IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Atlantic Richfield Company, E.I. du :
Pont de Nemours and Company, NL :
Industries, Inc., PPG Industries, Inc., :
and The Sherwin-Williams Company, :
Appellants :
:
v. : No. 1260 C.D. 2021
:
The County of Lehigh, Pennsylvania : Argued: December 14, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: May 5, 2023
Atlantic Richfield Company, E.I. du Pont de Nemours and Company, NL
Industries, Inc., PPG Industries, Inc., and The Sherwin-Williams Company
(together, Manufacturers) appeal from the August 6, 2021 Order of the Court of
Common Pleas of Lehigh County (Trial Court) overruling their Preliminary
Objections to the County of Lehigh’s (County) Amended Complaint in this public
nuisance action. In the Amended Complaint, the County seeks a declaratory
judgment that lead paint is a public nuisance under the common law as well as the
Lead Certification Act (Certification Act), Act of July 6, 1995, P.L. 291, No. 44, 35
P.S. §§ 5901-5916. On appeal, the Manufacturers argue that the County’s proposed
interpretation of the Certification Act is contrary to its plain language and legislative
intent and that the County has failed to establish proximate causation under
Pennsylvania tort law. Upon review, we reverse the Order and remand to the Trial
Court for the entry of an order dismissing the Amended Complaint.
I. Background
The Manufacturers are businesses that “manufactured, sold, distributed,
and/or promoted” paints or pigments for household use between 1880 and 1977, or
are the successors-in-interest to such businesses. Original Record (O.R.), Item No.
4, Am. Compl. ¶¶ 15, 19, 24, 29, 33. During that period, lead was a prevalent
ingredient in many types of paints intended and sold for exterior and interior
residential use. Id. ¶ 35. The use of lead paint is associated with various health
hazards that have been widely known since classical antiquity. Id. However, the
Manufacturers continued to market lead paint in ways that omitted or obfuscated
these health hazards. Id. ¶ 94.
The danger of lead paint arises from its tendency to erode over time into chips,
flakes, and dust, which are then deposited on floors, windows, and other inside
surfaces. Id. ¶ 36. Because children normally engage in “hand-to-mouth” behavior
as part of their physical and mental development, they are particularly vulnerable to
such sources of contamination. Id. ¶ 37. Exacerbating the danger is the especially
hazardous effect of lead on children; exposure can lead to devastating and permanent
mental injuries. Id. ¶ 38. Beyond the individual health consequences, lead
poisoning creates a cumulative, deleterious effect on whole communities by
depriving them of well-adjusted, happy, and productive citizens. Id. ¶ 44. Because
of its dangers, the federal government banned the manufacture and sale of lead paint
in 1978. Id. ¶ 46. Leading experts agree, however, that deteriorating lead paint
continues to be the primary source of lead poisoning in young children today. Id. ¶
46.
2
With a population of approximately 350,000 people, the County is the tenth-
most populous in Pennsylvania. Id. ¶ 7. The County estimates that 88,979 of its
residential structures, or 63.8% of the total, were built before lead paint was banned
and, therefore, may be “contaminated by lead paint.” Id. ¶¶ 9, 10. However, the
risks of lead exposure are particularly serious in rental housing inhabited by low-
income families, where painted surfaces tend to be poorly maintained. See id. ¶¶ 51-
52. Using United States Census data, the County estimates that at least 4,512 of its
residential structures are “in critical and immediate need of abatement to address the
risks posed by lead paint hazards.” Id. ¶ 53.
The County initiated this action by filing a Complaint in the Trial Court on
October 12, 2018.1 See O.R., Item No. 2. The Complaint consisted of two counts.
The first was a common law public nuisance claim, in which the County asserted
that the continued presence of lead paint in County residences “pose[s] a past,
present, and ongoing risk of lead poisoning” to their inhabitants, particularly
children. Id. ¶ 117. The County maintained that the Manufacturers’ conduct “is a
direct, legal, and proximate cause of [a] public nuisance currently afflicting the
County and its citizens.” Id. ¶ 121. The second count sought a declaratory judgment
that Section 2(a) of the Certification Act2 “explicitly and/or implicitly identified”
1
On October 4, 2018, the County of Montgomery also filed an action in the Court of
Common Pleas of Montgomery County, in which it made substantially the same allegations, and
sought substantially the same relief, as the County in the instant matter. The County of
Montgomery action is the basis of a separate appeal before this Court. See Atl. Richfield Co. v.
Montgomery County, ___ A.3d ___ (Pa. Cmwlth., No. 1338 C.D. 2021, filed May 5, 2023).
2
Section 2(a) of the Certification Act provides:
(a) Findings.--The General Assembly finds as follows:
(Footnote continued on next page…)
3
lead-based paint as a public nuisance. Id. ¶¶ 126-29. As a proposed remedy, the
County called for the cost of abatement of lead paint “throughout the County,”
among other damages. See id. ¶ 130.
