Kowall, L. v. US Steel Corp.

J-A09031-24

2024 PA Super 227

LOUISE KOWALL, DONNA KOPECEK : IN THE SUPERIOR COURT OF

AND EVELYN VEHOUC, : PENNSYLVANIA

INDIVIDUALLY AND ON BEHALF OF :

ALL OTHER SIMILARLY SITUATED :

:

:

v. :

:

: No. 844 WDA 2023

UNITED STATES STEEL :

CORPORATION, INC, A DELAWARE :

CORPORATION DOING BUSINESS IN :

PENNSYLVANIA AND USX :

CORPORATION, A DELAWARE :

CORPORATION :

:

:

APPEAL OF: UNITED STATES STEEL :

CORPORATION, INC. AND USX :

CORPORATION :

Appeal from the Order Entered December 13, 2022

In the Court of Common Pleas of Washington County Civil Division at

No(s): C-63-CV-2017-3355

BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.

OPINION BY NICHOLS, J.: FILED: October 1, 2024

Appellants United States Steel Corporation, Inc. and USX Corporation

appeal from the order denying their motions for summary judgment.

Appellants contend that the trial court erred in its interpretation of

Pennsylvania’s Hazardous Sites Cleanup Act1 (HSCA) and by recognizing a

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1 35 P.S. §§ 6020.101-6020.1305.

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cause of action for trespass based on the airborne intrusion of invisible

particulates. We affirm.

We adopt the trial court’s summary of the facts underlying this matter.

See Trial Ct. Op. & Order, 12/16/21, at 1, 4-11. Briefly, Appellees2 own

properties located within five miles of the site of the former Donora Zinc

Works. The Donora Zinc Works refined zinc ore into zinc using furnaces to

heat the ore to an extremely high temperature. The refining process released,

among others, lead, zinc, cadmium, and arsenic as by-products. The Donora

Zinc Works released these by-products into the atmosphere through

smokestacks. Appellants’ predecessors in interest operated the Donora Zinc

Works from 1915 to 1957. The trial court stated:

[Appellants] admit[] that the Donora Zinc Works caused lead,

zinc, cadmium[,] and arsenic to be released in[to] the air and to

be deposited on land outside of the Zinc Works. [Appellants]

further admit[] that it knew at the time that the operations caused

those contaminations to be released. [Appellants] admit[] that

those metals are considered to be hazardous substances under

the HSCA.

Id. at 12.

Appellees filed a class action complaint against Appellants in 2017.

Therein, Appellees raised four claims: violation of the HSCA, negligence, public

and private nuisance, and trespass. Compl., 7/7/17, at 11-21; R.R. at 42a-

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2 Appellees are Louise Kowall, Donna Kopecek, and Evelyn Vehouc,

individually and on behalf of all other similarly situated.

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52a.3 On December 16, 2021, the trial court entered an order granting

Appellees’ motion for class certification. Trial Ct. Op. & Order, 12/16/21, at

20-21.

Appellants filed two motions for summary judgment on August 4, 2022.

In their first motion, Appellants argued that Appellees cannot state a cause of

action for trespass based on Appellants’ alleged failure to remove invisible

particulates on Appellees’ properties. R.R. at 183a-208a. In their second

motion, Appellants contended that Appellees failed to meet the statutory

requirements to bring a private cause of action under the HSCA. Id. at 219a-

53a. Appellees responded that Appellants’ motion for summary judgment on

trespass was premature because Appellees had not yet produced their expert

reports in discovery. Id. at 294a, 297a-99a, 306a-13a. On December 13,

2022,4 the trial court issued an order and opinion denying both of Appellants’

motions for summary judgment.

On January 10, 2023, Appellants filed a motion requesting that the trial

court amend its December 13, 2022 order to include language from 42 Pa.C.S.

§ 702(b). Id. at 521a-32a. The trial court granted Appellants’ motion and

amended its order denying summary judgment to include the requested

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3 We may cite to the parties’ reproduced record for the parties’ convenience.

4 The trial court’s opinion and order are both dated December 12, 2022, but

the trial court notified the parties of the entry of its opinion and order on

December 13, 2022. See Pa.R.A.P. 108(b); Pa.R.C.P. 236(b). We have

amended the caption accordingly.

