O'Neill, J. v. van Rossum, M.

J-A16005-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
J. BRIAN O’NEILL, O’NEILL PROPERTIES IN THE SUPERIOR COURT
GROUP, L.P. AND CONSTITUTION DRIVE OF
PARTNERS, LP PENNSYLVANIA
Appellants
v.
MAYA VAN ROSSUM, CARLA ZAMBELLI
AND DELAWARE RIVERKEEPER
NETWORK AND JOHN DOES 1 THROUGH
10
Appellee No. 3066 EDA 2017
Appeal from the Order Entered August 22, 2017
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2017-03836-MJ
BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 06, 2018
Appellants, J. Brian O’Neill, O’Neill Properties Group, L.P. (“OPG”), and
Constitution Drive Partners, LP (“CDP”), appeal from the trial court’s order
sustaining Appellees’, Maya van Rossum and Delaware Riverkeeper Network
(collectively referred to herein as “DRN”), preliminary objections and
dismissing Appellants’ complaint.1 We affirm.
We briefly summarize the factual allegations set forth in Appellants’
complaint. Appellants represent that OPG is a leading real estate development
company, and CDP — an affiliate of OPG — remediates and redevelops
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1According to Appellants, they have discontinued their action against Carla
Zambelli. See Appellants’ Brief at 5 n.1.
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abandoned or underutilized industrial sites. Complaint, 6/27/2017, at ¶¶ 11,
12. In 2005, CDP purchased a property in East Whiteland Township known as
the Bishop Tube site, a former industrial site upon which industrial buildings
and other vacant, dilapidated improvements remain standing. Id. at ¶¶ 13,
14. From the 1950s through 1999, a variety of owners and operators
manufactured stainless steel tubes on the Bishop Tube site, which resulted in
the release of significant amounts of chlorinated solvents into the soil and
groundwater at the site, and such contamination remains there today. Id. at
¶¶ 14, 15. Further, the contamination in the groundwater has migrated off
the Bishop Tube site to the surrounding community. Id.
To date, the Pennsylvania Department of Environmental Protection
(“PADEP”) has identified two potentially responsible parties — namely,
Johnson Matthey, Inc. and Whittaker Corporation (collectively referred to
herein as “PRPs”) — that it believes have liability to investigate and remediate
the contamination at and beyond the Bishop Tube site. Id. at ¶ 17. Although
the PRPs have conducted investigations at and beyond the Bishop Tube site,
they have never remediated any of the contamination, and deny that they
have any responsibility to do so. Id. When CDP acquired the site in 2005, it
entered into a Prospective Purchaser Agreement (“PPA”) with the PADEP, in
which the PADEP provided CDP with a covenant not to sue it in connection
with the contamination, as well as with contribution protection against third
party claims regarding the contamination. Id. at ¶ 18. In exchange, CDP
committed to performing certain remedial activities to Bishop Tube’s soils and
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agreed to cooperate with the PADEP. Id. CDP subsequently satisfied its
obligations under the PPA by installing an air sparging/soil vapor extraction
(“AS/SVE”) remediation system, operating it for a period of time, and paying
$10,000 to the PADEP. Id. In December of 2010, the PADEP confirmed by
letter that CDP satisfied all of its remedial obligations under the PPA. Id. In
January of 2014, however, the PADEP notified CDP by letter that the covenant
not to sue under the PPA was void due to damage caused by a salvage
contractor to the no-longer-used AS/SVE system in 2011. Id. at ¶ 19. CDP
disputes the PADEP’s position, believing that the covenant not to sue remains
in full force and effect, but the PADEP’s issuance of the letter was not
appealable. See id.
In 2014, East Whiteland Township changed the zoning of the Bishop
Tube site from industrial to residential use, and specifically rezoned the
property as a Residential Revitalization District (“RRD”). Id. at ¶ 20. Before
this rezoning, CDP tried to market and redevelop the Bishop Tube site for
commercial purposes, but that attempt proved unsuccessful due to non-
environmental constraints. Id. at ¶ 21. In making this zoning decision, East
Whiteland Township also considered the need for additional residential
housing within the community, and recognized that CDP would construct such
housing with all safe and reasonable methods to prevent exposure to
contamination at the site. Id. As a result, CDP sought municipal approval to
construct a 228-residence townhome community on a portion of the Bishop
Tube site. Id. at ¶ 22.