On November 3, 2020, the County filed an Amended Complaint, which is the
operative complaint at issue in this appeal. See O.R., Item No. 19, Am. Compl. It
included a single count, in which the County again alleged that lead paint
“constitute[s] a public nuisance under the common law of Pennsylvania.” Id. ¶ 123.
The County also reiterated its assertion that Section 2(a) declares lead paint a public
nuisance. Id. ¶ 124. It further argued that it had the power bring suit against the
Manufacturers pursuant to Section 2(a). Id. ¶ 133. As a remedy, the County
proposed a declaratory judgment that lead paint is a public nuisance, plus an award
of the cost of abating affected properties, and other damages, which the County
referred to as “supplemental relief.” Id. ¶ 134.
The Manufacturers filed their Preliminary Objections to the Amended
Complaint on December 21, 2020. See O.R., Item No. 35, POs. Their first objection,
in the nature of a demurrer, asserts that the County’s claim fails to satisfy the
(1) Lead poisoning is a significant health hazard to the citizens of this
Commonwealth. Lead poisoning is particularly a hazard to children who typically
are exposed to lead through environmental sources such as lead-based paint in
housing and lead-contaminated dust and soil. It is the policy of this Commonwealth
to protect the health and welfare of its citizens through reduction of lead in the
environment.
(2) Improper abatement of lead-based paint within this Commonwealth constitutes
a serious threat to the public health and safety and to the environment. The handling
of lead-containing substances by inadequately trained employers, employees and
other persons subjects the citizens of this Commonwealth to the risk of further
release of lead into the environment.
35 P.S. § 5902(a).
4
necessary elements of common law public nuisance. Id. ¶ 5. Specifically, the
Manufacturers argue that a public nuisance plaintiff must allege that the defendant
maintained control over the nuisance, that the defendant’s conduct interfered with a
“right common to all members of the public,” and that the conduct was the proximate
cause of the alleged injuries. See id. ¶¶ 6, 8 (citing Restatement (Second) of Torts
§ 821 cmt. g) (Am. Law Inst. 1965)). The Manufacturers further assert that the
County did not sufficiently allege causation, since it is the poor maintenance of
existing lead paint, in the decades since any of the Manufacturers last sold lead paint,
which is the proximate cause of the injuries. Id. ¶ 9. Furthermore, the Manufacturers
assert, the County only alleged private, personal injuries, rather than any interference
with a public right. Id. ¶ 8.
The Manufacturers’ second objection, also in the nature of a demurrer, asserts
that the County’s allegations lacked any support in the Certification Act. Id. ¶ 12.
The Manufacturers explained that the legislation “regulates the training, certification
and performance of persons engaged in lead abatement,” not the manufacture of lead
paint. Id. ¶ 13 (citing Section 2(a) of the Certification Act, 35 P.S. § 5902(a)(2)).
The Manufacturers additionally argue that the Certification Act does not declare a
public nuisance of any sort, does not authorize legal action unless its provisions have
been violated, and grants the Department of Labor and Industry (Department) the
exclusive authority to enforce those provisions.3 Id. ¶ 15.
3
The Manufacturers also asserted that the County failed to join necessary parties pursuant
to Pennsylvania Rule of Civil Procedure 1028(a)(5). Pa.R.Civ.P. 1028(a)(5). Specifically, the
Manufacturers argued that the County should have joined the individual property owners, since
the remedies sought “would subject [them] to potential criminal and civil liability.” O.R., Item
No. 35, POs ¶ 16. However, that issue is not one of the issues on which this Court granted the
appeal.
5
In opposition to the Preliminary Objections, the County clarified that it sought
“declaratory relief only on the basis of [the Certification Act, which] focused entirely
and specifically on the hazards of lead paint.” O.R., Item No. 60, County’s
Memorandum (Mem.) of Law at 1 (emphasis added). In enacting the Certification
Act, the County argued, the General Assembly declared that “lead paint is, in and of
itself, always and everywhere a health hazard.” Id. at 27. Accordingly, the County
explains, “Pennsylvania state law is clear: lead paint is illegal in Pennsylvania,
always and everywhere.” Id. at 27. The County maintained, however, that it
satisfied the elements of a common law public nuisance claim. See generally id. at
9-23.
In an August 6, 2021 Order, the Trial Court overruled the Manufacturers’
Preliminary Objections. See O.R., Item No. 84. The Manufacturers then filed a
motion asking that the Trial Court either reconsider its decision or grant permission
for interlocutory appeal, which, too, was denied in a September 13, 2021 order. See
O.R., Item No. 89. The Trial Court has not issued an opinion in support of either
order pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).4 Pa.R.A.P.
1925(a). On February 18, 2022, this Court granted a petition for permission to
appeal, which was limited to the following issues:
Whether the Amended Complaint states a claim for public nuisance
where the County seeks declaratory relief only on the basis of the . . .