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language on January 25, 2023.5 On February 17, 2023, Appellants filed a

timely petition for permission to appeal with this Court pursuant to Pa.R.A.P.

1311. This Court granted Appellants’ petition for review on July 21, 2023.

The trial court did not order Appellants to comply with Pa.R.A.P. 1925(b) and

did not issue a separate Rule 1925(a) opinion.

Appellants raise the following issues on appeal:

1. Does a plaintiff’s attorney’s payment for environmental

sampling of property—which the plaintiff has no obligation to

reimburse—constitute the incurrence of “costs of response by

any other person” as required to state a cause of action under

[35 P.S. § 6020.702(a)(3)]?

2. Does [35 P.S. § 6020.1115]—which provides that courts “may

grant any equitable relief” in actions “to prevent or abate”

releases of hazardous substances—authorize an order

requiring a defendant to pay for un-incurred future costs for

property sampling and remediation in a private citizen suit?

3. Does Pennsylvania law recognize a cause of action for trespass

based on airborne intrusions of invisible particulates and, if so,

does it require proof of substantial harm to property from those

intrusions?

Appellants’ Brief at 5-6.

Standard of Review

The principles governing our review are well settled:

Our scope of review is plenary, and our standard of review is the

same as that applied by the trial court. Our Supreme Court has

stated the applicable standard of review as follows: an appellate

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5 We note that although trial court’s order was time-stamped and docketed on

January 24, 2023, the trial court sent notice of entry of this order to the parties

on January 25, 2023. See Pa.R.A.P. 108(b); Pa.R.C.P. 236(b).

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court may reverse the entry of a summary judgment only where

it finds that the lower court erred in concluding that the matter

presented no genuine issue as to any material fact and that it is

clear that the moving party was entitled to a judgment as a matter

of law. In making this assessment, we view the record in the light

most favorable to the non-moving party, and all doubts as to the

existence of a genuine issue of material fact must be resolved

against the moving party. [When] our inquiry involves solely

questions of law, our [standard of] review is de novo.

With respect to the denial of summary judgment, we review the

trial court’s denial of summary judgment for an abuse of discretion

or error of law.

Hildebrand v. EQT Prod. Co., 165 A.3d 969, 971 (Pa. Super. 2017)

(citations omitted and formatting altered).

Further, “[w]here the issue is the proper interpretation of a statute, it

poses a question of law; thus, our standard of review is de novo, and the

scope of our review is plenary.” Yocabet v. UPMC Presbyterian, 119 A.3d

1012, 1019 (Pa. Super. 2015) (citations omitted and formatting altered). It

is well-established that this Court may affirm on any basis supported by the

record. See Lynn v. Nationwide Ins. Co., 70 A.3d 814, 823 (Pa. Super.

2013).

Rule of Civil Procedure 1035.2, which governs motions for summary

judgment, states:

After the relevant pleadings are closed, but within such time as

not to unreasonably delay trial, any party may move for summary

judgment in whole or in part as a matter of law

(1) whenever there is no genuine issue of any material fact as

to a necessary element of the cause of action or defense which

could be established by additional discovery or expert report,

or

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(2) if, after the completion of discovery relevant to the motion,

including the production of expert reports, an adverse party

who will bear the burden of proof at trial has failed to produce

evidence of facts essential to the cause of action or defense

which in a jury trial would require the issues to be submitted

to a jury.

Pa.R.C.P. 1035.2.

Our Supreme Court has explained that “[Rule 1035.2] is intended to

foster, not inhibit, the discretion of the trial court. The purpose of the Rule is

to weed out meritless cases after discovery has been completed, not to

eliminate meritorious claims prematurely before discovery is completed.”

Wolloch v. Aiken, 815 A.2d 594, 596 (Pa. 2002) (citation omitted).

Costs of Response

In their first issue, Appellants argue that the trial court erred in denying

their motion for summary judgment because Appellees have not incurred any

costs of response, and therefore, have failed to state a claim under the HSCA.

Appellants’ Brief at 20-33. Appellants note that under the HSCA, a party who

is “responsible for a release or threatened release of a hazardous substance”

is liable for the “[reasonable and necessary or appropriate] costs of response

incurred by any other person.” Id. at 22-23 (quoting 35 P.S. §

6020.702(a)(3)) (some formatting altered). Appellants contend that “person”

as used in Section 6020.702 of the HSCA should be interpreted in conjunction

with Section 6020.1115, which provides a private cause of action for any

person who has “experienced or [are] threatened with personal injury or

property damage as a result of a release of a hazardous substance.” Id. at

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22-23, 28-31; cf. id. at 5, 13, 15 (characterizing Appellees’ cause of action

as arising under Section 6020.702 of the HSCA).