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Appellants further claim in their complaint that DRN has resisted
Appellants’ proposed soil clean up, remediation, and repurposing of the Bishop
Tube site, purportedly in an attempt to coerce East Whiteland Township and
the Commonwealth to impede Appellants’ efforts and spend millions of dollars
in public revenue to remediate the site and create a park. Id. at ¶ 23.2 To
accomplish this goal, DRN has allegedly engaged in a campaign of
misinformation, misleading residents and government officials to believe that
any improvements proposed by Appellants are dangerous due to the
contamination, and that improvements at the site pursuant to the RRD zoning
puts surrounding residents at a greater risk for exposure. Id. at ¶ 24.
Specifically, DRN published and distributed a flier to the community that stated
that redevelopment of the site will “expose us to more of the toxins and put
200+ homes on the contaminated land!!!,” and “if this development happens
your community could be on the receiving end of more contamination as the
toxins make their way through our local waterways and water table.” Id. at
¶ 26. In addition, the flier represented that CDP planned to use “a $1 million
grant from the [PA]DEP ([o]ur tax money) to perform a ‘PARTIAL CLEAN-
UP’ of the Bishop Tube site,” and that the developer is refusing “to take
responsibility for full removal of the toxins at the site[.]” Id. at ¶ 28
(emphasis in original; some internal quotation marks omitted). DRN
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2 According to the complaint, Delaware Riverkeeper Network is a non-profit
corporation, and Ms. van Rossum is a citizen of Pennsylvania. Complaint at
¶¶ 4, 6. Based on our review of the record, we are not sure of the nature of
their relationship to one another.
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ostensibly published this false and misleading information to impede
Appellants’ business interests of improving the Bishop Tube site through their
clean-up efforts and the development of the townhouse community. Id. at ¶
27. Furthermore, Appellants allege Ms. van Rossum declared to a room of
200 people that Mr. O’Neill brushed up against her inappropriately, when no
such event occurred, in order to discredit Appellants’ efforts to improve the
property. Id. at ¶¶ 35, 36.
On June 27, 2017, Appellants filed their complaint, raising claims
against DRN for defamation/commercial disparagement, tortious interference
with a contractual or business relation, and civil conspiracy. On July 26, 2017,
DRN filed preliminary objections to the complaint, advancing a variety of
arguments. Thereafter, on August 14, 2017, Appellants filed preliminary
objections to DRN’s preliminary objections, wherein they claimed that DRN
improperly averred facts and attached documents not contained in the
complaint or record to their preliminary objections. See Appellants’
Preliminary Objections to DRN’s Preliminary Objections, 8/14/2017, at 1-2.
On August 15, 2017, DRN filed a memorandum of law and a praecipe for
determination relating to its preliminary objections.
On August 22, 2017, the trial court entered an order overruling
Appellants’ preliminary objections to DRN’s preliminary objections. On that
same day, it entered a separate order sustaining DRN’s preliminary objections,
and dismissing Appellants’ complaint. In doing so, it explained that the
conduct by DNR described in Appellants’ complaint is protected by the Noerr-
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Pennington doctrine and that DRN is immune from Appellants’ tort claims.
See Trial Court Order Sustaining DRN’s Preliminary Objections, 8/22/2017, at
1 n.1.3 On September 13, 2017, Appellants filed a motion to vacate and
reconsider these orders, which the trial court denied on September 21, 2017.
On September 21, 2017, Appellants filed a timely notice of appeal. That
same day, the trial court ordered Appellants to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and they timely
complied. The trial court subsequently issued a Rule 1925(a) opinion, in which
it determined that — in addition to immunity pursuant to the Noerr-
Pennington doctrine — DRN also has immunity from Appellants’ defamation
claim under the Environmental Immunity Act, 27 Pa.C.S. §§ 8301-8305. See
Trial Court Opinion (“TCO”), 10/23/2017, at 17.
