements, lands and buildings
under its control from “[d]amages of any kind” and “to properly protect and preserve
these lands for their intended use.” 34 Pa.C.S. § 741(b)(2)-(3). “[T]he [GC is] . . .
27
authorized to protect and preserve lands under [its] control, may bring civil actions
on behalf of the Commonwealth for the value of any damage done or materials of
any kind removed from [its] lands or buildings” and “is entitled to recover the costs
of gathering the evidence . . . in any civil action brought under this [S]ection where
the defendant is found liable for damages.” 34 Pa.C.S. § 741(d). “The
Commonwealth has sufficient interest in game or wildlife living in a free state to
give it standing, through its authorized agents, to recover compensatory and punitive
damages in a civil action against any person who kills any game or wildlife or who
damages any game or wildlife habitat.” 34 Pa.C.S. § 2161(a). “The [GC] . . . may,
in addition to the penalties provided in this title, bring civil actions on behalf of the
Commonwealth for compensatory and punitive damages for any game or wildlife
killed or any game or wildlife habitat injured or destroyed[,]” and the GC “may
recover the costs of gathering the evidence, including expert testimony, in any civil
action brought under this [S]ection where the defendant is found liable for damages.”
34 Pa.C.S. § 2161(b). Finally, the GC may appoint enforcement officers. See 34
Pa.C.S. §§ 901-932.
Moreover, the Pennsylvania Supreme Court has held that “the [GC] has
a substantial interest in the lands and wildlife under its control. This alone would be
sufficient to give it standing to legally challenge any action which allegedly would
have an adverse impact on those interests.” Pa. Game Comm’n, 555 A.2d at 816.
In his concurring opinion, Justice Rolf Larsen stated:
As one of this Commonwealth’s trustees of our natural
resources and the public estate under [a]rticle I, section
27 of our Constitution, the [GC] must have standing to
take whatever legal action is necessary and appropriate to
“conserve and maintain” our “clean air, pure water,” and
“the natural, scenic, historic and esthetic values of the
environment” where threats to game or wildlife and to
waterways and lands acquired and managed by the [GC]
arise.
28
Id. at 817 (Larsen, J., concurring) (emphasis added).
Notably, in Amerada Hess Corp., wherein the defendants challenged
the state of Maryland’s standing to sue to recover damages incurred as a result of an
oil discharge into the Baltimore Harbor, the focus was on the state’s authority, and
no specific challenge was made to the Maryland department of natural resources’ or
the port administration’s standing. In State of California By & Through the
Department of Fish & Game v. S.S. Bournemouth, 307 F. Supp. 922, 923 (C.D. Cal.
1969), the state’s fish and game commission filed a complaint in rem against the
vessel to recover damages incurred by discharging a quantity of bunker oil into the
state’s and the U.S.’s navigable waters. Applying maritime law, the U.S. District
Court denied the defendants’ motion to dismiss. The S.S. Bournemouth Court stated:
Oil pollution of the nation’s navigable waters by seagoing
vessels both foreign and domestic is a serious and growing
problem. The cost to the public, both directly in terms of
damage to the water and indirectly of abatement is
considerable. In cases where it can be proven that such
damage to property does in fact occur, the governmental
agencies charged with protecting the public interest
have a right of recourse in rem against the offending
vessel for damages to compensate for the loss.
Id. at 929 (emphasis added).
In addition, the fact that the agencies’ various enabling statutes offer
enforcement options does not necessarily preclude common law actions.
It is well established that “statutes are not presumed to
make changes in the rules and principles of the common
law or prior existing law beyond what is expressly
declared in their provisions.” Carrozza v. Greenbaum, . . .
916 A.2d 553, 566 ([Pa.] 2007) (quoting Commonwealth
v. Miller, . . . 364 A.2d 886, 887 ([Pa.] 1976)). Thus, the
Court will not disturb established legal principles without
express direction from the Legislature. Carrozza, 916
A.2d at 565-66.
Everhart v. PMA Ins. Grp., 938 A.2d 301, 307 (Pa. 2007).
29
As legislatively created and appointed advocates for the express
purpose of protecting the Commonwealth’s natural resources and, broadly
construing standing under the ERA, as we must, see Pa. Game Comm’n, this Court
concludes that DEP, DCNR, FBC, and GC have trustee standing to bring the instant
action.
Because the Commonwealth, DEP, and DCNR have standing as parens
patriae, and the Commonwealth, DEP, DCNR, FBC, and GC have trustee standing,
Defendants’ PO 1 (Lack of Standing) is overruled.17
PO 2 (Demurrer - Public Nuisance Claim)
Defendants object to Plaintiffs’ First Cause of Action - Public Nuisance
- on the basis that Pennsylvania does not impose nuisance liability against a
manufacturer after placing a product into the stream of commerce, and Plaintiffs do
not and cannot allege that Defendants controlled their PCB products after they sold
them to third parties, particularly when Defendants ceased production more than 40
years ago.
Section 821B of the Second Restatement,18 upon which Pennsylvania
courts rely, provides:
17
Defendants object to Plaintiffs’ declaration in the Complaint that they “also bring this
action . . . pursuant to their authority within the [CAA, Section 204(c) of the CAA], 71 P.S. § 732-
204(c)[,]” Complaint ¶ 28, arguing that Section 204(c) of the CAA does not confer standing in
Plaintiffs. See Defendants’ Supporting Br. at 15. Section 204(c) of the CAA states, in relevant
part: “The Attorney General shall represent the Commonwealth and all Commonwealth agencies
. . . in any action brought by . . . the Commonwealth or its agencies[.]” 71 P.S. § 732-204(c).
Therefore, Section 204(c) of the CAA authorizes the Attorney General to prosecute civil actions
on behalf of Commonwealth parties, but does not expressly confer standing. However, because it
appears that Plaintiffs in that paragraph were merely stating the statutory basis for the Attorney
General’s representation and not claiming standing by virtue of the CAA, Defendants’ preliminary
objection to Complaint paragraph 28 is overruled.
18
“The Restatement (Third) of Torts [(Third Restatement)] was published in 1998.” A
MAZE OF UNCERTAINTY: PA PROD. LIAB. LAW REMAINS IN A CONFUSING STATE OF FLUX, 2013 WL
504247, at *2. However, Pennsylvania state courts have yet to adopt the Third Restatement. See
30
(1) A public nuisance is an unreasonable interference with
a right common to the general public.
(2) Circumstances that may sustain a holding that an
interference with a public right is unreasonable include the
following:
(a) Whether the conduct involves a significant
interference with the public health, the public
safety, the public peace, the public comfort or the
public convenience, or
(b) whether the conduct is proscribed by a statute,
ordinance or administrative regulation, or
(c) whether the conduct is of a continuing nature
or has produced a permanent or long-lasting effect,
and, as the actor knows or has reason to know, has
a significant effect upon the public right.
Second Restatement § 821B.
Section 3 of the CSL provides: “The discharge of . . . any substance into
the waters of this Commonwealth, which causes or contributes to pollution . . . or
creates a danger of such pollution is hereby declared not to be a reasonable or natural
use of such waters, to be against public policy and to be a public nuisance.” 35 P.S.
§ 691.3 (emphasis added). Section 401 of the CSL declares: “It shall be unlawful
for any person . . . to put or place into any of the waters of the Commonwealth . . .
any substance of any kind or character resulting in pollution as herein defined. Any
such discharge is hereby declared to be a nuisance.” 35 P.S. § 691.401 (emphasis
added). Section 1 of the CSL defines waters of the Commonwealth “to include any
and all rivers, streams, creeks, rivulets, impoundments, ditches, water courses, storm
sewers, lakes, dammed water, ponds, springs and all other bodies or channels of
id.; see also Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014). Accordingly, Pennsylvania
remains a Second Restatement jurisdiction. See Tincher.
31
conveyance of surface and underground water, or parts thereof, whether natural or
artificial, within or on the boundaries of this Commonwealth.” 35 P.S. § 691.1.
According to Section 1 of the CSL, pollution
shall be construed to mean contamination of any waters of
the Commonwealth such as will create or is likely to create
a nuisance or to render such waters harmful, detrimental
or injurious to public health, safety or welfare, or to
domestic, municipal, commercial, industrial, agricultural,
recreational, or other legitimate beneficial uses, or to
livestock, wild animals, birds, fish or other aquatic life,
including but not limited to such contamination by
alteration of the physical, chemical or biological
properties of such waters, or change in temperature, taste,
color or odor thereof, or the discharge of any liquid,
gaseous, radioactive, solid or other substances into such
waters. [DEP] shall determine when a discharge
constitutes pollution, as herein defined, and shall establish
standards whereby and wherefrom it can be ascertained
and determined whether any such discharge does or does
not constitute pollution as herein defined.
35 P.S. § 691.1. Section 601(a) of the CSL specifies that “[a]ny activity or
condition declared by [the CSL] to be a nuisance or which is otherwise in
violation of [the CSL], shall be abatable in the manner provided by law or
equity for the abatement of public nuisances[] . . . in the name of the
Commonwealth . . . in [this Court.]” 35 P.S. § 691.601(a) (emphasis added).
Accordingly, the Pennsylvania Supreme Court has declared that “pollution of
public waterways is” a nuisance per se. Machipongo Land & Coal Co., Inc. v.
Commonwealth, 799 A.2d 751, 774 (Pa. 2002).
This Court has also interpreted:
“A public nuisance is an inconvenience or troublesome
offense that annoys the whole community in general, and
not merely some particular person, and produces no
greater injury to one person than to another - acts that are
against the well-being of the particular community - and is
not dependent upon covenants.” Blue Mountain Pres[.]
32
Ass[’]n v. Eldred, 867 A.2d 692, 704 (Pa. Cmwlth. 2005)
(quoting Groff v. Borough of Sellersville, . . . 314 A.2d
328, 330 ([Pa. Cmwlth.] 1974)). A nuisance “affects
health, safety or morals.” Id. at 705 (quoting Menger v.
Pass, . . . 80 A.2d 702, 703 ([Pa.] 1951)).
SPTR, Inc. v. City of Phila., 150 A.3d 160, 167 (Pa. Cmwlth. 2016).
Here, relying on Diess v. Pennsylvania Department of Transportation,
935 A.2d 895 (Pa. Cmwlth. 2007), and City of Philadelphia v. Beretta U.S.A., Corp.,
126 F. Supp. 2d 882, 906 (E.D. Pa. 2000), Defendants claim that Plaintiffs failed to
allege that Monsanto itself released, discharged, or put PCBs into the
Commonwealth’s waters and, thus, have failed to plead a legally sufficient public
nuisance claim. See Defendants’ Supporting Br. at 13.
Despite that neither the Second Restatement nor Pennsylvania law
requires, in order to be found to have created a public nuisance, that the creator must
at all times control the nuisance-creating product, we acknowledge that this Court
ruled in Diess:
In this case, the [l]andowners do not allege that Allegheny
Energy owned the fly ash at the time of the landslide. Nor
do they aver that Allegheny Energy had the power to
control the property upon which the fly ash had been
deposited. The Court does not agree with the
[l]andowners that the mere generation of the fly ash is
sufficient to support a claim of public nuisance against
Allegheny Energy.
Id. at 905.
In sustaining the preliminary objection to the landowners’ public
nuisance claim, the Diess Court expounded:
The [c]omplaint does not aver sufficient facts to
demonstrate that Allegheny Energy engaged in any
conduct that caused a public nuisance. Allegheny Energy,
while admitting it [generated the fly ash and] engaged the
services of a company to dispose of the fly ash,
relinquished control of the fly ash, and the transporter
33
acquiring the fly ash controlled the disposal of the
materials. Although the dispersion of fly ash throughout
the affected community might constitute a nuisance, [the
l]andowners have failed to connect Allegheny Energy’s
generation and dispossession of the fly ash with the
incident that has caused the alleged harm.
Id. at 905. However, in Diess, the nuisance arose from a collapsed road embankment
created by a third party using an arsenic-filled byproduct of what the manufacturer
sold. Clearly, that presented a much more remote circumstance than those before
this Court, where Plaintiffs allege that the marketed uses of the PCB products
themselves created the nuisance. Accordingly, Diess is inapposite.
This Court observes that, in Beretta, the U.S. District Court for the
Eastern District of Pennsylvania, likewise, concluded that manufacturers could not
be held liable for public nuisance for their product (gun) distribution practices which
could harm individuals after the products had left their control. See id. However,
Beretta is also distinguishable from the instant matter because, therein, when the
products left the manufacturer’s control, they were legal and non-defective, and any
harm that resulted from their negligent or criminal use was beyond the
manufacturer’s instruction and control. PCBs, on the other hand, as alleged in the
Complaint and which this Court must accept as true, are volatile in and of themselves
and can disperse inadvertently, without intervening negligent or criminal conduct.
Interestingly, the Beretta Court examined City of Bloomington, Indiana
v. Westinghouse Electric Corp., 891 F.2d 611 (7th Cir. 1989). Therein, Bloomington
filed a complaint against Monsanto after Westinghouse purchased and used
Monsanto’s PCB products in its Bloomington plant, and waste containing PCBs
were hauled to various Bloomington area landfills, and small concentrations of PCBs
also got into the sewer effluent of the Westinghouse plant.19 The Bloomington Court
19
According to the Bloomington Court, “[i]n 1970 Monsanto commenced using a warning
label advising customers not to permit PCBs to enter the environment and in 1976 Monsanto
34
upheld the trial court’s dismissal of the public nuisance claim against Monsanto,
stating: “[T]he pleadings do not set forth facts from which it could be concluded that
Monsanto retained the right to control the PCBs beyond the point of sale to
Westinghouse,” id. at 614, and did not know that Westinghouse would release
harmful waste on city property.