Certification Act, 35 P.S. [§§ 5901-5916] . . . which does not declare
any public nuisance but rather authorizes the [Department] to regulate
contractors engaged in lead abatement?
4
Pa.R.A.P. 1925(a) provides that, upon the receipt of a notice of appeal, “the judge who
entered the order giving rise to the notice of appeal, if the reasons for the order do not already
appear of record, shall . . . file of record at least a brief opinion of the reasons for the order.”
6
Whether the Pennsylvania Supreme Court’s decision in Skipworth v.
Lead Industries Association, 690 A.2d 169 (Pa. 1997), affirming the
general rule of proximate causation and rejecting market-share and
alternative liability, requires dismissal because the County admittedly
does not “identify the manufacturer of any of the lead pigment”
supposedly at any property that is part of the alleged public nuisance?
O.R., Item No. 118.
II. Issues
The Manufacturers argue that the Certification Act does not support a claim
that the mere presence of lead paint is a public nuisance. According to the
Manufacturers, such an interpretation is contrary to the Certification Act’s plain
language, broad structure, history, and application. The Manufacturers further argue
that, if this Court considers the County’s common law nuisance claim, the County
failed to identify the Manufacturers on a property-by-property basis, as is required
to establish causation. Consequently, the Manufacturers argue that the Trial Court
erred as a matter of law in overruling their Preliminary Objections.
III. Discussion
Our scope of review of a trial court’s ruling on preliminary objections is
limited to a determination of whether the trial court abused its discretion or
committed an error of law. Leahy v. Pa. Liquor Control Bd., 551 A.2d 1153, 1156
(Pa. Cmwlth. 1988). Preliminary objections are to be sustained only in cases where
the pleader has clearly failed to state a claim for which relief can be granted. Torres
v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010). Where a preliminary objection
presents a question of law, our standard of review is de novo and our scope of review
is plenary. Firearm Owners Against Crime v. City of Harrisburg, 218 A.3d 497,
505 (Pa. Cmwlth. 2019).
7
A. Lead Paint as a Public Nuisance Pursuant to the Certification Act
The Manufacturers argue that the Certification Act does not declare, in any
fashion, the presence of lead paint to be a public nuisance. O.R., Item No. 35,
Manufacturers’ Preliminary Objections (POs) ¶ 12. Rather, they argue, the
Certification Act is solely concerned with “the training, certification, and
performance of persons engaged in lead abatement.” Id. ¶ 13. According to the
Manufacturers, the Certification Act’s findings state only that lead poisoning, not
lead paint, is a health hazard, and that improper abatement poses a threat to public
health. Id. ¶ 14. Furthermore, the Manufacturers argue, the Certification Act grants
exclusive enforcement authority to the Department, and even then, only for
violations of the Certification Act (which the County did not allege). Id. ¶ 15. Thus,
the Manufacturers argue that the Trial Court improperly overruled their Preliminary
Objection to the County’s statutory public nuisance claim.
A brief recounting of the Certification Act’s historical background aids in
clarifying its purpose. In 1992, the United States Congress enacted the Residential
Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. §§ 4851-4856 (Hazard
Reduction Act). The legislation was enacted with the purpose of “radically alter[ing]
the federal paradigm for identifying and treating lead-based paint hazards” by
“targeting federal efforts to the reduction and elimination of actual, not potential
hazards, and by permitting interim hazard reduction measures, rather than full hazard
elimination.” S. Rep. No. 102-332, at 111 (1992). One of the Hazard Reduction
Act’s measures was the provision of up to $250 million in federal grants “to assist
cities and states in addressing the enormous lead paint poisoning risks posed by
private low income housing.” Id. at 115. To be eligible, a state was required to
8
develop and obtain federal approval of its own lead-reduction program. See 15
U.S.C. § 2684(a)-(g).
Just minutes before the Pennsylvania House of Representatives passed the
Certification Act unanimously in 1995, the legislation’s sponsor explained that it
was drafted to “fulfill the requirements contained in the . . . Hazard Reduction Act .
. . , which stipulates that States must develop programs for the certification of lead-
based paint workers and the accreditation of lead-based paint training providers.”
Legislative Journal–House, June 21, 1995, at 1628.5 Urging passage, the sponsor
explained that the legislation would “allow Pennsylvania to draw down millions of
dollars in federal funds to assist in lead abatement work.” Id.
In Section 2(a)(1) of the Certification Act, the General Assembly cited two
key findings as the basis for the legislation: first, that lead poisoning had become “a
significant health hazard to the citizens of this Commonwealth”; and, second, that
“[i]mproper abatement of lead-based paint within this Commonwealth constitutes a
serious threat to the public health and safety and to the environment.” 35 P.S.
§ 5902(a)(1). More specifically, the “handling of lead-containing substances by
inadequately trained employers, employees and other persons subjects the citizens
of this Commonwealth to the risk of further release of lead into the environment.”