Presently, Appellants raise the following issues for our review:
1. Did the trial court err by failing to follow the proper
procedure for ruling on preliminary objections when it: (a)
failed to permit briefing and argument on Appellants’
[p]reliminary [o]bjections and to allow Appellants to make
a substantive response to [DRN’s] improper [p]reliminary
[o]bjections; (b) accepted as true all of [DRN’s] allegations
in their improper “speaking demurrer” and failed to construe
the [c]omplaint in the light most favorable to Appellants;
and (c) accepted as dispositive the affirmative defenses
raised by [DRN’s p]reliminary [o]bjections?
2. Where [DRN’s p]reliminary [o]bjections improperly injected
a First Amendment defense based on the Noerr-
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3 As discussed further infra, the Noerr-Pennington doctrine provides that
“an individual is immune from liability for exercising his First Amendment right
to petition the government.” Wawa, Inc. v. Alexander J. Litwornia &
Associates, 817 A.2d 543, 546 (Pa. Super. 2003) (citations omitted).
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Pennington [d]octrine, which had nothing to do with
Appellants’ defamation claim, was it error for the trial court
to overrule Appellants’ [p]reliminary [o]bjections to [DRN’s
p]reliminary [o]bjections?
3. Where Appellants’ [c]omplaint properly pleaded a claim for
common law defamation based on public statements by
[DRN], was it error for the trial court to dismiss the
[c]omplaint at the preliminary objection stage?
Appellants’ Brief at 4.
At the outset, we acknowledge our standard of review:
[O]ur standard of review of an order of the trial court overruling
or granting preliminary objections is to determine whether the
trial court committed an error of law. When considering the
appropriateness of a ruling on preliminary objections, the
appellate court must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test the legal
sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases in
which it is clear and free from doubt that the pleader will be unable
to prove facts legally sufficient to establish the right to relief. If
any doubt exists as to whether a demurrer should be sustained, it
should be resolved in favor of overruling the preliminary
objections.
Greenberg v. McGraw, 161 A.3d 976, 980 (Pa. Super. 2017) (citation
omitted; brackets in original).
In their first issue, Appellants claim the trial court failed to follow proper
procedure in ruling on the parties’ preliminary objections. To begin, they
argue that the trial court overruled their preliminary objections without giving
them an opportunity to brief or argue those objections. See Appellants’ Brief
at 16. Moreover, they insist that the trial court erred by then immediately
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sustaining DRN’s preliminary objections, without permitting Appellants to
respond substantively to them. Id. They also contend that DRN filed an
improper “speaking demurrer” by inappropriately including many “new factual
allegations” in support of its preliminary objections, which the trial court then
considered. Id. at 20.4 Finally, they assert that the trial court disregarded
the procedural requirement that affirmative defenses — such as immunity
from suit — must be raised in new matter to an answer, and not as preliminary
objections. Id. at 21-22.
Appellants have not convinced us that such procedural deviations
require us to reverse the trial court’s decision and remand for further
proceedings. Initially, Appellants complain that they did not have an
opportunity to brief or argue their preliminary objections, nor plead over to
DRN’s preliminary objections once their own objections were overruled.5 See
id. at 17-18. We view any such errors as harmless. The trial court dismissed
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4 Citing Black’s Law Dictionary, Appellants explain a “speaking demurrer” is a
“demurrer that cannot be sustained because it introduces new facts not
contained in the complaint.” Appellants’ Brief at 20 n.4 (quoting Black’s Law
Dictionary (10th ed. 2014)).
5 “A party has a right to file a preliminary objection raising any appropriate
defenses or objections which that party might have to an adverse party’s
preliminary objection.” Ambrose v. Cross Creek Condominiums, 602 A.2d
864, 866 (Pa. Super. 1992) (citations omitted); see also Chester Upland
School Dist. V. Yesavage, 653 A.2d 1319, 1324 n.8 (Pa. Cmwlth. 1994)
(“The proper method for challenging the propriety of a preliminary objection
is by a preliminary objection to a preliminary objection.”) (citation omitted).
Further, “[i]f the preliminary objections are overruled, the objecting party
shall have the right to plead over within twenty days after notice of the order
or within such other time as the court shall fix.” Pa.R.C.P. 1028(d).