Unlike in Diess, Beretta, and Bloomington, Plaintiffs in this case pled
sufficient facts in the Complaint that, if proven, may establish Defendants’ liability
for a public nuisance. Plaintiffs specifically allege: Defendants knew or should have
known that their PCB products “would inevitably volatilize and leach, leak, and
escape their intended applications, contaminating runoff during naturally occurring
storm and rain events and enter[] groundwater, waterways, waterbodies, and other
waters, sediment, soils, and plants, as well as fish and other wildlife throughout the
Commonwealth.” Complaint ¶ 6. “More than 1,300 miles of streams and more than
3,600 lake acres in the Commonwealth have been identified as ‘impaired’ . . .
because the PCBs in those waterbodies exceed the Commonwealth’s water quality
standards[.]” Complaint ¶ 12. “The Commonwealth’s residents and natural
resources, including its water bodies and water systems, have been and continue to
be impacted by PCBs manufactured, marketed, distributed, and introduced into
commerce by Defendants[.]” Complaint ¶ 17. “Monsanto’s PCB mixtures and
PCB-containing products were used in countless applications within the
Commonwealth and leached, leaked, off-gassed, and escaped their ordinary and
intended applications to contaminate the Commonwealth’s waters, sediments, soils,
air, and fish and wildlife.” Complaint ¶ 151. “None of these expenditures would
have been necessary absent Monsanto’s sale and dissemination of toxic PCB
announced that it would stop selling PCBs since substitutes were available for electrical equipment
manufacturers.” Bloomington, 891 F.2d at 613.
35
mixtures, which, when used as intended, would inevitably contaminate natural
resources and endanger people, animals, and the environment.” Complaint ¶ 251.
Plaintiffs further allege:
260. Defendants manufactured, distributed, marketed, and
promoted commercial PCB formulations in a manner that
created or contributed to the creation of a public nuisance
that is harmful to health and obstructs the free use and
enjoyment of the Commonwealth’s natural resources.
261. Defendants manufactured, marketed, and sold their
commercial PCB formulations when they knew or should
have known that PCBs were toxic to human and animal
life and would inevitably enter the Commonwealth’s
environment.
262. Defendants knew or should have known that their
PCB mixtures, as ordinarily used, would end up in the
Commonwealth’s natural resources, waterways, water
bodies, groundwater, soils, sediments, fish and animal
tissues.
263. Defendants’ conduct and the presence of their PCBs
annoys, injures, and endangers the comfort, repose, health,
and safety of others.
264. Defendants’ conduct and the presence of their PCBs
in the Commonwealth significantly interfere with and
obstruct the public’s free use and comfortable enjoyment
of the Commonwealth’s natural resources for commerce,
navigation, fishing, recreation, and aesthetic enjoyment.
265. Defendants’ conduct and the presence of [their] PCBs
in the Commonwealth’s natural resources is injurious to
human, animal, and environmental health.
266. An ordinary person would be reasonably annoyed or
disturbed by the presence of toxic PCBs that endanger the
health of fish, animals, and humans and degrade water
quality and marine habitats as well as soils and sediments.
267. Defendants’ conduct caused and continues to cause
harm to the Commonwealth.
36
268. The Commonwealth has suffered and will continue
to suffer damage from Defendants’ conduct, including
incurring costs to reduce PCBs through TMDLs and other
remedial measures, to remove PCBs that have invaded the
Commonwealth’s natural resources, to prevent PCBs from
injuring additional Commonwealth natural resources, and
to restore those natural resources whose use or value has
been lost or impaired.
269. The Commonwealth is incurring and will continue to
incur costs to investigate, monitor, analyze, and remediate
PCB contamination in the Commonwealth’s natural
resources.
270. As a result of Defendants’ conduct, the
Commonwealth suffers injuries to the public interest and
the health and well-being of its environment.
271. Defendants knew or should have known that the
manufacture, promotion, sale, distribution, and use of their
commercial PCB mixtures would cause contamination of
the Commonwealth’s environment.
272. Defendants knew or should have known that their
PCB products would contaminate water supplies, degrade
fresh water and marine habitats, endanger birds and
animals, and contaminate soils and sediments in the
Commonwealth.
273. In addition, Defendants knew or should have known
that their PCB products are associated with serious
illnesses and cancers in humans and that humans may be
exposed to PCBs through ingestion of fish and/or dermal
contact. As a result, it was foreseeable to Defendants that
humans would be exposed to PCBs through, e.g.,
swimming in contaminated waters or eating fish and
shellfish from contaminated areas.
274. Defendants knew, or should have known, that PCB
contamination they introduced or caused would seriously
and unreasonably interfere with the ordinary comfort, use,
and enjoyment of contaminated waterbodies, including the
Commonwealth’s waters.
275. Defendants’ conduct in manufacturing, distributing,
selling, and promoting PCBs, as well as misrepresenting
37
or omitting the dangers those compounds foreseeably
posed, constitutes an unreasonable interference with a
right common to the general public, i.e., the right to freely
use the Commonwealth’s natural resources without
obstruction and health hazard.
276. As a direct and proximate result of Defendants’
creation of a public nuisance, the Commonwealth has
suffered, and continues to suffer, monetary damages,
including loss of value and loss of use of the
Commonwealth’s natural resources.
Complaint ¶¶ 260-276.
Therefore, despite that Plaintiffs do not specifically allege that
Defendants themselves “discharged” or “put or placed [PCBs] into any of the waters
of the Commonwealth,” 35 P.S. § 691.401, Plaintiffs clearly declare that Defendants
are responsible for PCBs entering the Commonwealth’s waters because Defendants
knew that the uses for which they marketed, sold, and distributed PCB mixtures
would result in leaching, leaking, and escaping their intended applications and
contaminating (i.e., polluting) those waters. If Plaintiffs can prove their claims,
Defendants should not be permitted to escape liability merely because they did not
pour PCBs into the Commonwealth’s environment first-hand.
Notably, as Plaintiffs point out:
[S]everal courts have already sustained nuisance claims
asserted by governmental plaintiffs against Monsanto
based on similar allegations. See, e.g., Ex. 3, Oregon v.
Monsanto Co., et al[.], Case No. 18-[CV]-00540, Order at
14 (Or. Circuit Ct. Jan. 9, 2019) (“[The [s]tate] allege[s]
that Defendants knew that the PCBs would inevitably
wind up polluting Oregon’s waters through the normal,
ordinary use of Defendants’ customers. That is, the
allegations are that it was Defendants’ sale of these
products into Oregon that inexorably led to the pollution
giving rise to the claimed public nuisance. These
allegations, if proven, would be sufficient to prove [the]
required elements for a public nuisance claim.”); [Mayor
& City Council of] Baltimore [v. Monsanto Co., 2020 WL
381529014[,] at *10 [(D. Md. Mar. 31, 2020)] (sustaining
nuisance claim on allegations “that Monsanto
manufactured, distributed, marketed, and promoted PCBs,
resulting in the creation of a public nuisance that is
harmful to health and obstructs the free use of the [c]ity’s
stormwater and other water systems and waters”); City of
San Diego v. Monsanto Co., 2017 WL 5632052, at *7
(S.D. Cal. Nov. 22, 2017); City of Spokane v. Monsanto
Co., 2016 WL 6275164, at *7 (E.D. Wash. Oct. 26, 2016).
Plaintiffs’ Br. at 20.
Regarding state cases, the Baltimore Court observed:
[S]everal state attorneys general have asserted claims for
injuries to natural resources as a result of Monsanto’s
conduct. See State of Washington v. Monsanto Co., No.
16-2-29591-6 (Wash. Super.); State of Oregon v.
Monsanto Co., No. 18[-]CV[-]00540 (Or. Super.); State of
Ohio v. Monsanto Co., No. A1801237 (Ohio Com. Pl.).
Some of those actions remain pending, and Monsanto’s
efforts to have them be initially dismissed on motions
[have] been unsuccessful.
Baltimore, CV RDB-19-0483, 2020 WL 1529014, at *3.
In light of Plaintiffs’ nearly identical claims in the instant matter, this
Court finds the Baltimore Court’s reasoning persuasive here:
The [c]ity has sufficiently alleged that Defendants created
or substantially participated in the creation of PCBs, even
though Defendants may not have maintained control over
the contaminants once disseminated in the [c]ity’s waters.
The [c]ity has alleged that Monsanto manufactured,
distributed, marketed, and promoted PCBs, resulting in the
creation of a public nuisance that is harmful to health and
obstructs the free use of the [c]ity’s stormwater and other
water systems and waters. The [c]ity further alleges that
Monsanto had extensive knowledge about PCB’s harmful
effects; intentionally withheld this information and
misrepresented to the public and government officials that
PCBs were safe; and manufactured and distributed PCBs
in Baltimore’s waters, causing harm to the [c]ity’s
humans, animals, and environment.
39
Just as the plaintiffs in Exxon [Mobil Corp.] plausibly
alleged that [the] defendants manufactured and distributed
the toxic chemicals at issue which substantially
contributed to the creation of a public nuisance, so too has
the [c]ity plausibly alleged that [the D]efendants
manufactured and distributed PCBs which have
contaminated the [c]ity’s waters, creating a public
nuisance. See [Exxon Mobil Corp.,] 406 F. Supp. 3d at
469.
Baltimore, CV RDB-19-0483, 2020 WL 1529014, at *10 (internal citations omitted).
“[A]ccept[ing] as true all well-pleaded material allegations in the
[Complaint and the documents attached thereto], as well as all inferences reasonably
deduced therefrom[,]” and resolving any doubt in favor of overruling the preliminary
objection, as we must, because it does not “appear with certainty that . . . [Plaintiffs
have failed to state a legally sufficient public nuisance claim against Defendants],”
Torres, 997 A.2d at 1245 (emphasis added), Defendants’ PO 2 (Demurrer - Public
Nuisance Claim) is overruled.
PO 3 (Demurrer - Trespass Claim)
Defendants object to Plaintiffs’ Fifth Cause of Action - Trespass - on
the basis that Pennsylvania law does not recognize trespass for the manufacture of a
product after it has left the manufacturer’s control, and Plaintiffs failed to plead that
Defendants intended their PCBs to trespass on Commonwealth lands and waters.
“It is well-settled law that in order to establish a claim for trespass, a
plaintiff must prove an intentional entrance upon land in the possession of another
without a privilege to do so.” Kennedy v. Consol Energy Inc., 116 A.3d 626, 636
(Pa. Super. 2015)20 (emphasis added). “[A] person is a trespasser merely by
20
“While we recognize that Pennsylvania Superior Court cases are not binding on this
Court, such cases ‘offer persuasive precedent where they address analogous issues.’ Lerch v.
Unemployment Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018).” Stahl v. Workers’
40
intending to be where he is. The intent to be on another’s land is not required to
prove trespass.” Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal
Practical Knowledge, 102 A.3d 501, 507 (Pa. Super. 2014).
[Second Restatement Section] 158 . . . governs trespass
claims in Pennsylvania:
....
One is subject to liability to another for trespass,
irrespective of whether he thereby causes harm to any
legally protected interest of the other, if he intentionally
(a) enters land in the possession of the other, or
causes a thing or a third person to do so, or
(b) remains on the land, or
(c) fails to remove from the land a thing which he
is under a duty to remove.
[Second Restatement] § 158 ([Am. Law Inst.] 1965);
Smith v. King’s Grant Condo., . . . 614 A.2d 261, 267 ([Pa.
Super.] 1992), aff[’]d, . . . 640 A.2d 1276 ([Pa.] 1994).
The comment to clause (a) provides that “it is not
necessary that the foreign matter should be thrown directly
and immediately upon the other’s land,” and that instead
“[i]t is enough that an act is done with knowledge that it
will to a substantial certainty result in the entry of the
foreign matter.” Id. at Comment.
Gilbert v. Synagro Cent., LLC, 90 A.3d 37, 52 (Pa. Super. 2014), aff’d in part, rev’d
in part on other grounds, 131 A.3d 1 (Pa. 2015). “[T]he same legal standard (intent)
applies to trespasses of things and third persons[.]”21 Liberty Place Retail Assocs.,
102 A.3d at 508. Notwithstanding, “[i]n accordance with the [Second] Restatement
Comp. Appeal Bd. (E. Hempfield Twp.), 242 A.3d 3, 13 n.6 (Pa. Cmwlth. 2020). The Pennsylvania
Superior Court cases cited herein are relied on for their persuasive value.
21
In fact, “it is easier to infer the necessary intent to cause trespass of things, as opposed
to persons. Piles of sand, dirt, and biosolids are inanimate objects. They go where they are placed
and answer only to the laws of physics and gravity.” Liberty Place Retail Assocs., 102 A.3d at
508.
41
principles, courts do not impose trespass liability on sellers for injuries caused by
their product after it has left the ownership and possession of the sellers.”
Bloomington, 891 F.2d at 615. Moreover, where a plaintiff fails to allege the
necessary trespassory intent, the claim must be dismissed. See id.
Here, Plaintiffs declare in the Complaint in support of their trespass
action:
321. By their conduct, Defendants wrongfully caused
PCBs to enter, invade, intrude upon and injure and
contaminate the natural resources of the Commonwealth,
trespassing upon the Commonwealth’s natural resources.
322. Defendants acted intentionally while knowing, or
having reason to know, that the Commonwealth did not
give Defendants authorization to act in a manner that
would cause injury to the Commonwealth’s natural
resources.
