ELR Citation: ELR 20937
No(s). 84-S-3820 (Pa. Ct. C.P. York Cty. May 20, 1985)

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

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

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

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

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

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

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