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Appellants’ complaint based on its determination that “the conduct described
in the [c]omplaint is protected by the Noerr-Pennington [d]octrine and
[DRN is] immune from [Appellants’] tort claims.” Trial Court Order,
8/22/2017, at 1 n.1 (emphasis added); see also id. (“Based upon the
allegations of the [c]omplaint, … the Noerr-Pennington [d]octrine
applies here to bar [Appellants’] claims.”) (emphasis added); TCO at 17-20
(determining that the Environmental Immunity Act applied based on the
allegations in Appellants’ complaint). Thus, Appellants’ preliminary objections
— in which they moved to strike improperly averred facts and extraneous
documents included in DRN’s preliminary objections, and objected to
Appellees’ preliminary objections for DRN’s failure to sign and attach a
verification in conformance with Pennsylvania Rule of Civil Procedure 10246 —
were not relevant to the trial court’s decision. Relatedly, Appellants’ claim
that they were not permitted to plead over to DRN’s preliminary objections is
also inconsequential as the trial court decided that the Noerr-Pennington
doctrine and Environmental Immunity Act applied based on the allegations
made by Appellants in their complaint.7 Thus, Appellants’ response to any
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6 Rule 1024 states, inter alia, that “[e]very pleading containing an averment
of fact not appearing of record in the action or containing a denial of fact shall
state that the averment or denial is true upon the signer’s personal knowledge
or information and belief and shall be verified.” Pa.R.C.P. 1024(a).
7 We also note that DRN’s preliminary objections based on the Noerr-
Pennington doctrine and Environmental Immunity Act were based on the
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facts not of record averred in DRN’s preliminary objections would have had no
effect on the trial court’s disposition, as the trial court did not even consider
such facts in its analysis.8
Nevertheless, Appellants next claim that the trial court improperly relied
on factual averments made in DRN’s “speaking demurrer.” Appellants’ Brief
at 19. Despite Appellants’ contentions, we do not discern that the trial court
relied on any of the “new facts” asserted by DRN to dispose of DRN’s
preliminary objections. While Appellants point to “new facts” introduced by
DRN in its preliminary objections, see id. at 20-21, they do not cite to where
the trial court actually relied on these factual allegations in ruling on DRN’s
preliminary objections, id.
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legal insufficiency of Appellants’ pleading. See DRN’s Preliminary Objections,
7/26/2017, at 5-10.
8 Appellants also argue that “the trial court’s actions in eliminating the
opportunity for Appellants to respond in a meaningful manner to the merits of
[DRN’s p]reliminary [o]bjection[s] was clearly a violation of Appellants’ [d]ue
[p]rocess rights under the United States and Pennsylvania Constitutions.”
Appellants’ Brief at 19 (emphasis in original). However, even if the trial court
erred by not permitting Appellants to file a response, we see little value in
remanding this matter for them to do so now. The trial court has already
denied Appellants’ motion to vacate and reconsider, in which they argued in
their brief in support thereof that the trial court misapplied the Noerr-
Pennington doctrine. See Appellants’ Brief in Support of Motion to Vacate
and Reconsider, 9/15/2017, at 4-6. Further, we apply the same standard of
review as the trial court in reviewing preliminary objections in the nature of a
demurrer, and Appellants have had an opportunity to brief the relevant issues
before us. See Pittsburgh Nat. Bank v. Perr, 637 A.2d 334, 336 (Pa. Super.
1994) (“Our standard of review in an appeal from an order sustaining
preliminary objections in the nature of a demurrer is the same as that which
the trial court employs….”). Accordingly, we believe remanding this matter
on this basis would be futile and a waste of judicial resources.
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Last, Appellants maintain that the trial court improperly ruled on the
merits of affirmative defenses raised in DRN’s preliminary objections. Id. at
21. They insist that “the trial court ignored the procedural requirement that
affirmative defenses are to be raised in new matter to an answer, and not as
preliminary objections.” Id. (emphasis in original). They say the sole
exception to that rule is where an affirmative defense is clear on the face of
the pleadings and, here, the immunity defense was not obvious on the face of
the complaint as the alleged defamatory communications occurred only
outside of any bona fide governmental proceedings. Id.