323. Due to Defendants’ wrongful and intentional conduct
in introducing PCBs and PCB-containing products into
[the Commonwealth], which caused injury to the natural
resources of the Commonwealth, the Commonwealth and
its residents have suffered and will continue to suffer
damages, including impairment of the public’s free use
and comfortable enjoyment of the Commonwealth’s
natural resources for commerce, navigation, fishing,
recreation, and aesthetic enjoyment.
324. Defendants’ wrongful and intentional conduct in
introducing PCBs and PCB-containing products into the
Commonwealth was and is the direct factual and legal
cause of the injury to the Commonwealth.
Complaint ¶¶ 321-324. Plaintiffs do not claim that Defendants intentionally entered
onto Commonwealth land, nor intentionally directed the PCB mixtures or a third
42
party to do so.22 See Bloomington. Therefore, Plaintiffs fail to allege that
Defendants had the requisite trespassory intent. Defendants’ informed
understanding of the functionality and potential effects of their products cannot be
interpreted as an intent to trespass throughout the Commonwealth’s environment.
Because it “appear[s] with certainty that . . . [Plaintiffs have failed to
state a legally sufficient trespass claim against Defendants],” Torres, 997 A.2d at
1245 (emphasis added), Defendants’ PO 3 (Demurrer - Trespass Claim) is sustained.
PO 4 (Demurrer - Design Defect Claim)
Defendants object to Plaintiffs’ Second Cause of Action - Design
Defect - on the basis that Defendants owed no duty to Plaintiffs or the general public
to make their products safe for the environment. Defendants further contend that
Plaintiffs’ design defect claim fails because the consumer expectations test is
inapplicable to complex products like PCBs; Plaintiffs’ allegations of an alternative
product do not support liability under the risk-utility test; and Plaintiffs’ allegations
of environmental harm due to PCB dumping, spillage, and disposal do not state a
claim because they were not intended uses of the product.
In Webb v. Zern, . . . 220 A.2d 853 ([Pa.] 1966), our
Supreme Court formally adopted Section 402A of the
[Second Restatement] as the law governing strict products
liability actions. This [S]ection provides:
(1) One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical harm thereby
22
“Whereas the alleged injury stems from a sale, [the p]laintiff[s’] claims are more adapted
to contract law or strict liability.” Town of Hooksett Sch. Dist. v. W.R. Grace & Co., 617 F. Supp.
126, 133 (D.N.H. 1984).
43
caused to the ultimate user or consumer, or to his property,
if
(a) the seller is engaged in the business of selling
such a product, and
(b) it is expected to and does reach the user or
consumer without substantial change in the
condition in which it is sold.
(2) The rule stated in [s]ubsection (1) applies although
(a) the seller has exercised all possible care in the
preparation and sale of his product, and
(b) the user or consumer has not bought the
product from or entered into any contractual
relation with the seller.
[Second Restatement] § 402A [].
Barton v. Lowe’s Home Ctrs., Inc., 124 A.3d 349, 354-55 (Pa. Super. 2015).
Accordingly, in Pennsylvania,
a person or entity engaged in the business of selling a
product has a duty to make and/or market the product -
which “is expected to and does reach the user or consumer
without substantial change in the condition in which it is
sold” - free from “a defective condition unreasonably
dangerous to the consumer or [the consumer’s] property.”
Accord [Second Restatement] § 402A(1).
Tincher v. Omega Flex, Inc., 104 A.3d 328, 388 (Pa. 2014). Correspondingly, “a
manufacturer or supplier has a duty to cease further distribution of a product at such
point as it may know, or may reasonably be charged with knowledge that the
commodity is too dangerous to be used by anyone.” Lance v. Wyeth, 85 A.3d 434,
460 (Pa. 2014).
“[Second Restatement Section 402A] imposes liability on
the seller . . . of a defective product regardless of the lack
of proven negligence or the lack of contractual relation
[sic] between the seller and the injured party.” Salvador
44
v. Atl[.] Steel Boiler Co., . . . 319 A.2d 903, 906 ([Pa.]
1974). The social policy reflected in the imposition of the
seller’s liability is clear. When a product is released into
the stream of commerce, it is the seller or manufacturer
who is best able to shoulder the costs and to administer the
risks involved. Having derived a benefit from engaging in
business, they are particularly able to allocate the losses
incurred through cost increases and insurance. This
assignment of liability is what Professor Prosser referred
to as “social adjustment[].[”] W. Prosser, Law of Torts at
495 (4th ed. 1979).
Walton v. Avco Corp., 610 A.2d 454, 458 (Pa. 1992); see also Tincher.
Regarding whether Defendants owed a duty to Plaintiffs or the general
public to make their products safe for the environment, the law is not as clear as
Defendants postulate. This Court acknowledges that “the [Restatement (Third) of
Torts: Products Liability ([American Law Institute] 1998) (Third Restatement)] does
not limit a strict liability cause of action to the ‘user or consumer,’ and broadly
permits any person harmed by a defective product to recover in strict liability[,]”
Thomas ex rel. Thomas v. Staples, Inc., 2 F. Supp. 3d 647, 655 (E.D. Pa. 2014)
(quoting Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 54 (3d Cir. 2009)), and federal
courts have allowed Pennsylvania bystanders to recover for foreseeable injuries
caused by defective products pursuant to the Third Restatement. See Berrier.
However, Pennsylvania courts have yet to expressly adopt the Third Restatement.
See Tincher; see also Sullivan v. Werner Co., 253 A.3d 730 (Pa. Super. 2021).
Moreover, Comment o to the Second Restatement Section 402A
reflects, in pertinent part:
Casual bystanders, and others who may come in contact
with the product, as in the case of employees of the
retailer, or a passer-by injured by an exploding bottle, or a
pedestrian hit by an automobile, have been denied
recovery. There may be no essential reason why such
plaintiffs should not be brought within the scope of the
protection afforded, other than that they do not have the
45
same reasons for expecting such protection as the
consumer who buys a marketed product; but the social
pressure which has been largely responsible for the
development of the rule stated has been a consumers’
pressure, and there is not the same demand for the
protection of casual strangers.
Second Restatement 402A, Comment o. Notably, when the Webb Court adopted the
Second Restatement, it simultaneously allowed a bystander injured by the explosion
of a keg his father had purchased from a beer distributor to assert a products liability
action against the keg manufacturer, brewer, and beer distributor under Section
402A of the Second Restatement.
Thereafter, federal and Pennsylvania state courts have issued somewhat
inconsistent decisions regarding a manufacturer’s liability to product users and
bystanders. The Third Circuit Court of Appeals observed in Berrier:
[T]he decisions of the Pennsylvania Superior Court
continue to struggle with the harsh consequences that the
“intended user doctrine” can sometimes have. See, e.g.,
Kiak v. Crown Equip[.] Corp., [989 A.2d 385 (Pa. Super.
2010)] (employee/non-user of forklift injured by coworker
operating the forklift permitted to proceed against
manufacturer of forklift under [Second Restatement]
Section 402A); Schmidt v. Boardman Co., 958 A.2d 498(Pa. Super. 2008) (bystanders who witnessed relatives
killed and/or injured by [a] defective [fire hose] allowed
to recover under [Second Restatement] Section 402A for
emotional distress even though they suffered no physical
injuries).
Berrier, 563 F.3d at 57 n.27. The inconsistent application has led to what the
Pennsylvania Supreme Court has “recognize[d as] the continuing state of disrepair
in the arena of Pennsylvania strict-liability design defect law.” Beard v. Johnson &
Johnson, Inc., 41 A.3d 823, 836 (Pa. 2012).
As a result, the Tincher Court stated:
The preferable solution may be to have the General
Assembly address this arena of substantive law. But, so
46
long as the possibility of comprehensive legislative reform
remains unlikely or uncertain, this Court retains the
authority and duty at common law to take necessary
action to avoid injustice, uncertainty, delay, and the
possibility of different standards and procedures being
employed in different courtrooms throughout the
Commonwealth.
Id. at 381 (emphasis added). In light of the foregoing, it is not clear that Defendants
did not owe a duty to Plaintiffs or the general public to make their products safe for
the environment.
“To demonstrate a breach of duty in a strict liability matter, a plaintiff
must prove that a seller (manufacturer or distributor) placed on the market a product
in a ‘defective condition.’” Tincher, 104 A.3d at 384. “Under [Second Restatement
Section 402A], it is irrelevant if a product is designed with all possible care,
including whether it has complied with all industry and governmental standards,
because the manufacturer is still liable if the product is unsafe.” Sullivan, 253 A.3d
at 747.
The Pennsylvania Supreme Court has recognized that “courts across
jurisdictions have struggled to articulate the legal notion of ‘defect’ in a way that
would . . . encompass[] the myriad [of] products on the market, in a way that can
effectively resonate with a jury[,]” and that “[t]he difficulty persists particularly with
respect to defects in design.” Id.
[T]he common law principles that delineate the strict
liability cause of action, and the limits upon strict liability,
reflect a balance of interests respecting what is socially or
economically desirable. . . .
....
Against this background, two standards have emerged[]
that purport to reflect the competing interests of
consumers and sellers, upon which all American
jurisdictions judge the adequacy of a product’s design: one
measures “consumer expectations,” and articulates the
47
standard more from the perspective of the reasonable
consumer; the second balances “risk” and “utility,” and
articulates the standard more from the perspective of the
reasonable seller.
Tincher, 104 A.3d at 386-87.
Under the consumer expectations standard, [which derives
from Section 402A of the Second Restatement,] a plaintiff
may prove “the product is in a defective condition if the
danger is unknowable and unacceptable to the average or
ordinary consumer.” [Tincher, 104 A.3d at 387.] The
consumer expectations standard is applicable in cases
where the question of how safely the product should have
performed can be answered by the common experience of
its users. The [Tincher] Court went on to recognize that a
consumer expectation test might not suffice to address all
factual situations, requiring it to be supplemented with a
risk-utility standard. [Id. at 389.]
Under the [more negligence-derived] risk-utility standard,
“a product is in a defective condition if a ‘reasonable
person’ would conclude that the probability and
seriousness of harm caused by the product outweigh the
burden or costs of taking precautions.” [Id.] The Court in
Tincher explicitly . . . adopted [] the [approach employed
by the] California Supreme Court in Barker [v. Lull
Engineering Co., 573 P.2d 413 (Cal. 1978),] which
identified the following factors as relevant to the risk-
benefit balancing test for determining whether there is a
design defect: (1) the gravity of danger posed by the
challenged design; (2) the likelihood that such danger
would occur; (3) the mechanical feasibility of a safer
alternative design; (4) the financial cost of an improved
design; and (5) the adverse consequences to the product
and to the consumer that would result from an alternative
design.
Tincher - The New Std. in Prod. Liab., 3 West’s Pa. Prac., Torts: Law & Advocacy
§ 9.4.50 (footnotes omitted); see also Tincher.
The Tincher Court recognized that the consumer expectations test had
the following theoretical and practical limitations:
48
First, products whose danger is obvious or within the
ordinary consumer’s contemplation would be exempt
from strict liability; some therefore have said that related
consumer safety expectations regarding the presence of
the danger are too low. See, e.g., Ahrens v. Ford Motor
Co., 340 F.3d 1142 (10th Cir. 2003) (affirming district
court decision that manufacturer not liable for defective
design of tractor without seatbelt or for failing to warn of
danger because plaintiff failed to adduce sufficient
evidence that risk of danger was beyond contemplation of
ordinary consumer). Second, a product whose danger is
vague or outside the ordinary consumer’s contemplation
runs the risk of being subjected to arbitrary application of
the strict liability doctrine; jury determinations of
consumer expectations regarding the presence of danger
are unpredictable. This difficulty is characteristic of
products of relatively complex design.
Tincher, 104 A.3d at 388. The risk-utility test has the following shortcoming:
The goal and strength of a pure risk-utility test is to
achieve efficiency or “to maximize the common good”;
yet, this is also its perceived weakness. See [David G.
Owen, PRODUCTS LIABILITY LAW, [] § 5.6 (Hornbook
Series) (2d ed. 2008)], at 316. For, while efficiency is
certainly a salutary goal of the law, it is not its only
purpose and, in some respects, it conflicts with bedrock
moral intuitions regarding justice in determining proper
compensation for injury to persons or property in
individual cases. Compare id. at 318 (“manufacturer
applying cost-benefit analysis to safety decision-making
in good faith thereby necessarily respects the equality and
safety rights of consumers as a group”) with[,] William E.
Nelson, THE MORAL PERVERSITY OF THE HAND
CALCULUS,[23] 45 St. Louis U.L.J. 759, 761 (2001)
(describing limitations of risk-utility analysis in
negligence context; “[U]ltimately the Hand calculus is not
about social efficiency, love, friendship or moral
arrogance. It is only about compensation. The Hand
calculus does not tell an entrepreneur whether or not to
23
The Honorable Learned Hand’s calculus specified: “[I]f the probability be called P; the
injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e.,
whether B [is] less than PL.” United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.
1947).
49
engage in conduct that will hurt one person and help
another. . . . The Hand calculus serves a much narrower
function. It tells an entrepreneur only that, if she engages
in conduct that causes others to lose more than she gains,
she will have to compensate them for their losses, but that,
if she gains more than they lose, no duty of compensation
will arise. . . . It is this very narrowness of the Hand
calculus that makes it so morally perverse. . . .”). We
should be mindful that public policy adjusts expectations
of efficiency and intuitions of justice considerations,
informing a seller’s conduct toward consumers as a group,
and ensuring proper compensation in individual cases by
judicial application of the strict liability cause of action.