Further, Appellants argue that Appellees’ attorneys cannot bring a

citizen suit in their own right under Section 6020.1115(a) of the HSCA because

the attorneys did not suffer any personal injury or property damage. Id. at

24. Appellants contend that “allowing an aggrieved person to recover a

monetary remedy based on the voluntary incurrence of costs by a

nonaggrieved, non-party attorney—where that non-party concededly could

not bring a private HSCA suit in the first place—turns the law upside down.”

Id. (emphasis omitted). Appellants assert that if “the Legislature intended to

authorize the recovery of costs incurred as a result of a statutory violation by

a party without standing to seek a remedy for that violation, it would have

said so—and expressly.” Id. at 25. Therefore, Appellants claim that persons

authorized to sue under Section 6020.1115 of the HSCA can only recover their

own costs of response under Section 6020.702 and cannot recover costs paid

for by a third party.

Appellants additionally argue that because the HSCA is modeled after

federal Comprehensive Environmental Response, Compensation, and Liability

Act of 19806 (CERCLA), this Court should look at cases interpreting the

____________________________________________

6 42 U.S.C. §§ 9601-9675.

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CERCLA. Id. at 25-26.7 Appellants assert that the cost-recovery provision of

the CERCLA, 42 U.S.C. § 9607(a)(4)(B), is virtually identical to Section

6020.702 of the HSCA. Id. Appellants discuss several federal cases

concluding that Section 9607 of the CERCLA does not permit recovery of costs

incurred by third parties when the plaintiff does not have an obligation to

reimburse those third parties. Id. at 26-28; see also Appellants’ Reply Brief

at 11-13. Therefore, Appellants conclude that the trial court erred in holding

that “costs of response incurred by any other person[,]” as used in Section

6020.702 of the HSCA, includes the costs of environmental sampling paid for

by third parties, i.e., Appellees’ attorneys.

The rules of statutory construction are well-settled:

The Statutory Construction Act, 1 Pa.C.S. §§ 1901-1991, sets

forth principles of statutory construction to guide a court’s efforts

with respect to statutory interpretation. In so doing, however, the

Act expressly limits the use of its construction principles. The

purpose of statutory interpretation is to ascertain the General

Assembly’s intent and to give it effect. 1 Pa.C.S. § 1921(a). In

discerning that intent, courts first look to the language of the

statute itself. If the language of the statute clearly and

unambiguously sets forth the legislative intent, it is the duty of

the court to apply that intent and not look beyond the statutory

language to ascertain its meaning. See 1 Pa.C.S. § 1921(b)

(“When the words of a statute are clear and free from all

ambiguity, the letter of it is not to be disregarded under the

pretext of pursuing its spirit.”). Courts may apply the rules of

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7 In the statement of the case portion of their brief, Appellants include an

overview of the history of the HSCA and assert that it is modeled after the

CERCLA. Appellants’ Brief at 6. Appellants also cite several cases interpreting

the HSCA, the CERCLA, or both. Id. at 6-11. Our Rules of Appellate Procedure

strictly prohibit argument in a statement of the case. See Pa.R.A.P. 2117(b)

(stating “[t]he statement of the case shall not contain any argument”).

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statutory construction only when the statutory language is not

explicit or is ambiguous. 1 Pa.C.S. § 1921(c).

. . . We must read all sections of a statute “together and in

conjunction with each other,” construing them “with reference to

the entire statute.” 1 Pa.C.S. § 1922(2). When construing one

section of a statute, courts must read that section not by itself,

but with reference to, and in light of, the other sections. Statutory

language must be read in context, together and in conjunction

with the remaining statutory language.

Every statute shall be construed, if possible, to give effect to all

its provisions. We presume the legislature did not intend a result

that is absurd, impossible, or unreasonable, and that it intends

the entire statute to be effective and certain. When evaluating

the interplay of several statutory provisions, we recognize that

statutes that relate to the same class of persons are in pari

materia and should be construed together, if possible, as one

statute.