We disagree. This Court has regularly allowed litigants to raise
immunity defenses in preliminary objections where the opposing party lodged
no objections to such procedure. “Immunity from suit is an affirmative
defense which must be pleaded in [n]ew [m]atter, not in preliminary
objections. However, where the defense is raised by preliminary objections
and this procedure is not objected to, the question of immunity from suit may
be decided.” Bloom v. Dubois Regional Medical Center, 597 A.2d 671,
675 n.4 (Pa. Super. 1991) (citations omitted).9 Our review of the record
indicates that Appellants did not object to DRN’s raising immunity defenses in
its preliminary objections, nor do they suggest that they did. Thus, we reject
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9 Accord Pollina v. Dishong, 98 A.3d 613, 617 n.3 (Pa. Super. 2014);
Richmond v. McHale, 35 A.3d 779, 782 (Pa. Super. 2012); Soto v.
Nabisco, Inc., 32 A.3d 787, 788 n.2 (Pa. Super. 2011); Heinrich v.
Conemaugh Valley Memorial Hosp., 648 A.2d 53, 57 (Pa. Super. 1994);
Mosley v. Observer Pub. Co., 619 A.2d 343, 344 n.1 (Pa. Super. 1993);
Preiser v. Rosenzweig, 614 A.2d 303, 305 (Pa. Super. 1992).
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this contention, and conclude that none of Appellants’ procedural arguments
warrant reversal.
In their second issue, Appellants claim that “[t]he Noerr-Pennington
doctrine and the Environmental Immunity Act are inapposite based on the
facts of this case.” Appellants’ Brief at 23 (unnecessary capitalization and
emphasis omitted).10 We begin by considering whether the Noerr-
Pennington doctrine applies.11
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10 We observe that Appellants’ argument section for their second issue does
not neatly align with the second issue set forth in their statement of the
questions involved. In their statement of the questions involved, Appellants
ask: “Where [DRN’s p]reliminary [o]bjections improperly injected a First
Amendment defense based on the Noerr-Pennington [d]octrine, which had
nothing to do with Appellants’ defamation claim, was it error for the trial
court to overrule Appellants’ [p]reliminary [o]bjections to [DRN’s
p]reliminary [o]bjections?” Appellants’ Brief at 4 (emphasis added).
However, in the argument section for their second issue, Appellants claim that
“the Noerr-Pennington immunity doctrine and Environmental Immunity Act
are inapposite based on the facts of this case,” and that “the trial court erred
by sustaining [DRN’s p]reliminary objections based on immunity defenses,
where no such immunity was appropriate.” Id. at 23, 25 (unnecessary
emphasis and capitalization omitted). We see these as different, albeit
somewhat interrelated, issues. For the reasons discussed already, the trial
court’s overruling Appellants’ preliminary objections did not affect its
determination that the Noerr-Pennington doctrine applied, as it found such
immunity was warranted based on the face of the complaint, not on new
factual allegations made by DRN in its preliminary objections. Thus, in our
opinion, whether the Noerr-Pennington doctrine applies based on the
allegations in the complaint is a separate issue from the overruling of
Appellants’ preliminary objections.
11Appellants’ Rule 1925(b) statement is rambling and confusing. Accord TCO
at 6, 6 n.6, 10 (noting that Appellants’ concise statement is “cumulative and
repetitive” and acknowledging that Appellants raised 16 alleged errors
therein). While we could arguably determine that Appellants have failed to
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This Court has previously described the Noerr-Pennington doctrine as
follows:
[T]he Noerr–Pennington doctrine, which originated with the
United States Supreme Court’s holding in Eastern Railroad
Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S.
127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961)(“Noerr”), and United
Mine Workers v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14
L. Ed. 2d 626 (1965)(“Pennington”), that an individual is immune
from liability for exercising his First Amendment right to petition
the government. Further, the Court held that there was immunity
regardless of the defendants’ motivation in waging their
campaigns, as it recognized that the right of individuals to petition
the government “cannot properly be made to depend on their
intent in doing so.” Noerr, 365 U.S. at 139, 81 S. Ct. 523. The
Court made these rulings in an antitrust context.
The principles of the Noerr–Pennington doctrine have been
extended to provide defendants immunity from liability for civil
conspiracy pursuant to the First Amendment. NAACP v.
Clairborne Hardware Co., 458 U.S. 886, 102 S. Ct. 3409, 73
L. Ed. 2d 1215 (1982) (First Amendment protected against a civil
conspiracy claim by white merchants whose businesses were
being boycotted); Brownsville Golden Age Nursing Home,
Inc. v. Wells, 839 F.2d 155 (3d Cir. 1988) (defendants were
immune from conspiracy liability for damages resulting from
inducing official action to decertify a nursing home).