Tincher, 104 A.3d at 399-00.
Therefore, the Tincher Court announced:
[I]n Pennsylvania, the cause of action in strict products
liability requires proof, in the alternative, either of the
ordinary consumer’s expectations or of the risk-utility
of a product.[24] To maintain the integrity and fairness of
the strict products liability cause of action, each part of this
24
Hence, Defendants’ argument that Plaintiffs’ claim fails under the consumer
expectations test because PCBs are a relatively complex design “far beyond the knowledge of the
ordinary consumer,” Defendants’ Supporting Br. at 25-26, even if true, does not alone preclude
Plaintiffs’ design defect claim.
In addition, Defendants’ assertion that, “[u]nder Pennsylvania law, the plaintiff is required
to establish the existence of a safer alternative design,” Defendants’ Supporting Br. at 26, is
incorrect. The cases Defendants cite in support of their declaration, Duchess v. Langston Corp.,
769 A.2d 1131 (Pa. 2001), and Lance, state that alternative design is merely one of the factors to
be considered. The Lance Court clarified:
Neither [the defendant] nor its amicus . . . have cited any decision of
th[e Pennsylvania Supreme] Court making an alternative safer
design an absolute prerequisite to any and all design-based claims
(although this is the general approach of the [Third] Restatement [],
outside special contexts such as those involving prescription drugs
and medical devices[.] . . .).
Lance, 85 A.3d at 459 n.36. Moreover, although alternative design is referenced in the Third
Restatement, that has yet to be adopted as Pennsylvania law. Therefore, any purported failure by
Plaintiffs to propose an alternative design is not preliminarily fatal to Plaintiffs’ design defect
claim.
50
standard of proof remains subject to its theoretical
limitations . . . . We believe that the demands of strict
liability policy are met because the composite standard
retains the best functioning features of each test, when
applied in the appropriate factual context.
Id. at 401 (emphasis added).
Modern decisional law reflects that the focus of disputes -
or at least those disputes making their way into the
appellate courts - has increasingly been upon the
negligence-derived risk-utility alternative formulation of
the standard. The prominence of the legal issue in
decisional law coincides with the advent of design defect
claims, in which issues of proof tend to more complexity
[sic] than where a manufacturing defect is in dispute. This
development reflected the complex litigation calculus
implicated in a strict liability claim premised upon this
type of defect resulting from either lack of proof (for
example in the case of known or foreseeable risks for
which an available cure may or may not have been
available at the time of design) or the relative deterrent
inefficacy of a theory of liability for unknowable risks,
short of exiting the market.
Id. at 403-04.
Relying on Tincher, the Pennsylvania Superior Court concluded that,
although strict liability remains the standard in Pennsylvania, such that “[n]egligence
principles are not used in determining whether the manufacturer exercised due care
in the design and manufacture of the product[,]”
[r]easonableness or foreseeability may be taken into
consideration in other aspects of liability such as
‘negligence-derived defenses, bystander compensation, or
the proper application of the intended use doctrine.’
Tincher[, 104 A.3d] at 409. Generally, those concepts
may be used in determining whether, in light of its inherent
dangers, the product fails to satisfy either discernable
consumer expectations of safety or a risk/utility analysis.
Sullivan, 253 A.3d at 746.
51
Finally, the Tincher Court held:
Going forward, consistent with this decision, when a
plaintiff proceeds on a theory that implicates a risk-utility
calculus, proof of risks and utilities are part of the burden
to prove that the harm suffered was due to the defective
condition of the product. The credibility of witnesses and
testimony offered, the weight of evidence relevant to the
risk-utility calculus, and whether a party has met the
burden to prove the elements of the strict liability cause
of action are issues for the finder of fact, whether that
finder of fact is judge or jury. A question of whether the
party has met its burden of proof is properly “removed” -
for example, via adjudication of a dispositive motion -
“from the jury’s consideration only where it is clear that
reasonable minds [cannot] differ on the issue.” Hamil v.
Bashline, . . . 392 A.2d 1280, 1284-85 ([Pa.] 1978).
Tincher, 104 A.3d at 428 (emphasis added). The U.S. District Court for the Western
District of Pennsylvania recently interpreted: “The Pennsylvania Supreme Court in
Tincher held that the issue of a product’s defect is generally for the jury to resolve.”
Whyte v. Stanley Black & Decker, Inc., 514 F. Supp. 3d 684, 698 n.7 (W.D. Pa.
2021); see also Amig v. Cnty. of Juniata, 432 F. Supp. 3d 481, 489 (M.D. Pa. 2020)
(“Pennsylvania’s new approach to design defect liability leaves open the ability to
introduce negligence-based evidence . . . .”).
In the instant case, Plaintiffs allege relative to design defect:
278. At all relevant times, Defendants were in the business
of designing, engineering, manufacturing, developing,
marketing, and selling commercial PCB formulations.
279. Defendants’ PCB mixtures and PCB-containing
products were not reasonably safe as designed at the time
they left Defendants’ control.
280. Defendants’ PCB mixtures’ toxicity, ability to bio-
accumulate, inability to be contained, and environmental
persistence rendered them unreasonably dangerous at all
times.
52
281. Defendants’ PCB mixtures were unsafe as designed,
as demonstrated by numerous studies as well as the U.S.
Congress’ and [the] EPA’s prohibition on the production
and sale of commercial PCBs in 1979 pursuant to the
TSCA.
282. Defendants knew or should have known their PCB
mixtures were not safe and were likely to contaminate
natural resources within the Commonwealth, and cause
toxic contamination of the Commonwealth’s natural
resources.
283. Defendants knew or should have known their PCB
mixtures were unsafe to an extent beyond that which
would be contemplated by an ordinary person because of
the information and evidence available to them associating
PCB exposure with adverse human and animal health
effects as well as the overwhelming seriousness of
creating widespread environmental contamination.
284. These risks were not obvious to the Commonwealth
or the public.
285. Defendants manufactured, distributed, marketed,
promoted, and sold PCB mixtures despite such knowledge
in order to maximize their profits despite the foreseeable
and known harms.
286. The seriousness of the environmental and human
health risk posed by Defendants’ products far outweighs
any social utility of Defendants’ conduct in manufacturing
their commercial PCB mixtures and concealing the
dangers posed to human health and the environment.
287. The rights, interests, and inconvenience to the
Commonwealth and general public far outweigh the
rights, interests, and inconvenience to Defendants, which
profited heavily from the manufacture, sale, and
distribution of its commercial PCB mixtures.
288. Practical and feasible alternative designs capable of
reducing the Commonwealth’s injuries were available.
Such alternatives include mineral oils, silicone fluids,
vegetable oils, and nonfluid insulating chemicals, as
evidenced by the rapid replacement of PCBs by such
alternatives upon the prohibition of PCBs, as well as
53
alternative chemical formulations and/or additional
chemical processing measures Defendants could have
taken to enhance the safety of their PCB mixtures.
Alternative chemical formulations that would have
reduced the Commonwealth’s injuries include a reduction
of chlorine content in all PCB products, which would have
materially decreased the environmental persistence and
toxicity of PCBs without eliminating their typical
applications or utilities.
289. Defendants’ conduct caused the presence of PCBs in
the Commonwealth and subsequent injury to the public
interest, including the physical and economic health and
well-being of the Commonwealth’s citizens and the
public’s free use and comfortable enjoyment of the
Commonwealth’s natural resources for commerce,
navigation, fishing, recreation, and aesthetic enjoyment.
290. The Commonwealth has suffered and will continue
to suffer injuries to its natural resources, and damages to
its public treasury as a result of Defendants’ conduct and
the presence of PCBs within the Commonwealth.
....
292. Defendants are strictly liable for all damages arising
out of their defectively designed PCB mixtures.
Complaint ¶¶ 278-290, 292.
As required to plead a valid design defect claim, Plaintiffs allege that
Defendants’ PCB products were defective, the products were defective when they
left Monsanto’s hands, and the defects harmed the public and/or Plaintiffs’ natural
resources. See Barton. Further, it does not appear that Pennsylvania law expressly
prohibits what Defendants dubbed “Plaintiffs’ novel theory [that] the ‘intended user’
would be the general public regardless of who used the product.” Defendants’
Supporting Br. at 23. Because Plaintiffs are charged with and have police power to
protect the Commonwealth’s citizenry and natural resources, they cannot fall under
the category of casual bystanders. See Alfred L. Snapp & Son, Inc.; see also Tenn.
Copper Co.; Missouri; Rhode Island; Bull HN Info. Sys., Inc.; Amerada Hess Corp.
54
Finally, although this Court acknowledges “the general rule [] that there is no strict
liability in Pennsylvania relative to non-intended uses even where foreseeable by a
manufacturer[,]” and Pennsylvania courts have “construed the intended use criterion
strictly,” Pa. Dep’t of Gen. Servs. v. U.S. Min. Prods. Co., 898 A.2d 590, 600-01
(Pa. 2006), at this early stage, this Court cannot declare that PCB dumping, spillage,
and disposal are not intended nor logical extensions of the actionable uses of
Defendants’ PCB products. See Amig (wherein the District Court determined that
plaintiff’s argument - that corrections officers’ misuse of a manufacturer’s drug test
did not preclude her product liability claim because the manufacturer can still be
liable for unintended uses that are highly predictable and foreseeable - was sufficient
for her claim to survive a motion to dismiss).
We thus decline to commit a judicial overreach by
prematurely considering such a critical issue at this
juncture, finding that such a landmark determination is
most appropriately deferred for resolution until the Court
has before it a fully developed factual record.
Accordingly, we conclude . . . that it is improvident to
reach the merits of this issue or to extend the cases
cited . . . at this stage of the litigation . . . .
Roth v. Cabot Oil & Gas Corp., 919 F. Supp. 2d 476, 492 (M.D. Pa. 2013).
[Plaintiffs’] allegations are enough to survive preliminary
objections. . . . A more precise identification of the design
defect . . . is a matter for discovery and reports from
experts . . . . But in a complaint, it is only necessary to
state the material facts “in a concise and summary form.”
Pa.R.Civ.P. 1019(a). [The C]omplaint accomplishes this
task by furnishing a concise overview of the defects that
[Plaintiffs’] intend[] to prove.
. . . . [Plaintiffs] need not rule out all other possible causes
of harm in [the C]omplaint; [they] need only allege a cause
(or causes) of harm for which [Defendants are] liable
under the law. [Plaintiffs] fulfill[] this mission by alleging
concisely that [Defendants] are liable under [Second
Restatement S]ection 402A for various defects in [their
55
products]. The possibility that [the contamination]
resulted from other causes, or that [Defendants’ PCB
products] had no defects at all, are issues for the parties to
litigate during discovery, at summary judgment, and, if
necessary, at trial.
Barton, 124 A.3d at 355-56; see also Piccolini v. Simon’s Wrecking, 686 F. Supp.
1063 (M.D. Pa. 1988) (when many factors determine whether a manufacturer is
strictly liable for harm caused by its product, and the District Court cannot find as a
matter of law that the plaintiffs have failed to allege a claim upon which relief can
be granted, because the District Court requires a more complete record, a motion to
dismiss a strict liability claim will be denied); Baltimore.
“[A]ccept[ing] as true all well-pleaded material allegations in the
[Complaint and the documents attached thereto], as well as all inferences reasonably
deduced therefrom[,]” and resolving any doubt in favor of overruling the preliminary
objection, as we must, because it does not “appear with certainty that . . . [Plaintiffs
have failed to state a legally sufficient design defect claim against Defendants],”
Torres, 997 A.2d at 1245 (emphasis added), Defendants’ PO 4 (Demurrer - Design
Defect Claim) is overruled.
PO 5 (Demurrer - Failure to Warn and Instruct Claim)
Defendants object to Plaintiffs’ Third Cause of Action - Failure to Warn
and Instruct - on the basis that Monsanto owed no duty to warn or continue to warn
Plaintiffs or the general public about the alleged environmental harm. Rather,
Defendants claim their duty to warn extended only to intended users and consumers
of their product, and whatever duty they may have had ended when Defendants
ceased production of PCBs in 1977.
“The jurisprudence of strict liability for failure to warn [] developed in
parallel[]” to strict liability for design defect. Tincher, 104 A.3d at 367 n.13. Thus,
56
“[i]t has long been the law in Pennsylvania that a ‘defective condition’ includes the
lack of adequate warnings or instructions required for a product’s safe use.” Walton,
610 A.2d at 458. The Pennsylvania Superior Court has explained:
Under Pennsylvania law, it is well established that a
dangerous product can be considered defective for
strict liability purposes if it is distributed without
sufficient warnings to notify the ultimate user of the
dangers inherent in the product. Mackowick v.
Westinghouse Elec[.] Corp., . . . 575 A.2d 100, 102 ([Pa.]
1990). Comment j to [Section] 402A of the [Second]
Restatement . . . states that the maker of an unreasonably
dangerous product may be required to warn potential users
of the product’s dangerous propensities. Comment i to
[Section] 402A [of the Second Restatement] states the
following guideline to use in determining whether a
product is “unreasonably dangerous” and thus requires
warnings: “The article sold must be dangerous to an extent
beyond that which would be contemplated by the ordinary
consumer who purchases it, with the ordinary knowledge
common to the community as to its characteristics.” Ellis
v. Chicago Bridge [&] Iron Co., . . . 545 A.2d 906, 911
([Pa. Super.] 1988) . . . .