Also, when interpreting a statute we must listen attentively to

what the statute says, but also to what it does not say.

Retina Assocs. of Greater Phila., Ltd. v. Retinovitreous Assocs., Ltd.,

176 A.3d 263, 270 (Pa. Super. 2017) (some citations omitted and some

formatting altered).

Our Supreme Court has explained:

In 1988, the General Assembly enacted HSCA based, in part, on

a finding that hazardous substances released into the environment

pose a substantial threat to the health and welfare of the residents

of the Commonwealth. 35 P.S. § 6020.102(2). The General

Assembly decided that traditional legal remedies were not

adequate to prevent the release of hazardous substances into the

environment. 35 P.S. § 6020.102(5). It found that

“[e]xtraordinary enforcement remedies and procedures are

necessary and appropriate to encourage responsible persons to

clean up hazardous sites and to deter persons in possession of

hazardous substances from careless or haphazard management.”

35 P.S. § 6020.102(9). Therefore, it created HSCA, which is an

“independent site cleanup program” designed to “promptly and

comprehensively address the problem of hazardous substance

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releases in this Commonwealth, whether or not these sites qualify

for cleanup under [CERCLA].” 35 P.S. 6020.102(8).

Redland Soccer Club v. Department of Army, 696 A.2d 137, 141 (Pa.

1997) (Redland).

The HSCA states that “[i]t shall be unlawful for a person to . . . [c]ause

or allow a release of a hazardous substance.” 35 P.S. § 6020.1108(1). For

the purposes of the HSCA, “release” includes “pumping, . . . emitting,

emptying, . . . escaping, . . . discharging, dumping or disposal into the

environment.” 35 P.S. § 6020.103. Further, the HSCA defines “response”, in

relevant part, as:

Action taken in the event of a release or threatened release of a

hazardous substance or a contaminant into the environment to

study, assess, prevent, minimize or eliminate the release in order

to protect the present or future public health, safety or welfare or

the environment. The term includes, but is not limited to:

* * *

(2) Actions at or near the location of the release, such as

studies; health assessments; storage; confinement; . . .

cleanup or removal of released hazardous substances,

contaminants or contaminated materials; . . . and monitoring

and maintenance reasonably required to assure that these

actions protect the public health, safety, and welfare and the

environment.

* * *

(5) Other actions necessary to assess, prevent, minimize or

mitigate damage to the public health, safety or welfare or the

environment which may otherwise result from a release or

threatened release of hazardous substances or contaminants.

(6) Investigation, enforcement, abatement of nuisances, and

oversight and administrative activities related to interim or

remedial response enforcement, abatement of nuisances, and

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oversight and administrative activities related to interim or

remedial response.

Id.

The HSCA defines “person”, as “[a]n individual, firm, corporation,

association, partnership, consortium, joint venture, commercial entity,

authority, interstate body or other legal entity which is recognized by law as

the subject of rights and duties.” Id.

The HSCA authorizes citizen suits as follows:

§ 6020.1115. Citizen suits

(a) General rule.—A person who has experienced or is

threatened with personal injury or property damage as a result of

a release of a hazardous substance may file a civil action against

any person to prevent or abate a violation of this act or of any

order, regulation, standard or approval issued under this act.

(b) Jurisdiction.—The courts of common pleas shall have

jurisdiction over any actions authorized under this section. . . .

The court may grant any equitable relief; . . . and may award

litigation costs, including reasonable attorney and witness fees, to

the prevailing or substantially prevailing party whenever the court

determines such an award is appropriate.

35 P.S. § 6020.1115(a)-(b).

The HSCA provides the following remedies:

(a) General rule.—A person who is responsible for a release or

threatened release of a hazardous substance from a site . . . is

strictly liable for the following response costs and damages which

result from the release or threatened release or to which the

release or threatened release significantly contributes:

(1) Costs of interim response which are reasonable in light of

the information available to the [Department of Environmental

Protection (DEP)] at the time the interim response action was

taken.

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(2) Reasonable and necessary or appropriate costs of remedial

response incurred by the United States, the Commonwealth or

a political subdivision.

(3) Other reasonable and necessary or appropriate costs

of response incurred by any other person.

(4) Damages for injury to, destruction of or loss of natural

resources within this Commonwealth or belonging to, managed

by, controlled by or appertaining to the United States, the

Commonwealth or a political subdivision. This paragraph

includes the reasonable costs of assessing injury, destruction

or loss resulting from such a release.