Section 2(a)(2), 35 P.S. § 5902(a)(2).
The General Assembly’s stated intent in enacting the Certification Act is to
address the above concerns “by preventing exposure to lead through regulation of
lead-based paint activities”; by “establish[ing] a program to train individuals
engaged in lead-based paint activities to insure they have the necessary skill,
5
While intent cannot be conclusively determined from legislative remarks, this Court may
review legislative policy reasons expressed in the House and Senate journals as an aid in
construction. Young v. Ins. Dep’t, 604 A.2d 1105, 1108 n.8 (Pa. Cmwlth. 1992).
9
training, experience and competence to perform” them; by “monitor[ing] the work
practices of those persons performing lead-based paint activities”; and by “insur[ing]
that the cleanup, disposal and post[-]abatement clearance testing activities of persons
performing lead-based paint activities are performed in accordance with required
standards.” Section 2(b)(1)-(4), 35 P.S. § 5902(b)(1)-(4). “Lead-based paint
activities” is defined as “risk assessment, inspection, and abatement.” Section 3 of
the Certification Act, 35 P.S. § 5903. In turn, “abatement” includes “[l]ess-than-full
abatement whereby the sources of lead contamination are reduced sufficiently to
create a ‘lead-safe’ environment rather than a ‘lead-free’ environment.” Id.
(emphasis added). In furtherance of its aims, the Certification Act empowers the
Department “to issue an order requiring compliance with this [A]ct or regulations
promulgated under this [A]ct.” Section 10(a) of the Certification Act, 35 P.S.
§ 5910(a).
Instantly, the County avers that in Section 2 of the Certification Act, the
General Assembly “has explicitly and/or implicitly declared that lead paint is a
public nuisance.” O.R., Item No. 19, Am. Compl. ¶ 124. The County further claims
that it has brought the instant action pursuant to Section 2, which empowers the
County to “enforce the public rights of its citizenry.” Id. ¶ 125. Additionally, the
County explains that it derives this power from Section 10(d)(4), which, in the
County’s view, authorizes the “initiation of legal action or proceeding in a court of
competent jurisdiction” for violations of a regulation promulgated under the
Certification Act. Id. (citing 35 P.S. § 5910(d)(4)).
We begin our analysis by rejecting the County’s contention that the
Certification Act “explicitly” declares anything to be a public nuisance. Such a
declaration would be self-evident through the use of clear legislative language. See,
10
e.g., Act of June 23, 1931, P.L. 1178, No. 319, 68 P.S. § 467 (providing that “any
building, or part of a building, used for the purpose of fornication, lewdness,
assignation, and/or prostitution is hereby declared to be a common nuisance”);
Section 3 of the Clean Streams Law,6 35 P.S. § 691.3 (providing that the pollution
of Commonwealth waters “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”) (emphases
added). The Certification Act, by contrast, does not contain a single occurrence of
the word “nuisance.”
Next, we consider the argument that the General Assembly “implicitly”
declared lead paint to be a public nuisance. Our courts have, on occasion,
determined certain conduct to be a public nuisance “because it is so declared by
statute . . . implicitly.” Com. v. MacDonald, 347 A.2d 290, 303 (Pa. 1975). In
Pennsylvania Society for Prevention of Cruelty to Animals v. Bravo Enterprises,
Inc., 237 A.2d 342, 360 (Pa. 1968), for example, our Supreme Court reasoned that a
statute outlawing bullfighting “is declarative of the public policy and is tantamount
to calling the proscribed matter prejudicial to the interests of the public.” Reasoning
that “[i]njury to the public is the essence of a public nuisance,” the Court concluded
that the statute implicitly declared bullfighting to be “properly enjoinable as being
contrary to law and prejudicial to the interests of the public.” Id. In other words,
the statute’s prohibition of the underlying conduct was a necessary condition to the
determination that the statute implicitly declared that conduct to be a public
nuisance. See also MacDonald, 347 A.2d at 290 n.30 (explaining that Bravo
Enterprises stands for the proposition that “bullfighting is [a] public nuisance
because [it is] proscribed by statute”); Phila. Chewing Gum Corp. v. Dep’t of Env’t
6
Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§ 691.1-691.1001.
11
Res., 387 A.2d 142, 150 n.5 (Pa. Cmwlth. 1978) (determining that conduct
prohibited by Section 316 of the Clean Streams Law, 35 P.S. § 691.316, “constitutes
an implicitly declared statutory public nuisance”), aff’d in part, rev’d in part,
Natural Wood Preservers, Inc. v. Dep’t of Env’t Res., 414 A.2d 37 (Pa. 1980).
The Certification Act stands in stark contrast to the statutes that our courts
have interpreted to implicitly declare public nuisances. There is nothing in the
Certification Act that retroactively proscribes the past manufacture and sale of lead
paint, which is the only conduct the Amended Complaint attributes to the
Manufacturers. Indeed, the Certification Act’s stated intent, its plain language, its
drafting history, and its mechanisms of enforcement all indicate that the legislation
was enacted to address the dangers posed by the improper abatement of lead paint.