Jordon by Jordon v. K-Mart Corp., 611 A.2d 1328, 1331 (Pa. Super. 1992)
(emphasis added).
Comment j to Section 402A of the Second Restatement expounds, in
relevant part:
Where . . . the product contains an ingredient to which
a substantial number of the population are allergic, and the
ingredient is one whose danger is not generally known,
or if known is one which the consumer would
reasonably not expect to find in the product, the seller
is required to give warning against it, if he has
knowledge, or by the application of reasonable, developed
human skill and foresight should have knowledge, of the
presence of the ingredient and the danger. Likewise in the
case of poisonous drugs, or those unduly dangerous for
other reasons, warning as to use may be required.
57
Id., Comment j (emphasis added). A failure to warn includes a continuing duty to
warn of dangers of which the manufacturer becomes aware after the product is sold.
See Walton; Talarico v. Skyjack, Inc., 191 F. Supp. 3d 394 (M.D. Pa. 2016).
To succeed on a strict-liability failure-to-warn claim, the
plaintiff “must establish only two things: [(1)] that the
product was sold in a defective condition [sic]
‘unreasonably dangerous’ to the user, and [(2)] that the
defect caused plaintiff’s injury.” Phillips [v. A-Best Prods.
Co.], 665 A.2d [1167,] 1171 [(Pa. 1995)]; Pavlik v. Lane
Ltd., 135 F.3d 876, 881 (3d Cir. 1998) (citation omitted);
see also Dorshimer v. Zonar Sys., 145 F. Supp. 3d 339,
353 (M.D. Pa. 2015) (“The adequacy of the warning is
evaluated solely on the basis of whether the warning was
inadequate and a better warning would have prevented the
injury.” [])
....
The first element of a strict-liability claim is that the
product be defective. A product is defective if it has an
inadequate warning that made the product “unreasonably
dangerous.” Phillips, 665 A.2d at 1171; see also Pavlik,
135 F.3d at 881 (“[A]n otherwise properly designed
product may still be unreasonably dangerous (and
therefore ‘defective’) for strict liability purposes if the
product is distributed without sufficient warnings to
apprise the ultimate user of the latent dangers in the
product.”). Whether the product is “unreasonably
dangerous” is a question for the jury. See Tincher, 104
A.3d at 335 (“Whether a product is in a defective condition
is a question of fact ordinarily submitted for determination
to the finder of fact.”); Amato v. Bell & Gossett, 116 A.3d
607, 620 (Pa. Super. [] 2015).[FN]7 This question can be
removed from the jury “only where it is clear that
reasonable minds could not differ on the issue.” Tincher,
104 A.3d at 335; see also Goldenstein [v. Repossessors
Inc.], 815 F.3d [142,] 146 [(3d Cir. 2016)].
[FN]7
While the [Tincher C]ourt expressly limited
its holding to cases involving a defective design,
[it] also recognized that its decision “may have an
impact upon other foundational issues regarding
58
manufacturing or warning claims.” Tincher, 104
A.3d at 390, n.21, 431-32 (emphasis added). Since
then, Pennsylvania courts have held that the
question of a product’s defectiveness for a
failure-to-warn claim is for the jury to resolve.
See, e.g., Amato . . . , 116 A.3d [at] 620 . . . .
Whyte, 514 F. Supp. 3d at 697-98 (additional bold emphasis added).
The second element of a strict-liability failure-to-warn
claim is that the defective warning caused the plaintiff’s
injury. In other words, “the plaintiff must demonstrate that
the user of the product would have avoided the risk had he
or she been warned of it by the seller.” Phillips, 665 A.2d
at 1171. For the defendant-movant to prevail on summary
judgment, “the record must show that a reasonable fact
finder would be bound to find that [the plaintiff] was fully
aware of the risk of bodily injury [before his injury];
otherwise, we are presented with a genuine issue of fact
for the jury.” Pavlik, 135 F.3d at 884. Further, the
plaintiff “enjoys the benefit of a rebuttable presumption
that an adequate warning would have been heeded if it had
been provided.” Id. at 881; Davis v. Berwind Corp., . . .
690 A.2d 186, 190 ([Pa.] 1997).
Whyte, 514 F. Supp. 3d at 700.
Here, Plaintiffs’ failure to warn and instruct claim and its continuing
duty to warn25 consists of the following allegations:
291. Defendants are under a continuing duty . . . to warn
the Commonwealth, their customers, and the public about
the human and environmental risks posed by its PCBs, and
each day on which [they] fail[] to do so constitutes a new
injury to the Commonwealth.
....
294. At all relevant times, Defendants were in the business
of designing, engineering, manufacturing, developing,
marketing, and selling commercial PCB formulations.
25
This Court has extrapolated from Plaintiffs’ Continuing Tort/Harm Claims (discussed
relative to PO 8 below) their assertions that Defendants had a continuing duty to warn, and includes
that analysis in this discussion of PO 5 (Demurrer - Failure to Warn and Instruct).
59
295. As designers, engineers, manufacture[r]s, developers,
marketers, and sellers of commercial PCB formulations,
Defendants had a duty to provide reasonable instructions
and adequate warnings about the environmental and health
hazards posed by PCBs.
296. Defendants’ PCB mixtures and PCB-containing
products were not reasonably safe at the time they left
Defendants’ control because they lacked adequate
warnings.
297. At the time Defendants manufactured, distributed,
marketed, promoted, and sold PCB mixtures, they knew
their PCB mixtures were not safe and were likely to
contaminate natural resources within the Commonwealth,
and cause toxic contamination of the Commonwealth’s
natural resources.
298. Despite Defendants’ knowledge, Defendants failed to
provide adequate warnings that their PCB mixtures were
toxic and would contaminate the Commonwealth’s natural
resources and water systems.
299. Defendants could have warned of this danger but
failed to do so and intentionally concealed information in
order to maximize profits.
300. Defendants continued to conceal the dangers of PCBs
after they manufactured, distributed, marketed, promoted,
and sold PCBs.
301. Without adequate warnings or instructions,
Defendants’ PCB mixtures were unsafe to an extent
beyond that which would be contemplated by an ordinary
person.
302. Defendants knowingly failed to issue warnings or
instructions concerning the environmental and human
health dangers of PCBs, and their volatilization risks,
contrary to the manner in which a reasonably prudent
manufacturer would act in the same or similar
circumstances.
303. Defendants’ conduct caused and continues to cause
injury to the physical and economic health and well-being
of the Commonwealth’s citizens, as well as the public’s
60
free use and comfortable enjoyment of the
Commonwealth’s natural resources for commerce,
navigation, fishing, recreation, and aesthetic enjoyment.
304. The Commonwealth has suffered and will continue
to suffer injuries to its natural resources, and damages to
its public treasury as a result of Defendants’ conduct and
the presence of PCBs within the Commonwealth.
305. Defendants are under a continuing duty . . . to warn
the Commonwealth and the public about the human and
environmental risks posed by [Defendants’] PCBs, and
each day on which [they] fail[] to do so constitutes a new
injury to the Commonwealth.
306. Defendants are strictly liable for all damages arising
out of their failure to provide adequate warnings and
instructions.
....
319. Defendants are under a continuing duty . . . to warn
the Commonwealth, their customers, and the public about
the human and environmental risks posed by [their] PCBs,
and each day on which [they] fail[] to do so constitutes a
new injury to the Commonwealth.
Complaint ¶¶ 291, 294-306, 319.
In Exxon Mobil Corp., the U.S. District Court of Maryland, applying
Maryland products liability law that is substantially similar to Pennsylvania’s
products liability law, expressed:
Of course, there is no duty to “warn the world.” Gourdine
v. Crews, . . . , 955 A.2d 769, 786 ([Md.] 2008). However,
the duty to warn extends “‘not only to those for whose use
the chattel is supplied but also to third persons whom the
supplier should expect to be endangered by its use.’”
[Georgia Pac., LLC v.] Farrar, . . . 69 A.3d [1028,] 1033
[(Md. 2013)] (quoting [Second] Restatement, [Section]
388 [Comment] d). And, the [s]tate plausibly alleges that
the harm it suffered was a foreseeable result of defendants’
placement of MTBE gasoline into the Maryland market.
It avers that there was a large market for MTBE gasoline
in Maryland in the 1990s; that defendants were
61
responsible for all or substantially all of this market; and
that MTBE contamination is associated with all
transportation, storage, and use of MTBE gasoline. These
allegations plausibly establish that defendants had a duty
to warn the [s]tate of the dangers associated with MTBE
because they created and controlled a market for products
in the [s]tate that posed unique, substantial harms to its
resources. See In re MTBE, 175 F. Supp. 2d 593, 625-26
(S.D.N.Y. 2001) (finding that plaintiffs plausibly alleged
that defendants owed them a duty to issue warnings for
MTBE gasoline where, although the plaintiffs did not
allege that the contamination of their wells was the result
of their own use of MTBE gasoline, the allegations
showed that their injuries were a foreseeable result of
defendants’ placement of MTBE gasoline in the
marketplace).
Exxon Mobil Corp., 406 F. Supp. 3d at 463-64 (internal record citations and
quotation marks omitted).
Defendants in Baltimore similarly challenged the complaint on the
basis that they had no duty to warn the general public of PCB dangers. The
Baltimore Court refused to sustain Defendants’ preliminary objection, reasoning:
[H]ere [as in Exxon Mobil Corp.], the [c]ity alleges that
the Defendants, as the sole manufacturer of PCBs, knew
and expected that PCBs would cause widespread water
contamination and failed to provide any warnings to the
public. Accordingly, the [c]ity has sufficiently pled a
claim for strict product liability of failure to warn based on
Defendants’ duty to warn the general public, whom they
allegedly knew and expected would be endangered by
PCBs. See [Exxon Mobil Corp.,] 406 F. Supp. 3d at 463.
Baltimore, CV RDB-19-0483, 2020 WL 1529014, at *11 (internal record citations
omitted). The reasoning employed by the Exxon Mobil Corp. and Baltimore Courts
is persuasive here.
Plaintiffs expressly allege Defendants’ failure to warn and instruct.
These allegations are enough to survive preliminary
objections. . . . A more precise identification of the . . .
62
failure-to-warn defect is a matter for discovery and reports
from experts . . . . But in a complaint, it is only necessary
to state the material facts “in a concise and summary
form.” [Pa.R.Civ.P. 1019(a)]. [The C]omplaint
accomplishes this task by furnishing a concise overview
of the defects that [Plaintiffs’] intend[] to prove.
Barton, 124 A.3d at 356; see also Piccolini.
“[A]ccept[ing] as true all well-pleaded material allegations in the
[Complaint and the documents attached thereto], as well as all inferences reasonably
deduced therefrom[,]” and resolving any doubt in favor of overruling the preliminary
objection, as we must, because it does not “appear with certainty that . . . [Plaintiffs
have failed to state a legally sufficient failure to warn and instruct claim against
Defendants],” Torres, 997 A.2d at 1245 (emphasis added), Defendants’ PO 5
(Demurrer - Failure to Warn and Instruct Claim) is overruled.
PO 6 (Demurrer - Negligence Claim)
Defendants object to Plaintiffs’ Fourth Cause of Action - Negligence -
on the basis that Plaintiffs failed to plead the essential elements of a negligence
theory, and seek judicial recognition of an expansive new duty in the product
manufacturer to the public at large to protect the environment not only from the
intended use, but also the disposal, spillage, leakage, and dumping of their PCB
products, by third parties, contrary to Pennsylvania law. Specifically, Defendants
claim that they do not have a duty to protect against every possible risk to every
member of the public at large, so they “owed no duty to Plaintiffs (or the general
public) under Pennsylvania law. Additionally, [they] owed no duty to protect
Plaintiffs from alleged harm caused by the disposal, spillage, or leakage of PCBs by
third parties over whom [Monsanto] had no control.” Defendants’ Supporting Br. at
30.
63
In their brief, Plaintiffs declare that the factors spelled out in Althaus v.
Cohen, 756 A.2d 1166 (Pa. 2000), overwhelmingly weigh in favor of finding that
Defendants owed a duty to the Commonwealth and its residents. Specifically,
Plaintiffs assert: (1) the symbiotic relationship between state government and the
businesses that avail themselves of such states’ markets weighs in favor of finding a
duty here; (2) the risk posed by Defendants’ conduct far outweighs the social utility
of their products, particularly given the myriad unnecessary uses for which
Defendants marketed them; (3) Defendants were able to and did foresee the
environmental harm their PCB products were sure to cause; (4) recognizing the duty
Defendants already owe to use reasonable care, in the negligence claim context it
would not impose further costs, but would enable those adversely affected by
Defendants’ decisions to seek recourse; and (5) the public interest is served by
recognizing that Defendants had a duty to act with reasonable care towards those it
knew would suffer the consequences of environmental contamination with PCBs.
See Plaintiffs’ Br. at 36-37.
“In Pennsylvania, the elements of negligence are: a duty to conform to
a certain standard for the protection of others against unreasonable risks; the
defendant’s failure to conform to that standard; a causal connection between the
conduct and the resulting injury; and actual loss or damage to the plaintiff.”26
Brewington for Brewington v. City of Phila., 199 A.3d 348, 355 (Pa. 2018). “Of
these four elements, the primary one is whether the defendant owed a duty of care.
[See] Althaus[.]” Phillips v. Cricket Lighters, 841 A.2d 1000, 1008 (Pa. 2003)
(plurality).
26
“[A] plaintiff can rely on the same conditions for nuisance to state a separate negligence
claim if there is an allegation of a breach of a legal duty.” Lloyd v. Covanta Plymouth Renewable
Energy, LLC, 517 F. Supp. 3d 328, 332 (E.D. Pa. 2021).