One caveat to the Noerr–Pennington doctrine is the “sham”
exception, which “emphasized that such immunity did not extend
to ‘illegal and reprehensible practice[s] which may corrupt the …
[administrative and] judicial proces[s],’ [California Motor
Transport Co. v. Trucking Unlimited, 404 U.S. 508,] 513, 92
S. Ct. 609, 30 L. Ed. 2d 642 [(1972)], hearkening back to an earlier
statement that antitrust immunity would not extend in lobbying
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preserve this issue by not raising it clearly and concisely in their Rule 1925(b)
statement, we decline to do so. See Pa.R.A.P. 1925(b)(4) (requiring, inter
alia, that the concise statement “set forth only those rulings or errors that the
appellant intends to challenge[;]” “concisely identify each ruling or error that
the appellant intends to challenge with sufficient detail to identify all pertinent
issues for the judge[;]” and “should not be redundant or provide lengthy
explanations as to any error”).
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‘ostensibly directed toward influencing governmental action [that]
is a mere sham to cover what is actually nothing more than an
attempt to interfere directly with the business relationships of a
competitor.’ Noerr, supra, at 144, 81 S. Ct. 523. This line of
cases thus establishes that while genuine petitioning is immune
from antitrust liability, sham petitioning is not.” BE & K Const.
Co. v. N.L.R.B., 536 U.S. 516, 122 S. Ct. 2390, 2396, 153 L. Ed. 2d
499 (2002).
In Barnes Foundation v. Township of Lower Merion, 242 F.3d
151 (3d Cir. 2001), which reversed a district court’s denial of
attorney’s fees to defendants who were sued under 42 U.S.C. §
1985(3) for conspiring (on racial discrimination grounds) to
deprive the Barnes Foundation (by means of zoning restrictions)
equal protection of the law, the Third Circuit Court of Appeals
wrote:
Before we close our discussion of the Noerr–Pennington
doctrine we hasten to add that persons contemplating
bringing suits to stifle First Amendment activity should draw
no comfort from this opinion because the uncertainty of the
availability of a First Amendment defense when a plaintiff
brings a civil rights case now has been dispelled. This point
is of particular importance in land-use cases in which a
developer seeks to eliminate community opposition to its
plans as this opinion should make it clear that it will do so
at its own peril.
242 F.3d at 162 (emphasis added); see also Gorman Towers,
Inc. v. Bogoslavsky, 626 F.2d 607, 614-[]15 (8th Cir. 1980)
(holding private citizen immune from section 1983 liability in
zoning dispute).
Wawa, 817 A.2d at 546-47.
Appellants appear to argue that the Noerr-Pennington doctrine does
not apply in the case sub judice for two main reasons. First, they maintain
that the immunity does not apply because their complaint “did not cite a
petition submitted by [DRN] to governmental bodies, nor did the [c]omplaint
take issue with any comments made in meetings with any governmental
bodies.” Appellants’ Brief at 23-24 (emphasis in original; footnote omitted).
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Rather, they say that their complaint “cited a [flier] distributed house-to-
house in a local residential community, and public statements in press
conferences and social media, that were alleged to have defamed Appellants.”
Id. at 24. In other words, they assert that DRN made the at-issue statements
outside of governmental proceedings and not to a governmental entity. Id.
at 10. Second, Appellants insist that DRN distributed false and misleading
information. More precisely, they contend that DRN “did not simply advocate
a different use for Bishop Tube. Instead, [it] blamed Appellants for polluting
Bishop Tube — which is totally false; for attempting to avoid a legal duty to
remediate the pollution — also false; and [it] stated that Appellants’
development of the site would expose local residents to additional pollution —
which is similarly a falsehood.” Id.at 24. (emphasis in original; footnote
omitted).
The only case Appellants discuss on appeal to support their position that
the Noerr-Pennington doctrine does not apply is Wawa. See Appellants’
Reply Brief at 9-10. In Wawa, the convenience store filed a complaint against
the appellees, raising claims of commercial disparagement, intentional
interference with actual and prospective contractual relationships, and civil
conspiracy. Wawa, 817 A.2d at 545. Wawa claimed that the appellees had
“engaged in a consolidated effort to disparage it in three locations targeted
for new convenience food markets dispensing gasoline in the Lehigh Valley
area — these were in proximity to [the appellees’ convenience] stores.” Id.