We conclude that, contrary to the County’s assertions, the Certification Act does not
declare, explicitly or implicitly, that all lead paint is a public nuisance. Indeed,
Section 3 specifically provides that proper abatement may create a “‘lead-safe’
environment” rather than one that is “‘lead-free.’” 35 P.S. § 5903.
In addition, the County misinterprets the Certification Act’s enforcement
provisions. It is true that Section 10(d)(4) provides that “a person who fails to
comply with a requirement of this [A]ct or a regulation promulgated under this [A]ct
or who fails to obey an order issued by the [D]epartment may be subject to . . .
initiation of legal action or proceeding in a court of competent jurisdiction.” 35 P.S.
§ 5910(d)(4). However, the preceding subsections of Section 10 grant only the
Department the power of enforcement.7 See id. § 5910(b) (authorizing the
Department to “issue an order requiring compliance with this [A]ct or regulations
7
In interpreting Section 10(d)(4) of the Certification Act, we are mindful that “a court
should not interpret statutory words in isolation, but must read them with reference to the context
in which they appear.” Roethlein v. Portnoff Law Assocs., Ltd., 81 A.3d 816, 822 (Pa. 2013).
12
promulgated under this [A]ct”); id. § 5910(c) (authorizing additional remedies if
“the [D]epartment determines that a hazardous condition exists due to the failure to
comply with a provision of this [A]ct or a regulation promulgated under this [A]ct”);
id. § 5910(d)(1) (authorizing the “[d]enial, suspension or revocation of accreditation
for a person, training provider or contractor”). Section 10(d)(4) therefore cannot be
reasonably interpreted to empower political subdivisions to take action against
alleged violators of the Certification Act or its accompanying regulations. Even if
such a broad interpretation were warranted, the County has not alleged that any
Manufacturer violated a Certification Act regulation.
We conclude that Section 2 of the Certification Act does not declare lead paint
to be a public nuisance. Section 10 of the Certification Act also does not empower
the County or other political subdivisions to enforce its provisions, and even if it did,
the Amended Complaint fails to identify which provision the Manufacturers
allegedly violated. Accordingly, we conclude that the Amended Complaint fails to
state a cause of action for public nuisance under the Certification Act.
B. Lead Paint as a Public Nuisance Pursuant to the Common Law
1. Public Right
Next, the Manufacturers argue that the Amended Complaint “fails to allege
the interference with a public right”; rather, it alleges “a risk of personal injury from
lead paint to individuals within privately owned—not [publicly] accessible—
residences.” O.R., Item No. 35, POs ¶ 8.
13
Section 821B of the Restatement (Second) of Torts (Am. Law Inst. 1965)
(Restatement (2nd)), on which Pennsylvania courts rely in public nuisance actions,8
provides:
(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.
Restatement (2nd) § 821B.
Unlike reasonableness, which is a factual inquiry, whether a right is public is
a question of law. Machipongo Land & Coal Co. v. Com., 799 A.2d 751, 773 (Pa.
2002). In the context of public nuisance claims, a public right is necessarily
collective in nature. Restatement (2nd) § 821B cmt. g. It is not like the individual
right that everyone has not to be assaulted or defamed or defrauded or negligently
injured. Id.; see also Blue Mountain Pres. Ass’n v. Twp. of Eldred, 867 A.2d 692,
704 (Pa. Cmwlth. 2005) (explaining that a public nuisance “affects the general
8
The Restatement (Third) of Torts (Am. Law Inst. 1998) was published in 1998; however,
Pennsylvania remains a Second Restatement jurisdiction until or unless the courts adopt the Third
Restatement definition. Com. v. Monsanto, 269 A.3d 623, 648 n.18 (Pa. Cmwlth. 2021).
14
public,” rather than “merely some private individual or individuals”) (citing Groff v.
Borough of Sellersville, 314 A.2d 328, 330 (Pa. Cmwlth. 1974)).
Because the rights affected by a public nuisance are collective, the nuisance
“produces no greater injury to one person than to another.” Twp. of Eldred, 867
A.2d at 704; see also Greyhound Lines, Inc. v. Peter Pan Bus Lines, Inc., 845 F.
Supp. 295, 302 (E.D. Pa. 1994) (explaining that, under Pennsylvania tort law, “the
law of public nuisance comprehends threats to the public at large, not specific
persons”). The Second Restatement gives the hypothetical example of pollution in
a stream, which, if it “deprives fifty or a hundred lower riparian owners of the use
of the water for purposes connected with their land,” is not a public nuisance.
Restatement (2nd) § 821B cmt. g. “If, however, the pollution prevents the use of a
public bathing beach or kills the fish in a navigable stream and so deprives all
members of the community of the right to fish, it becomes a public nuisance.” Id.