64
“In general, anyone who does an affirmative act is under a duty to
others to exercise the care of a reasonable man to protect them against an
unreasonable risk of harm to them arising out of the act.” Second Restatement
§ 302, Comment a (emphasis added). This Court has clarified:
Whether a duty exists in any given situation depends
upon the relationship existing between the parties at a
particular time. Burman v. Golay [&] Co[.], Inc., . . . 616
A.2d 657 ([Pa. Super.] 1992) . . . . Where the parties are
strangers to each other, however, such a relationship may
be inferred from the general duty imposed on all persons
not to place others at risk of harm through their actions.
Alumni Assoc., Delta Zeta of Lambda Chi Alpha
Fraternity v. Sullivan, . . . 535 A.2d 1095 ([Pa. Super.]
1987), aff’d, . . . 572 A.2d 1209 ([Pa.] 1990).
However, the scope of this duty is limited; it is not the law
of Pennsylvania that a party owes a duty of care to every
individual with whom that party may randomly come into
contact. Rather, to the extent that there is any duty at all,
it is only a duty not to expose others to risks which are
reasonably foreseeable. Braxton v. Dep[’]t of
Transp[.], . . . 634 A.2d 1150 ([Pa. Cmwlth.] 1993)[.]
Hicks v. Metro. Edison Co., 665 A.2d 529, 532-33 (Pa. Cmwlth. 1995) (emphasis
added).
To determine whether the defendant owed a duty of care,
we must weigh the following five factors: “(1) the
relationship between the parties; (2) the social utility of the
[defendant’s] conduct; (3) the nature of the risk imposed
and foreseeability of the harm incurred; (4) the
consequences of imposing a duty upon the [defendant];
and (5) the overall public interest in the proposed
solution.” [Althaus, 756 A.2d] at 1169. No one of these
five factors is dispositive. Rather, a duty will be found to
exist where the balance of these factors weighs in favor of
placing such a burden on a defendant.
Cricket Lighters, 841 A.2d at 1008-09.
65
Here, Plaintiffs allege in the Complaint:
308. Defendants knew or should have known their PCB
mixtures were not safe and were likely to contaminate
natural resources within the Commonwealth, and cause
toxic contamination of the Commonwealth’s natural
resources.
309. Defendants knew or should have known their PCB
mixtures were unsafe to an extent beyond that which
would be contemplated by an ordinary person because of
the information and evidence available to them associating
PCB exposure with adverse human and animal health
effects as well as the overwhelming seriousness of
creating widespread environmental contamination.
310. Defendants failed to exercise ordinary care because a
reasonably careful company that knew or should have
known of its products’ toxicity, carcinogenicity,
harmfulness to humans, and harmfulness to the natural
environment would not manufacture or distribute those
products, or would warn of their toxic and
environmentally hazardous properties, or would take steps
to enhance the safety and/or reduce the toxicity and
environmental persistence of the products.
311. Defendants failed to exercise ordinary care because a
reasonably careful company that knew or should have
known that its products could not be contained during
normal production and use would not continue to
manufacture or distribute those products or would warn of
their dangers.
312. Defendants failed to exercise ordinary care because a
reasonably careful company would not continue to
manufacture or distribute PCB mixtures in mass quantities
and to the extent and in the applications that Defendants
manufactured and distributed them.
313. Defendants further were grossly negligent because
they failed to exercise even slight care, placing revenue
and profit generation above human and environmental
health and safety. Indeed, Defendants’ conduct was
wanton, willful, and showed a reckless disregard or
66
conscious indifference for the rights and safety of the
Commonwealth and its citizens.
314. Defendants owed the Commonwealth and its citizens
a duty of care in the manufacture, distribution, marketing,
promotion, and sale of PCB mixtures because it was
foreseeable to Defendants that their PCB mixtures would
end up in the Commonwealth’s natural resources,
including waterways, waterbodies, aquifers, soils, lands
and submerged lands, sediments, fish and animal tissue,
above-ground plants and food crops, biota, and air.
315. The seriousness of the environmental and human
health risk posed by Defendants’ products far outweighs
any social utility of Defendants’ conduct in manufacturing
their commercial PCB mixtures and concealing the
dangers posed to human health and the environment.
316. The rights, interests, and inconvenience to the
Commonwealth and general public far outweigh the
rights, interests, and inconvenience to Defendants, which
profited heavily from the manufacture, sale, and
distribution of [their] commercial PCB mixtures.
317. Defendants’ negligent conduct caused and continues
to cause injury to the physical and economic health and
well-being of the Commonwealth’s citizens, as well as the
public’s free use and comfortable enjoyment of the
Commonwealth’s natural resources for commerce,
navigation, fishing, recreation, and aesthetic enjoyment.
318. The Commonwealth has suffered and will continue
to suffer injuries to its natural resources, and damages to
its public treasury as a result of Defendants’ negligent
conduct.
319. Defendants are under a continuing duty to act to
correct and remediate the injuries their conduct has
introduced and to warn the Commonwealth, their
customers, and the public about the human and
environmental risks posed by [their] PCBs, and each day
on which [they] fail[] to do so constitutes a new injury to
the Commonwealth.
67
Complaint ¶¶ 308-319. Plaintiffs have clearly pled that Defendants owed a duty of
reasonable care, they failed to exercise reasonable care, and Plaintiffs have suffered
and may continue to suffer harm and sustain damages because of Defendants’
purported failure to exercise reasonable care.
Regarding Defendants’ claim that Plaintiffs are attempting to impose a
new environmental tort duty on a product manufacturer to the general public, this
Court acknowledges that, in light of the General Assembly’s “superior tools and
resources[,]” the General Assembly is better suited than the courts to determine
whether a duty exists as a matter of law. Seebold v. Prison Health Servs., Inc., 57
A.3d 1232, 1245 (Pa. 2012). Moreover, the Pennsylvania Supreme Court “has []
adopted the default position that, unless the justifications for and consequences of
judicial policymaking are reasonably clear with the balance of factors favorably
predominating, [it] will not impose new affirmative duties.” Id. However, if and
when in the absence of legislative recognition that a change is warranted, “[b]efore
a change in the law is made, a court, if it is to act responsibly must be able to see
with reasonable clarity the results of its decision and to say with reasonable certainty
that the change will serve the best interests of society.” Cafazzo v. Cent. Med. Health
Servs., Inc., 668 A.2d 521, 527 (Pa. 1995) (quoting Hoven v. Kelble, 256 N.W.2d
379, 391 (Wis. 1977)); see also Seebold (applying this stricture to duty in a
negligence action). Accordingly, to the extent that Defendants in this case may not
already have a duty, if this Court can “say with reasonable certainty that the change
will serve the best interests of society[,]” Cafazzo, 668 A.2d at 527 (quoting Hoven,
256 N.W.2d at 391), it can establish a new affirmative duty.
Further, relative to Defendants’ claim that the public is beyond the orbit
of danger in this case, while bystanders are often determined to be beyond a
foreseeable orbit of danger, see Hicks, it is not outside the realm of possibility that
Plaintiffs could establish a sufficient relationship between Commonwealth
68
citizens/Plaintiffs’ natural resources and Defendants, such that Defendants owed a
duty to Plaintiffs. See Webb; Kiak; Schmidt.
The evidence Plaintiffs produce during discovery and/or trial could
potentially affect the determination of whether Defendants owed a duty of care to
the Commonwealth and/or its citizens, and whether the manufacture, distribution,
marketing, promotion, sale, disposal, spillage, or leakage of PCBs breached that
duty. Accordingly, whether Plaintiffs will ultimately be able to prove each of these
elements is a matter for the parties to determine after discovery, not now on
preliminary objections.
“[A]ccept[ing] as true all well-pleaded material allegations in the
[Complaint and the documents attached thereto], as well as all inferences reasonably
deduced therefrom[,]” and resolving any doubt in favor of overruling the preliminary
objection, as we must, because it does not “appear with certainty that . . . [Plaintiffs
have failed to state a legally sufficient negligence claim against Defendants],”
Torres, 997 A.2d at 1245 (emphasis added), Defendants’ PO 6 (Demurrer -
Negligence Claim) is overruled.
PO 7 (Demurrer - Unjust Enrichment Claim)
Defendants object to Plaintiffs’ Sixth Cause of Action - Unjust
Enrichment - on the basis that Plaintiffs failed to plead that the Commonwealth
conferred any benefit on Monsanto, that Plaintiffs requested or expected
compensation from Monsanto before undertaking any measures to investigate or
remediate PCBs or that they took any steps to secure an agreement from Monsanto
to compensate the Commonwealth, or that Monsanto has actually obtained,
appreciated, or accepted any benefit from the Commonwealth.
69
This Court has explained:
Unjust [e]nrichment is an equitable doctrine. Styer v.
Hugo, . . . 619 A.2d 347 ([Pa. Super.] 1993), aff[’]d, . . .
637 A.2d 276 ([Pa.] 1994). Under the doctrine, the law
implies that a contract exists when a party is found to have
been unjustly enriched; the doctrine requires the offending
party to pay the plaintiff the value of the benefit he has
conferred on the defendant. Mitchell v. Moore, 729 A.2d
1200 (Pa. Super. 1999) . . . . A party alleging that a
defendant has been unjustly enriched must establish the
following: (1) plaintiff conferred a benefit on the
defendant; (2) the defendant appreciated the benefit; and
(3) acceptance and retention by the defendant of the
benefit[], under the circumstances, would make it
inequitable for the defendant to retain the benefit without
paying for the value of the benefit. Styer, 619 A.2d at 350.
Further, a defendant need not have accepted and
appreciated the benefit intentionally; instead, the focus
remains on the question of whether the defendant has been
unjustly enriched. Torchia v. Torchia, . . . 499 A.2d 581([Pa. Super.] 1985). Additionally, the plaintiff bears the
burden of establishing either that the defendant wrongfully
secured the benefit or passively received a benefit that it
would be unconscionable to retain. Id.TAP II, 885 A.2d at 1137.
Plaintiffs assert in the Complaint:
326. The Commonwealth has incurred and will continue
to incur expenses in connection with PCB contamination
within the Commonwealth, including costs to investigate,
assess, analyze, monitor, and remediate or restore
impaired natural resources.
327. Defendants are responsible for the PCB
contamination that the Commonwealth has addressed and
will address, and in fairness, Defendants should have paid
these costs. It would be unjust for Defendants to retain the
benefit of the Commonwealth’s expenditures in
connection with PCB contamination of natural resources
within the Commonwealth.
Complaint ¶¶ 326-327.
70
“The elements of unjust enrichment are benefits conferred on defendant
by plaintiff, appreciation of such benefits by defendant, and acceptance and retention
of such benefits under such circumstances that it would be inequitable for defendant
to retain the benefit[s] without payment of value.” Lackner v. Glosser, 892 A.2d 21,
34 (Pa. Super. 2006) (internal citations and quotations omitted). “The most
significant element of the doctrine is whether the enrichment of the defendant is
unjust; the doctrine does not apply simply because the defendant may have benefited
as a result of the actions of the plaintiff.” Id. In consideration of the elements
necessary to establish unjust enrichment and the events that transpired in connection
with the remediation efforts of the Commonwealth’s affected natural resources, this
Court holds that Plaintiffs failed to state a claim for unjust enrichment as a matter of
law.
Accordingly, “accept[ing] as true all well-pleaded material allegations
in the [Complaint and the documents attached thereto], as well as all inferences
reasonably deduced therefrom[,]” and resolving any doubt in favor of overruling the
preliminary objection, as we must, because it “appear[s] with certainty that . . .
[Plaintiffs have failed to state a viable unjust enrichment claim against Defendants],”
Torres, 997 A.2d at 1245 (emphasis added); see also TAP II, Defendants’ PO 7
(Demurrer - Unjust Enrichment) is sustained.
PO 8 (Demurrer - Continuing Tort/Harm Claims)
Defendants object to Plaintiffs’ continuing tort/harm claims on the
basis that a continuing tort arises only if the tortfeasor engages in continuing harmful
conduct that causes ongoing injury and, in this case, because Plaintiffs acknowledge
71
that Defendants ceased production of PCBs in 1977, this action arises from
completed conduct, and Plaintiffs failed to state a continuing tort.27
This Court has ruled that “merely because . . . [a] harm is continuous in
nature does not make [a] cause of action . . . a continuing tort. See 2 S. Feldman,
P[a.] Trial Guide, § 22.11 (2d rev. ed[.] 1991).” Dellape v. Murray, 651 A.2d 638,
640 (Pa. Cmwlth. 1994). Where an “alleged tort . . . is one that arises from completed
conduct that caused continuing harm[,] . . . granting of [] judgment in favor of [the
defendant is] appropriate.” Id.Plaintiffs admit that Monsanto ceased production of PCBs in 1977.
Plaintiffs aver in the Complaint:
291. Defendants are under a continuing duty to act to
correct and remediate the injuries their conduct has
introduced . . . , and each day on which [they] fail[] to do
so constitutes a new injury to the Commonwealth.
....
305. Defendants are under a continuing duty to act to
correct and remediate the injuries their conduct has
introduced . . . , and each day on which [they] fail[] to do
so constitutes a new injury to the Commonwealth.
....
319. Defendants are under a continuing duty to act to
correct and remediate the injuries their conduct has
introduced . . . , and each day on which [they] fail[] to do
so constitutes a new injury to the Commonwealth.