Specifically, Wawa “contended [the a]ppellees contacted at least one of the
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landowners to dissuade her from selling [land to Wawa] and disseminated a
videotape to local officials containing erroneous data that an excessive amount
of traffic would be generated by [Wawa’s] proposed convenience stores.” Id.
The appellees subsequently filed preliminary objections, arguing that their
alleged conduct was protected by, inter alia, the First Amendment. Id. The
trial court agreed and dismissed Wawa’s complaint. Id. On appeal, we
reversed and remanded the case for further proceedings, determining that the
appellees purportedly “proliferated false information aimed at interfering
directly with the business relationships of a competitor. This type of conduct
translates into a ‘sham’ of inaccurate information communicated to incite the
public.” Id. at 548 (citations omitted). Thus, this Court concluded that the
Noerr-Pennington doctrine did not protect the appellees given the
allegations in the complaint. Id. (noting that such conduct “triggers the
‘sham’ exception to the Noerr-Pennington doctrine”).
Appellants interpret Wawa as holding that “the Noerr-Pennington
doctrine does not apply to false public statements made outside of
governmental proceedings as part of a challenge to an application to a local
governmental agency.” Appellants’ Reply Brief at 9 (emphasis in original).
Thus, they claim that “[b]ecause the facts at issue here closely resemble those
presented in Wawa — alleged ‘protected’ activities petitioning government,
with collateral ‘sham’ activities disseminating false information publicly — this
Court must reverse the trial court’s dismissal of [Appellants’] complaint and
remand this case for further proceedings.” Id. at 10. We disagree.
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Initially, we do not read Wawa as holding that the Noerr-Pennington
doctrine does not apply to false public statements made outside of
governmental proceedings. Instead, as discussed above, the Wawa Court
ascertained that the Noerr-Pennington doctrine did not provide immunity as
Wawa’s “pleadings paint [the a]ppellees as effectuating governmental
action directed at impeding the business affairs of a competitor. Such
conduct … triggers the ‘sham’ exception to the Noerr–Pennington doctrine.”
Wawa, 817 A.2d at 548 (emphasis added). The Wawa Court’s decision did
not center on the fact that the appellees made some of the at-issue statements
outside of governmental proceedings, specifically to a local landowner and
community groups. Rather, we emphasized in reversing the trial court’s
decision that “we cannot say with certainty that no recovery is possible under
the law with the admission as true of the content of the complaint regarding
the dissemination of false information geared toward derailing [the a]ppellees’
competitor.” Id. Thus, Appellants’ reliance on Wawa does not convince us
that the Noerr-Pennington doctrine would not protect DNR’s statements to
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community members for the mere reason that the statements were made
outside of formal government proceedings.12, 13
Appellants also claim that the Noerr-Pennington doctrine does not
apply here because Appellants alleged that DNR’s statements were false and
meant to interfere with Appellants’ business interests, like in Wawa. See
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12We emphasize, again, that Appellants cite to only Wawa to support their
position that the Noerr-Pennington doctrine does not protect statements
made to the general public outside of any governmental proceedings. They
proffer no other authority, either binding or persuasive, to back this argument.
13 Further, the complaint in the case at bar indicates that DNR was
concurrently petitioning and attempting to influence the government while
making these statements to the community. In their complaint, Appellants
alleged that DNR has “resisted [Appellants’] proposed soil clean up,
remediation[,] and repurposing of the Bishop Tube [s]ite, in a thinly-veiled
attempt to coerce the [t]ownship and the Commonwealth to impede
[Appellants’] efforts and spend many millions of dollars of public revenue to
remediate the site and create a park.” Complaint at ¶ 23 (emphasis added);
see also id. at ¶ 24 (averring that DNR has “engaged in, and ha[s] conspired
to engage in[,] a campaign of misinformation that is designed to mislead, and
ha[s] misled, the residents of East Whiteland Township and other surrounding
townships, the officials of East Whiteland Township, and the officials of
the PADEP into believing that any improvements that are proposed by
[Appellants] will be dangerous because of the contaminants currently present
at the site”) (emphasis added); id. at ¶ 31 (“Delaware Riverkeeper Network
has also published documents on its website containing deceitful information
in an attempt to scare the residents and public officials of East Whiteland
Township into opposing the development of the Bishop Tube [s]ite….”)