(emphasis added).
Instantly, the County argues that its citizens have “have a common right to be
free from the detrimental effects of exposure to lead paints/pigments in, on, and
around private homes and residences throughout the County.” O.R., Item No. 19,
Am. Compl. ¶ 123. Because the Manufacturers’ conduct has “significantly and
materially” interfered with such rights, and continues to do so, the County alleges,
they are liable for public nuisance. Id. The County further explains that public
nuisances need not only impact “public space[s]” or “shared[,] indivisible
resource[s],” but private dwellings as well. O.R., Item No. 60, County’s Mem. of
Law at 13. In support, the County cites this Court’s decision in Feeley v. Borough
of Ridley Park, 551 A.2d 373 (Pa. Cmwlth. 1988). In that case, we affirmed a lower
court’s finding that a homeowner’s “deplorable state of disrepair, lacking proper
15
plumbing, electricity, or water,” in addition to her failure to care properly for her
many household cats, constituted a public nuisance. Id. at 375. If, the County
argues, this Court could determine that conduct with such a limited impact could be
a public nuisance, then “the poisonous and decaying paint on tens of thousands of
walls of the County’s homes . . . would also qualify.” County’s Mem. of Law at 14.
While it is true that public nuisances may occur on private property, the rights
that are adversely impacted must still be “collective in nature.” Restatement (2nd)
§ 821B cmt. g. The purported rights asserted in the Amended Complaint, by
contrast, are akin to the individual rights “not to be assaulted or defamed or
defrauded or negligently injured,” which cannot give rise to public nuisance actions.
The distinction between public and individual rights still holds even in instances
where the individual rights of a large number of persons have been affected. In
contrast to public nuisances,
[t]he manufacture and distribution of products rarely, if ever, causes a
violation of a public right as that term has been understood in the law
of public nuisance . . . . Even if the owners of a fast-food chain were to
sell millions of defectively produced hamburgers causing harm to
millions of people who ate them, the violation of rights is a series of
separate violations of private rights—typical tort or contract rights that
the consumers might have—not a violation of the rights of the general
public, or of the public as the public. The sheer number of violations
does not transform the harm from individual injury to communal injury.
Donald G. Gifford, Public Nuisance as a Mass Products Liability Tort, 71 U. CIN.
L. REV., 741, 817 (2003) (emphasis added).
For these reasons, we also conclude that Feeley is inapposite here. In that
case, the alleged nuisance consisted entirely of “noxious and overpowering odors
emanating from [the defendant’s] home.” 551 A.2d at 375. Neighbors testified that
the odors “forced [them] to keep their windows closed.” Id. Residents who lived
“down the block and around the corner” were also affected. Id. In other words, it
16
was the collective interest in the neighborhood’s clean air that was impacted, not
merely the accumulation of various injuries to individual property rights. The injury
was therefore more akin to the pollution of a stream that deprives the entire
community of the right to fish than to the injuries alleged by the County.
Furthermore, the plaintiff in Feeley did not allege that the defendant’s conduct
impacted only some neighborhood residents, or impacted some residents
substantially more than others. Feeley is therefore distinguishable from this case in
that one dwelling may be adversely impacted by lead paint, while others nearby may
not be impacted at all. Such individual injuries are distinct from a public nuisance,
which “produces no greater injury to one person than to another.” Twp. of Eldred,
867 A.2d at 704.
2. Causation
Next, the Manufacturers maintain that the Trial Court erred in overruling their
Preliminary Objections because the County has failed to satisfy Pennsylvania tort
law’s “fundamental causation requirement.” Manufacturers’ Br. at 32. Specifically,
the Manufacturers explain that “in order to establish a viable claim for abatement of
lead paint and pigment, a plaintiff must allege on a property-by-property basis that
lead paint or pigment manufactured by a particular identified defendant is present
today and causing harm at a particular property.” Id. at 31-32.
The Manufacturers further argue that the County “is trying to bring the same
claim” as that brought by the unsuccessful plaintiffs in Skipworth. Manufacturers’
Br. at 34. In that case, the child plaintiff had been hospitalized for lead poisoning
after ingesting lead paint in her legal guardian’s home, which was built circa 1870.
Skipworth, 690 A.2d at 170-71. The guardian and mother filed a products liability
action against several paint manufacturers. Id. at 171. Admittedly unable to identify
17
the specific manufacturer that made the lead paint used in the guardian’s home, the
plaintiffs “proceeded against the [defendants] by invoking theories of collective
liability.” Id. The trial court granted summary judgment on all counts and the
Superior Court affirmed, explaining such alternative liability theories have not been
adopted into Pennsylvania law. See Skipworth by Williams v. Lead Indus. Ass’n,
Inc., 665 A.2d 1288, 1291 (Pa. Super. 1995), aff’d, 690 A.2d 169.