Complaint ¶¶ 291, 305, 319.28
27
The parties did not argue this issue relative to any statute of limitations, which would
call for a different analysis.
28
Because this Court considered Plaintiffs’ continuing failure to warn in its analysis of PO
5 (Demurrer - Failure to Warn and Instruct), those allegations are not included relative to this PO
8 (Demurrer - Continuing Tort/Harm Claims).
72
To the extent that Plaintiffs’ Complaint asserts that Defendants harmful
conduct continues, since Defendants’ “alleged tort . . . ar[o]se[] from completed
conduct that [purportedly] caused continuing harm, . . . [sustaining the preliminary
objection as to that point] in favor of [Defendants is] appropriate.” Dellape, 651
A.2d at 640. However, it appears that Plaintiffs assert that Defendants had a
continuing duty to warn, which this Court addressed, supra, relative to PO 5
(Demurrer - Failure to Warn and Instruct), and a continuing duty to correct and
remediate the damages Defendants have caused, which this Court addresses below
relative to PO 9 (Demurrer - Damage Claims).
Accordingly, “accept[ing] as true all well-pleaded material allegations
in the [Complaint and the documents attached thereto], as well as all inferences
reasonably deduced therefrom[,]” and resolving any doubt in favor of overruling the
preliminary objection, as we must, because it “appear[s] with certainty that . . .
[Plaintiffs have failed to state a viable claim that Defendants’ purported harmful
conduct has continued],” Torres, 997 A.2d at 1245 (emphasis added), Defendants’
PO 8 (Demurrer - Continuing Tort/Harm) is sustained. However, because it does
not “appear with certainty that . . . [Plaintiffs have failed to state viable claims
against Defendants relative to Defendants’ continuing duty to warn and/or correct
and remediate damage purportedly caused by their conduct],” Torres, 997 A.2d at
1245 (emphasis added), Defendants’ PO 8 (Demurrer - Continuing Tort/Harm) is
overruled.
PO 9 (Demurrer - Damage Claims)
Defendants argue that Plaintiffs failed to plead viable damage claims
because public expenditures made in the performance of governmental functions are
73
not recoverable in tort;29 this is not an action for response costs and natural resource
damages pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA), 42 U.S.C. § 9601 (relating to definitions),30 or the
HSCA; and economic losses may not be recovered in tort absent physical injury or
damage to Commonwealth-owned property.
Plaintiffs respond that the Pennsylvania Supreme Court has not adopted
what Defendants term the free government services rule (more commonly called the
municipal cost recovery rule), nor does there appear to be any case nationwide in
which that rule was applied to bar claims by a sovereign. Plaintiffs further assert
they are entitled to recover damages for environmental harm and response costs
under common law, and the economic loss rule has never been applied to preclude
a sovereign proceeding as trustee or parens patriae from prosecuting common law
claims.
Plaintiffs claim in the Complaint, inter alia, that “the Commonwealth
has expended significant time and money to assess, investigate, and monitor PCB
contamination of its natural resources[,]” Complaint ¶ 159, including developing
TMDLs and fish and waterfowl advisories/monitoring necessitated by the PCB
contamination. See Complaint ¶¶ 160-249. Plaintiffs assert that “[t]he
Commonwealth has also invested significant sums in a variety of site-specific efforts
to assess, investigate, strategize, and implement remediation plans designed to
29
According to Plaintiffs, “the [government services] rule is intended to prevent
municipalities from charging the beneficiaries of police, firefighting, and similar services with
their costs.” Plaintiffs’ Br. at 40.
30
CERCLA “creates a private cause of action against responsible parties for the recovery
of necessary costs of response incurred which are part of a clean-up or response to a hazardous
waste problem.” Piccolini, 686 F. Supp. at 1067-68.
74
remove PCBs from [Commonwealth] waters, soils, and air[,] or otherwise minimize
the impact of PCBs on those media.” Complaint ¶ 250. Plaintiffs also allege:
254. As a result, the Commonwealth has incurred and will
continue to incur significant costs in connection with PCB
remediation and removal projects and the restoration of
damaged natural resources. Indeed, the Commonwealth
has already addressed or is in the process of addressing
PCB-contamination at more than 650 sites through its
Environmental Cleanup Program and will continue similar
remediation efforts well into the future.
255. Further still, since 1995, pursuant to its Brownfields
statute, the Land Recycling and Environmental
Remediation Standards Act, [Act of May 19, 1995, P.L.
4,] 35 P.S. §§ 6026.101-6026.90[8] (“Act 2”), the
Commonwealth has expended considerable resources in
reviewing and facilitating third-party cleanups of some
550 Commonwealth sites, at each of which PCBs have
posed costly investigative and remedial challenges.
256. Further still, Commonwealth landfills have received
thousands of pounds of PCB waste, including nearly
12,000 tons of PCB-containing waste from 2012 to 2018
alone, whose presence will continue to harm and threaten
additional harm to the environment into the indefinite
future.
257. In addition to these expenditures and losses, the
Commonwealth, through [] DEP and the [] FBC, has since
1998 collected and analyzed hatchery trout samples for
PCB contamination on an annual basis. Due to PCB
detections, the Commonwealth has had to reduce
production of fish. For instance, on at least one occasion,
specimens collected from the Huntsdale trout hatchery
revealed elevated PCB levels, resulting in the
Commonwealth temporarily taking that hatchery out of
production.
258. The Commonwealth and its residents have suffered
significant loss of use of [the Commonwealth’s] natural
resources, loss of important ecosystem services, and loss
of the value of property, among other injuries attributable
to Monsanto’s conduct.
75
....
304. The Commonwealth has suffered and will continue
to suffer injuries to its natural resources, and damages to
its public treasury as a result of Defendants’ conduct and
the presence of PCBs within the Commonwealth.
Complaint ¶¶ 254-258, 304; see also Complaint ¶¶ 11-17.
In their Complaint prayer for relief, Plaintiffs seek:
A. Damages for injury to the Commonwealth’s natural
resources, including the economic impact to the
Commonwealth and its residents from loss of use, value,
benefits, ecological services, or other injuries resulting
from the conduct alleged herein;
B. An award of past, present, and future costs to
investigate, assess, analyze, monitor, remediate, restore,
and/or replace natural resources injured due to
Defendants’ conduct;
C. Any other damages, including punitive or exemplary
damages, as permitted by law;
D. A judicial determination that each Defendant is liable
for future costs related to the investigation, remediation
and removal of PCBs from Commonwealth natural
resources;
E. An order requiring Defendants to return all monies by
which Defendants were unjustly enriched as a result of the
Commonwealth’s expenditures in connection with PCB
contamination within the Commonwealth;
F. Litigation costs and attorneys’ fees as permitted by law;
G. Pre-judgment and post-judgment interest on all monies
awarded, as permitted by law; and
H. Such other and further relief as the Court deems just
and proper.
Complaint, ad damnum clause, at 82-84.
76
Regarding Defendants’ argument that, since Plaintiffs have a fiduciary
duty to conserve and maintain public natural resources, they are prohibited from
recovering costs incurred in the performance of those governmental functions, this
Court acknowledges it has held:
[A] municipal corporation may not recover as damages the
costs of services the provision of which was an important
reason for its creation and maintenance by the people. The
cost of public services for protection from a safety hazard
is to be borne by the public as a whole, not assessed against
a tortfeasor whose negligence creates the need for the
service.[31]
City of Pittsburgh v. Equitable Gas Co., 512 A.2d 83, 84 (Pa. Cmwlth. 1986)
(citations omitted). The municipal cost recovery rule has been applied in
Pennsylvania in only a few instances. See id.; see also Delaware Cnty. Pa. v. Purdue
Pharma, L.P. (C.P. Del. Cnty. CV-2017-008095, filed Mar. 13, 2020);32
Commonwealth v. Gen. Pub. Utils. Corp., 710 F.2d 117 (3d Cir. 1983);33 Beretta.
Importantly, those cases were primarily limited to municipal rather than state
government costs, did not specifically address environmental damage and, as this
31
“[C]ertain exceptions to the general rule have been created by statutory enactment to
give a municipality a claim for expenditures for fire fighting and other police power services.”
Koch v. Consol. Edison Co. of N.Y., Inc., 468 N.E.2d 1, 8 (N.Y. 1984).
32
See Plaintiffs’ Supporting Br. Ex. 1 at 5-6.
33
In In re TMI Litigation Governmental Entities Claims, 544 F. Supp. 853 (M.D. Pa. 1982),
vacated sub nom., Commonwealth v. General Public Utilities Corp., 710 F.2d 117 (3d Cir. 1983),
upon which Defendants rely to argue that the Commonwealth is prohibited from recovering costs
of its government operations, the trial court granted summary judgment in the defendants’ favor.
However, in General Public Utilities Corp., the Third Circuit Court of Appeals vacated and
remanded TMI Litigation damage rulings for the plaintiffs to have the opportunity to prove their
damages, including based on their theory that a nuclear incident presented a unique type of hazard
for which recovery of government service costs should be permitted. The General Public Utilities
Corp. Court concluded that the plaintiffs should have been permitted to develop facts to support
their damage claims before judgment was entered against them. General Public Utilities Corp.
was later superseded by statute on other grounds.
77
Court observed in Equitable Gas, did not prohibit the governments from seeking to
recover for other types of losses.
In Koch v. Consolidated Edison Co. of New York, Inc., 468 N.E.2d 1, 7
(N.Y.2d 1984), the New York Court of Appeals concluded that, to the extent the
plaintiffs could prove them, “plaintiffs would be entitled . . . to recover damages
[from the electrical utility whose negligence caused a citywide blackout] for physical
injury to persons and property[,]” plus “damages resulting from looting and
vandalism by rioters[.]” Id. at 7. The municipal recovery rule does not expressly
prohibit public entities, or a state trustee of natural resources, in particular, from
recovering damages for injuries to public resources.
In Lead Industries, the Rhode Island Superior Court refused to apply
the municipal cost recovery rule to dismiss the state’s action against several lead
pigment manufacturers and, thus, allowed the state to proceed and prove that it
incurred substantial costs to discover and abate lead, detect lead poisoning, and
provide education programs and medical care for lead-poisoned state residents. The
Lead Industries Court concluded:
[T]he defendants’ motions to dismiss must be examined in
the context of the well-established powers of the Attorney
General to redress public wrongs [on the state’s behalf].
To adopt the free public services rule and dismiss this
action [], particularly in the absence of controlling caselaw
requiring such a rule, would ignore existing authority of
the Attorney General, as for example, with respect to his
right to bring a public nuisance action.
Lead Indus., 2001 WL 345830, at *5. This Court finds the Koch and Lead Industries
Courts’ reasoning persuasive here. Therefore, it does not appear with certainty that
Plaintiffs’ damage claims are precluded by the municipal cost recovery rule.
Defendants also challenge Plaintiffs’ damage claims on the basis that,
since response costs and natural resource damages are purely statutory, and Plaintiffs
78
failed to bring this action pursuant to the CERCLA and the HSCA, Plaintiffs are not
entitled to such costs. Defendants cite to Department of Environmental Protection
v. Delta Chemicals, Inc., 721 A.2d 411 (Pa. Cmwlth. 1998), to support their
conclusion that response costs and natural resource damages are limited to statutory
remedies.
However, Plaintiffs specifically claimed, inter alia, that the
Commonwealth/DEP was authorized to recover for damages to natural resources
under the HSCA. See Complaint ¶ 24; see also discussion relative to PO 1
(Demurrer - Lack of Standing), supra. Section 103 of the HSCA defines “natural
resources” as “[l]and, fish, wildlife, biota, air, water, groundwater, drinking water
supplies and other resources belonging to, managed by, held in trust by, appertaining
to or otherwise controlled by the United States, the Commonwealth or a political
subdivision. The term includes resources protected by [the ERA].” 35 P.S. §
6020.103 (emphasis added). The HSCA does not expressly limit damages to only
natural resources belonging to the Commonwealth but, rather, appears to authorize
damages for natural resources that the Commonwealth and/or the federal
government and/or any local governments manage, hold in trust, or otherwise
control.
Moreover, the HSCA does not limit the Commonwealth/DEP to only
the statutory damages described therein. Notably, this Court’s statement in Delta
Chemicals that “response costs and natural resource damages . . . are entirely
statutory remedies[,]” id. at 415 (emphasis omitted), was not made relative to an
analysis of whether the Commonwealth or its agencies may seek damages for
environmental contaminations but, rather, in the context of whether this Court has
concurrent jurisdiction with the DEP’s Environmental Hearing Board in cases
involving equitable versus statutory remedies. In that respect, Delta Chemicals is
inapposite. Further, Section 1107 of the HSCA, 35 P.S. § 6020.1107, declares that
79
it does not estop the Commonwealth/DEP from seeking other existing and
cumulative rights and remedies. In addition, Section 9614(a) of CERCLA, 42
U.S.C. § 9614(a), likewise allows a state to impose additional liability for release of
hazardous substances within a state. Therefore, it does not appear with certainty that
Plaintiffs’ damage claims are limited to Commonwealth-owned natural resources or
to the statutory damages set forth in the HSCA and/or the CERCLA.
Regarding Defendants’ declaration that Pennsylvania law does not
permit the Commonwealth to recover damages for harm to natural resources that it
does not own, this Court incorporates herein its earlier analysis of Defendants’ PO
1 (Demurrer - Lack of Standing). In particular, this Court concluded that a state, as
parens patriae, has an interest in the well-being of its populace, and an interest in its
natural resources that surpasses its citizens’ titles. See Alfred L. Snapp & Son, Inc.;
see also Rhode Island; Tenn. Copper Co. Certainly, while possessory interests are
usually for individual owners themselves to protect, when the harm to such interests
is as widespread as alleged in the state’s complaint, it counts as injury not just to the
affected individuals, but to the state as a whole. See Missouri; see also Bull HN Info.