(emphasis added). The allegedly defamatory flier — attached to Appellants’
complaint — also called for “urgent action[,]” and asked recipients to attend
a community meeting regarding the project. See id. at Exhibit A.
Additionally, DNR astutely points out that “communicating with and mobilizing
the public is a key element of petitioning the government. … To hold a person
is precluded from seeking the support of his or her neighbors when petitioning
the government would … create an exception to the protections of the Noerr-
Pennington [d]octrine that would swallow the rule.” DNR’s Brief at 22.
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Appellants’ Brief at 24; Appellants’ Reply Brief at 10. However, the trial court
observed that Appellants’ “characterization of the statements as false is belied
by the other allegations of Appellants’ [c]omplaint[,]” and we agree. TCO at
18. For instance, although Appellants alleged that DNR’s purpose in publishing
false and misleading information was to impede the business interests of
Appellants, see Complaint at ¶ 27, they simultaneously conceded that DNR
seeks to “spend many millions of dollars of public revenue to remediate the
site and create a park.” Id. at ¶ 23; see also id. at Exhibit A (“Environmental
[e]xperts highly recommend that this site be fully cleaned up and left as OPEN
SPACE!”). In addition, Appellants recognized in their complaint that “industrial
operations resulted in the release of significant amounts of chlorinated
solvents … to soil and groundwater at the [s]ite[,]” and that “the chlorinated
solvent contamination in groundwater has migrated significant distances
beyond the boundaries of the [s]ite, generally in a [n]ortheasterly direction.”
Id. at ¶¶ 14, 15. They acknowledged that “CDP plans to clean up the soils
above the water table at the site[,]” but that “any groundwater remediation
required at or beyond the [s]ite is not, and has never been[,] the legal
responsibility of CDP….” Id. at ¶¶ 28, 29; see also id. at ¶ 28 (“[T]he parties
that caused the contamination of the groundwater continue to bear the
responsibility for cleaning the contaminated groundwater under the site and
downstream….”).
Accordingly, Appellants admit that they plan to conduct only a partial
cleanup of the site — namely to the soils above the water table — and, thus,
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the groundwater at the site, where the townhouses are planned to be built,
would remain contaminated. As a result, we do not consider DNR’s statements
that Appellants intended to conduct only a partial cleanup, and planned to
build over 200 homes on contaminated land, to be false. Similarly, because
the contaminated groundwater could continue to pollute surrounding areas, it
is not false that the community could be exposed to more toxins. Accord
TCO at 5 n.5 (“Anything less than full remediation of the site may potentially
increase contamination of the surrounding areas.”).
We therefore do not view the allegations in the complaint as establishing
that DNR was sham petitioning and “proliferat[ing] false information aimed at
interfering directly with the business relationships of a competitor.” Wawa,
817 A.2d at 548. As the trial court aptly discerned, “[t]hroughout the
[c]omplaint, Appellants note that [DNR] desire[s] the full remediation of the
site for purposes of constructing a public park on the land. Moreover, it is
clear from the pleadings that [DNR is] concerned about the spreading of
contaminated soil and groundwater throughout the community.” TCO at 16
(citation omitted). We agree, and do not view DNR’s conduct as a sham given
the allegations in the complaint detailing the environmental issues at play. As
such, we conclude that DNR has immunity pursuant to the Noerr-
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Pennington doctrine, and that the trial court did not err in dismissing
Appellants’ complaint.14
Order affirmed.
President Judge Emeritus Ford Elliott did not participate in the
consideration or decision of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/18
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14 Given our disposition, we need not address the application of the
Environmental Immunity Act, nor Appellants’ third issue as to whether their
complaint made out a claim for common law defamation. We also need not
address Appellants’ allegation that Ms. van Rossum falsely stated that Mr.
O’Neill inappropriately brushed up against her, as Appellants develop no
argument with respect to this claim. See Commonwealth v. Thoeun Tha,
64 A.3d 704, 713 (Pa. Super. 2013) (“Failure to present or develop an
argument in support of a claim causes it to be waived.”) (citation omitted).
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