On appeal, the primary question before the Supreme Court was whether the
Court “should adopt the market share liability theory in the context of lead poisoning
cases.” Skipworth, 690 A.2d at 171. Describing market share liability as “an
exception to the general rule that a plaintiff must establish that the defendant
proximately caused his or her injury,” the Court compared the matter sub judice to
the seminal case on market share liability, Sindell v. Abbott Laboratories, 607 P.2d
924 (Cal. 1980).9 The Court acknowledged the possibility of a situation such as the
one in Sindell, in which Pennsylvania courts may be compelled “to depart from
[their] time-tested general rule” of proximate causation. Skipworth, 690 A.2d at 172.
However, the Court declined to do so, holding that application of market share
liability to lead paint cases “would lead to a distortion of liability which would be so
gross as to make determinations of culpability arbitrary and unfair.” Id. The Court
explained that, in order to apply market share liability, all of the makers of lead paint
9
In Sindell, the plaintiff suffered severe health complications allegedly caused by
diethylstilbestrol (DES), a medicine once prescribed to prevent miscarriages, taken by her mother
before the plaintiff’s birth. 607 P.2d at 926. Unable to identify the specific manufacturer of her
mother’s drugs, the plaintiff joined as defendants 5 of the approximately 200 drug companies that
were manufacturing DES during the relevant period. Id. at 929. The California Supreme Court
overruled the manufacturers’ preliminary objections and instructed the trial court to apply a
formula whereby “[e]ach defendant will be held liable for the proportion of the judgment
represented by its share of that market unless it demonstrates that it could not have made the
product which caused [the] plaintiff’s injuries.” Id. at 937.
18
during the more than 100 years when it may have been used in the guardian’s home
would have to be held liable. Id. at 173. During that period, many manufacturers
entered and left the lead paint market. Id. Furthermore, the Court noted that the
offending drug in Sindell was a “fungible commodity,” which all companies
manufactured according to a single formula. Id. at 172. Lead paint, by contrast, had
“different chemical formulations, contained different amounts of lead, and differed
in potential toxicity.” Id. at 173. Such complications, the Court held, were “fatal to
[the] claim that application of market share liability to these defendants would be
appropriate.” Id.
In its appellate brief, the County argues that Skipworth is inapposite because
its holding “was specifically limited to products liability cases.” County’s Br. at 23
(emphasis in original). According to the County, in Skipworth, the Supreme Court
ruled out market share liability “in large part because it would be difficult to
ascertain which lead paint manufacturers would have been responsible for the paint
on the walls of that one particular victim’s house.” Id. at 23 (emphasis in original).
That issue, the County argues, is irrelevant to a public nuisance claim, “which by its
nature implicates” all of the Manufacturers in the manufacture, sale, distribution,
and or promotion of lead paint across the County. Id. at 23-24. The usual standard
of proximate causation, the County concludes, is therefore inapplicable.10
10
Although the County argues that proximate causation is not a necessary element of its
claim, it fails to state which theory of liability it believes should be applied in this case. Given the
County’s extensive discussion of Skipworth and attempt to distinguish it, we surmise that it has
market share liability in mind. We note, however, that the Supreme Court in Skipworth briefly
discussed several other liability theories in relation to lead paint litigation and similarly rejected
all of them. See Skipworth, 690 A.2d at 174 (explaining that “alternate liability” was inapplicable
because the defendant manufacturers “did not act simultaneously in producing the lead paint”); id.
(explaining that “conspiracy liability” was inapplicable because the plaintiffs failed to show that
(Footnote continued on next page…)
19
We disagree with the County that Skipworth’s holding was specifically
limited to products liability cases. To the contrary, the Supreme Court clearly stated
that it was considering whether Pennsylvania “should adopt the market share
liability theory in the context of lead poisoning cases.” 690 A.2d at 171 (emphasis
added). After weighing and rejecting the plaintiffs’ arguments, the Supreme Court
concluded that the “[a]pplication of market share liability to lead paint cases such
as this one would lead to a distortion of liability which would be so gross as to make
determinations of culpability arbitrary and unfair.” Id. at 172 (emphasis added).
The Supreme Court’s rationale for rejecting market share liability further
militates against distinguishing Skipworth from the instant matter. The inherent
difficulties of apportioning liability, which the Court determined would prevent the
fair application of market share liability in lead paint cases, are just as relevant in
this case. For example, the Skipworth Court expressed skepticism that accurate
market share estimates would ever be obtainable, “considering the lengthy relevant
time period in question.”11 690 A.2d at 173. Even if they were obtainable, the Court
concluded, such estimates “would not serve to approximate [a] defendant’s
responsibility for injuries caused by its lead paint,” given the varying levels of
two or more defendants had “combined or agreed with intent to do an unlawful act or to do an
otherwise lawful act by unlawful means”); id. at 174-75 (explaining that “concert of action”
liability is inapplicable because the plaintiffs failed to “identify the wrongdoer or the person who
acted in concert with the wrongdoer”). Since these liability theories appear to be inapplicable to
this case for the same reasons as in Skipworth, we do not address them.