Sys., Inc., 16 F. Supp. 2d at 102 (allowing state to bring parens patriae suit where it
had “alleged conduct that has potentially wide-spread impacts . . . that [were]
unlikely to be addressed fully if the controversy [was] cabined in the realm of private
litigation”); Rhode Island.
Further, the Commonwealth’s technical ownership of its waters and
other natural resources gave it the legal right to sue on the public’s behalf, stating
that
if the [s]tate is deemed to be the trustee of the waters [and
other natural resources], then, as trustee, the
[Commonwealth] must be empowered to bring suit to
protect the corpus of the trust - i.e., the [natural resources]
- for the beneficiaries of the trust - i.e., the public.
80
Amerada Hess Corp., 350 F. Supp. at 1067. Accordingly, Defendants’ argument
that the Commonwealth may not seek to recover damages for harm to natural
resources that it does not own lacks merit based on the allegations herein.
Finally, Defendants claim that Plaintiffs may not recover economic
losses in tort absent physical injury or damage to Commonwealth-owned property,
and Plaintiffs’ claimed damages to the public treasury do not qualify as such.
Defendants rely on General Public Utilities v. Glass Kitchens of Lancaster, Inc., 542
A.2d 567 (Pa. Super. 1988) and Duquesne Light Co. v. Pennsylvania American
Water, Co., 850 A.2d 701 (Pa. Super. 2004) to support their position.
Traditionally, Pennsylvania’s economic loss doctrine
[was] “developed in the product liability context to
prevent tort recovery where the only injury was to the
product itself.” Sarsfield v. CitiMortgage, Inc., 707 F.
Supp. 2d 546, 556 (M.D. Pa. 2010). Eventually, the
doctrine came to stand for the proposition that, “no cause
of action can be maintained in tort for negligence or strict
liability where the only injury was ‘economic loss’ - that
is, loss that is neither physical injury nor damage to
tangible property.” 2-J Corp. v. Tice, 126 F.3d 539, 541
(3d Cir. 1997) (citing Aikens v. Baltimore & Ohio R.R.
Co., . . . 501 A.2d 277, 279 ([Pa. Super.] 1985)).
Amig, 432 F. Supp. 3d at 488 (footnote omitted); see also Excavation Techs., Inc. v.
Columbia Gas Co. of Pa., 985 A.2d 840, 841 n.3 (Pa. 2009) (“The economic loss
doctrine provides, ‘no cause of action exists for negligence that results solely in
economic damages unaccompanied by physical injury or property damage.’ Adams
v. Copper Beach Townhome C[mtys.], L.P., 816 A.2d 301, 305 (Pa. Super. 2003).”).
Recently, however, in Dittman v. UPMC, . . . 196 A.3d
1036 ([Pa.] 2018), the Pennsylvania Supreme Court
limited the doctrine’s application and moved away from
an analysis of whether plaintiff alleges solely economic
harms. Instead, the Pennsylvania Supreme Court shifted
to an examination of what kinds of remedies are available
to the plaintiff. Under the new Dittman test, the economic
81
loss doctrine bars a plaintiff’s solely economic claim via a
tort action if the breached duty arises under a contract. Id.
at 1054. (“[I]f . . . the duty arises independently of any
contractual duties between the parties, then a breach of
that duty may support a tort action.”). “Thus, [the
Pennsylvania Supreme Court in] Dittman rejected the
‘general pronouncement’ that ‘all negligence claims
for economic losses are barred under Pennsylvania law
. . . ’ [and] held that ‘under Pennsylvania’s economic loss
doctrine, recovery for purely pecuniary damages is
permissible under a negligence theory provided that
the plaintiff can establish the defendant’s breach of a
legal duty arising under common law that is
independent of any duty assumed pursuant to contract.’”
Dalgic v. Misericordia Univ., No. 3:16-CV-0443, 2019
WL 2867236, at *26 (M.D. Pa. July 3, 2019).
Amig, 432 F. Supp. 3d at 488 (emphasis added). The Amig Court further declared
that the economic loss doctrine may allow recovery for purely pecuniary damages
in both negligence and strict liability cases. See id.
Moreover, in Glass Kitchens,34 the Pennsylvania Superior Court quoted
the economic loss rule, but nevertheless upheld the trial court’s denial of the
defendants’ summary judgment motion stating that, although physical injury or
property damage is necessary to recover economic losses, viewing the case in the
light most favorable to the plaintiffs, as the courts must, the Glass Kitchens Court
could not say with certainty that the plaintiffs could not prove such damages.
Further, in Duquesne Light Co., the Pennsylvania Superior Court reiterated the
economic loss rule and stated that intermediate appellate courts may not recognize a
new cause of tort action if, to do so, would reexamine public policy questions already
34
In Glass Kitchens, the plaintiffs were Lancaster-based parties associated with the tourist
industry who sued for economic losses purportedly caused by the nuclear incident at Three Mile
Island. The Glass Kitchens Court concluded, without expressing an opinion on the merits of those
claims, that since there existed material issues of fact regarding whether Lancaster tourist
businesses, approximately 25 miles from the incident, could have suffered actual physical injury
or property damage, the trial court properly denied the summary judgment motion in favor of the
plaintiffs, thereby allowing them to proceed to prove such damages.
82
settled by the Pennsylvania Supreme Court. By implication, where the Pennsylvania
Supreme Court has not expressly settled an issue of public policy, there is no basis
on which the intermediate appellate courts must foreclose the complainants’
opportunity to prove their case. Neither Glass Kitchens nor Duquesne Light Co.
involved state government parties, nor dictate that this Court dismiss Plaintiffs’
economic damage claims for alleged injured natural resources at this stage. In fact,
like Plaintiffs, this Court failed to locate any caselaw in which the economic loss
rule has been applied to preclude a state, as trustee/parent patriae, from seeking
damages for harm to its natural resources, or limited its recovery to only those natural
resources the state owns. Therefore, it does not appear with certainty that Plaintiffs’
damage claims are precluded by the economic loss doctrine.
In the absence of explicit prohibitions against Plaintiffs’ claimed
damages under the circumstances presented in this litigation, and notwithstanding
Defendants’ claims to the contrary, this Court is satisfied that Plaintiffs have
sufficiently pled damages (including a continuing duty to correct and remediate any
harm Defendants caused) to overcome Defendants’ demurrer. Ultimately, “[t]he
burden of proving damages is on the plaintiff[.]” James Corp. v. N. Allegheny Sch.
Dist., 938 A.2d 474, 495 (Pa. Cmwlth. 2007). However, whatever the proper
measure of Plaintiffs’ damages in this case may be, it is premature at this stage to
rule upon them in the context of these POs without discovery or development of a
record.
“[A]ccept[ing] as true all well-pleaded material allegations in the
[Complaint and the documents attached thereto], as well as all inferences reasonably
deduced therefrom[,]” and resolving any doubt in favor of overruling the preliminary
objection, as we must, because it does not “appear with certainty that . . . [Plaintiffs
have failed to state legally sufficient claims for damages from Defendants],” Torres,
83
997 A.2d at 1245 (emphasis added), Defendants’ PO 9 (Demurrer - Damage Claims)
is overruled.
Conclusion
For all of the above reasons, Defendants’ POs 3 and 7 are sustained,
Defendants’ POs 1, 2, 4, 5, 6, and 9 are overruled, and Defendants’ PO 8 is sustained
in part and overruled in part.
_________________________________
ANNE E. COVEY, Judge
84
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, acting :
by the Commonwealth of Pennsylvania :
Department of Environmental :
Protection and the Commonwealth of :
Pennsylvania Department of :
Conservation and Natural Resources, :
and the Pennsylvania Fish and Boat :
Commission, and the Pennsylvania :
Game Commission, :
Plaintiffs :
:
v. :
:
Monsanto Co., Solutia Inc., and :
Pharmacia LLC, : No. 668 M.D. 2020
Defendants :
ORDER
AND NOW, this 30th day of December, 2021, Monsanto Co.’s, Solutia
Inc.’s and Pharmacia LLC’s (collectively, Defendants) Preliminary Objections to
the First Amended Complaint (Complaint) (Preliminary Objections) filed by the
Commonwealth of Pennsylvania, acting by the Commonwealth’s Department of
Environmental Protection, Department of Conservation and Natural Resources, Fish
and Boat Commission, and Game Commission (collectively, Plaintiffs), are
SUSTAINED in part, and OVERRULED in part, as follows:
Preliminary Objection 1 (Standing): Overruled.
Preliminary Objection 2 (Public Nuisance Claim): Overruled.
Preliminary Objection 3 (Trespass Claim): Sustained.
Preliminary Objection 4 (Design Defect Claim): Overruled.
Preliminary Objection 5 (Failure to Warn/Instruct Claim): Overruled.
Preliminary Objection 6 (Negligence Claim): Overruled.
Preliminary Objection 7 (Unjust Enrichment Claim): Sustained.
Preliminary Objection 8 (Continuing Tort/Harm Claim): Sustained
in part, overruled in part.
Preliminary Objection 9 (Damage Claims): Overruled.
Based on the Court’s disposition of the Preliminary Objections,
Plaintiffs’ Fifth Cause of Action (Trespass) claim and Continuing Tort/Harm claims
(relating to Defendants’ continuing harmful conduct), and Sixth Cause of Action
(Unjust Enrichment) are hereby DISMISSED. Defendants are directed to file an
answer to Plaintiffs’ First Cause of Action (Public Nuisance), Second Cause of
Action (Design Defect), Third Cause of Action (Failure to Warn/Instruct, including
allegations of Defendants’ continuing duty to warn), Fourth Cause of Action
(Negligence), and Damage Claims (including allegations of Defendants’ continuing
duties to correct and remediate), within 30 days of the date of this Order.
_________________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, acting :
by the Commonwealth of Pennsylvania :
Department of Environmental :
Protection and the Commonwealth of :
Pennsylvania Department of :
Conservation and Natural Resources, :
and the Pennsylvania Fish and Boat :
Commission, and the Pennsylvania :
Game Commission, :
Plaintiffs :
:
v. : No. 668 M.D. 2020
: Argued: October 20, 2021
Monsanto Co., Solutia Inc., and :
Pharmacia LLC, :
Defendants :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE J. ANDREW CROMPTON, Judge
CONCURRING OPINION
BY PRESIDENT JUDGE BROBSON FILED: December 30, 2021
At this early stage of litigation, I am willing to and do join in the majority
disposition of the pending preliminary objections to the First Amended Complaint
(Complaint). I write separately to note that, for at least some of the reasons advanced
by the proponents of the preliminary objections, I remain skeptical that the
Commonwealth plaintiffs, separately or collectively, can succeed on all their claims.
I am particularly dubious of the Commonwealth plaintiffs’ products liability claims
(Second and Third Causes of Action), as well as the claim relating to continuing
tort/harm arising from the products liability claims.
Moreover, as this novel, complex, common law tort matter develops, it would
be beneficial, in my view, for the parties to better elucidate the relation, if any, of
the Commonwealth plaintiffs’ common law tort theories of liability to the myriad of
existing environmental statutes and regulations, state and federal, that would seem
to capture some, if not all, of the alleged wrongdoing in the Complaint. I am
particularly concerned about whether affording the Commonwealth and its agencies
broad access to common law remedies to address and remedy environmental
contamination and punish polluters would make dead letters out of our
environmental laws.
Notwithstanding my concerns, as indicated above, I join the majority,
accepting its disposition not as a final ruling on all the issues raised in the preliminary
objections, but as simply allowing the matter to mature beyond the preliminary
objection phase given the applicable standard of review, which is deferential to the
Commonwealth plaintiffs.
P. KEVIN BROBSON, President Judge
Judge Crompton joins in this concurring opinion.
PKB - 2
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, acting :
by the Commonwealth of Pennsylvania :
Department of Environmental :
Protection and the Commonwealth of :
Pennsylvania Department of :
Conservation and Natural Resources, :
and the Pennsylvania Fish and Boat :
Commission, and the Pennsylvania :
Game Commission, :
Plaintiffs :
: No. 668 M.D. 2020
v. :
: Argued: October 20, 2021
Monsanto Co., Solutia Inc., and :
Pharmacia LLC, :
Defendants :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE J. ANDREW CROMPTON, Judge
CONCURRING/DISSENTING OPINION
BY JUDGE McCULLOUGH FILED: December 30, 2021
Although I concur with the Majority in most respects, I would
overrule all of the preliminary objections of Monsanto Co., Solutia Inc., and
Pharmacia LLC. I am of the view that the Commonwealth parties have pleaded
sufficient facts to support each of their claims, at least for purposes of surviving
preliminary objections. “In order to sustain preliminary objections, it must appear
with certainty that the law will not permit recovery and any doubt should be
resolved by a refusal to sustain them.” Young v. Wetzel, 260 A.3d 281, 287 (Pa.
Cmwlth. 2021). Because I believe the record lacks such certainty in the failure of
any claim before us, I would resolve my doubts in favor of allowing each to
proceed beyond this initial stage of litigation.
Accordingly, I respectfully dissent with regard to the Majority’s
disposition of the third, seventh, and eighth preliminary objections. In all other
respects, I join the Majority Opinion.
________________________________
PATRICIA A. McCULLOUGH, Judge
PAM - 2