11
We note that Skipworth involved a period nearly identical to the relevant period in this
matter. The Skipworth plaintiffs “alleged that they had identified and joined in this action
substantially all of the manufacturers of lead pigment used in residential house paint from 1870,”
when the guardian’s house was built, “until production of lead pigment ceased in 1977.” 690 A.2d
at 171. Here, the County seeks damages for lead paint manufactured and sold in the County
between 1880 and 1978.
20
toxicity and bioavailability in different paint formulas, among other factors. Id. The
“distortion of liability” that the Supreme Court anticipated would result does not
depend on the specific legal theory being advanced by the plaintiff. As the Supreme
Court observed, the essential purpose of market share liability is to ensure that “each
manufacturer’s liability would approximate its responsibility for the injuries caused
by its own products.” Id. Whether a plaintiff alleges negligence or a public
nuisance, the same impediments to a reliably accurate calculation of liability prevent
the market share liability theory from being fairly applied in the lead paint context.12
The County maintains that “any continued reference to Skipworth and other
products liability cases is simply a red herring,” since its public nuisance action does
not seek relief for private harms. County’s Br. at 25. The Trial Court agreed,
explaining that “Skipworth . . . was a [products liability] suit on behalf of one
12
In its appellate brief, the County relies on this Court’s recent decision in Monsanto,
which, in the County’s view, stands for the proposition that the public nuisance plaintiff “need not
meet any of the elements of product liability law.” County’s Br. at 31. In Monsanto, the
Commonwealth brought an action against a chemical corporation’s successors for the release of
polychlorinated biphenyls (PCBs) into public waterways, in violation of Section 3 of the Clean
Streams Law, 35 P.S. § 691.3. The Commonwealth alleged, inter alia, that the release of PCBs
constituted a public nuisance. 269 A.3d at 635. The defendants objected on the basis that the
chemicals had been sold to third parties by the time of their discharge into the waterways, and that
“Pennsylvania does not impose nuisance liability against a manufacturer after placing a product
into the stream of commerce.” Id. at 648. This Court overruled the objection, explaining: “the
[Commonwealth] clearly declare[d] that [the d]efendants are responsible for PCBs entering the
Commonwealth’s waters because [the d]efendants 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.” Id. at 653.
We conclude that Monsanto is distinguishable from this case for two reasons. First, the
defendants in Monsanto allegedly engaged in conduct that had been explicitly declared by a statute
to be a public nuisance, which, this Court noted, would constitute a nuisance per se. Id. at 649.
Second, the Commonwealth alleged harm to public waterways, which, as this Court concluded,
constituted an “offense that annoys the community in general.” Id. (citing SPTR, Inc. v. City of
Phila., 150 A.3d 160, 167 (Pa. Cmwlth. 2016)).
21
individual, so it would make sense to require proof of the manufacturer of the paint
that injured that individual. By contrast, the [C]ounty here alleges widespread harm
throughout the community.” O.R., Item No. 100 n.1. We disagree that such
purported differences justify distinguishing this matter from Skipworth. As
explained in the foregoing section, the harms alleged by the County, even if alleged
to have occurred in large numbers, do not constitute the injury to communal interests
required of a public nuisance claim. Since the County only alleges individual harms
occurring on private property as an alleged result of the Manufacturers’ products,
we agree with the Manufacturers that the County’s claim is essentially a veiled
products liability claim in the guise of a public nuisance action. For this additional
reason, we conclude that Skipworth’s holding is properly applied to this matter.
IV. Conclusion
We conclude that the County has failed to identify a statutory basis for its
public nuisance action, or to allege that the Manufacturers proximately caused the
County’s alleged injuries pursuant to Pennsylvania tort law. As a consequence, the
Amended Complaint fails to state a claim for which relief can be granted. We
reverse the Trial Court’s Order and remand to the Trial Court for the entry of an
order dismissing the Amended Complaint.
__________________________________
ELLEN CEISLER, Judge
22
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Atlantic Richfield Company, E.I. du :
Pont de Nemours and Company, NL :
Industries, Inc., PPG Industries, Inc., :
and The Sherwin-Williams Company, :
Appellants :
:
v. : No. 1260 C.D. 2021
:
The County of Lehigh, Pennsylvania :
ORDER
AND NOW, this 5th day of May, 2023, the Order of the Court of Common
Pleas of Lehigh County (Trial Court) in the above-captioned matter, dated August
6, 2021, is hereby REVERSED. This matter is hereby REMANDED to the Trial
Court for the entry of an order dismissing the County of Lehigh, Pennsylvania’s
Amended Complaint.
Jurisdiction relinquished.
__________________________________
ELLEN CEISLER, Judge