(5) The cost of a health assessment or health effects

study.

35 P.S. § 6020.702(a) (emphases added).

In Redland, the Army disposed of various kinds of waste at a landfill at

the New Cumberland Army Depot from “1917 until sometime in the 1950s[.]”

Redland, 696 A.2d at 139. When the Army closed the landfill, it covered the

area with “a layer of soil and coal ashes.” Id. The Army subsequently sold

the land on which the depot was located to the surrounding township. Id.

The township converted that land into a park, which included soccer fields.

Id. In 1987, the Army conducted environmental testing in the park, which

revealed the presence of various toxic materials. Id. A group of plaintiffs

composed of people who used the soccer fields, worked in the park, and lived

near the park sued the Army in state court in 1992, and pled “a cause of action

under HSCA, seeking, among other things, a medical monitoring trust fund

and attorney fees.” Id. at 140; see also id. at 142 (stating that the plaintiffs

“requested equitable relief under section 6020.1115(b) in the form of a

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medical monitoring trust fund, which they claim is a cognizable response cost

under section 6020.702(a)”).

With respect to the plaintiffs’ claim for medical monitoring damages, the

Redland Court held:

Although section 6020.702(a) does not explicitly use the words

“medical monitoring trust fund”, we believe that the terms “costs

of response”, “health assessment” and “health effects study” in

section 6020.702(a) encompass such a remedy. Our

interpretation of these terms is consistent with the General

Assembly’s clearly stated intent “to provide new remedies to

protect the citizens of this Commonwealth against the release of

hazardous substances . . . .” 35 P.S. § 6020.102(5).

Id. at 142 (footnote omitted). The Court further noted that “[m]edical

surveillance damages promote early diagnosis and treatment of disease or

illness resulting from exposure to toxic substances caused by a tortfeasor’s

negligence. Allowing recovery for such expenses avoids the potential injustice

of forcing an economically disadvantaged person to pay for expensive

diagnostic examinations necessitated by another’s negligence.” Id. at 145

(quoting Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 976 (Utah

1993)) (internal citations omitted).

Additionally, the Army argued that the trial court erred in awarding

attorney fees to the plaintiffs because the plaintiffs sued under Section

6020.702 of the HSCA, which does not authorize attorney fees. Id. at 147.

The Army further contended that “because CERCLA does not authorize

attorney fees for a private plaintiff seeking response costs, [the Supreme

Court] should interpret HSCA to impose a similar limitation.” Id. (citation

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omitted). Our Supreme Court explained a citizen suit under the HSCA as

follows:

Section 6020.1115 is the only section of HSCA that authorizes

citizen suits, and thus, it is the only section under which the

Redland Plaintiffs could have brought suit. Section 6020.702

specifies various categories of relief for which a defendant may be

liable under HSCA. A plaintiff cannot bring a citizen suit under

section 6020.702. Instead, a plaintiff must bring a citizen suit

under section 6020.1115 and may seek the relief available to

private plaintiffs included in section 6020.702, . . . .

Id. at 147.8

The Redland Court also rejected the Army’s argument that the Court

should interpret the HSCA as only providing remedies that are available under

the CERCLA, holding:

When the General Assembly enacted HSCA, it was fully aware of

the existence of CERCLA, but decided that an “independent site

cleanup program” was necessary to protect the public health and

environment. 35 P.S. § 6020.102(8). The General Assembly also

decided that “new remedies” were necessary to protect the

citizens of this Commonwealth from the release of hazardous

substances. 35 P.S. § 6020.102(5). Therefore, we are not

persuaded that the unavailability of a remedy under CERCLA

should control whether the same remedy is available under HSCA.

Id. at 147-48 (footnote omitted).

Here, the trial court explained:

“Response costs” are defined in HSCA as an “[a]ction taken in the

event of a release or threatened release of a hazardous substance

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8 The Court also noted that Section 6020.1115(b) expressly authorizes a court

to award attorney fees to the prevailing party if the court determines that such

an award is appropriate. Redland, 696 A.2d at 147.

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or a contaminant into the environment to study, assess, prevent;

minimize or eliminate the release in order to protect the present

or future public health, safety or welfare or the environment.”

35 P.S. § 6020.103 (emphasis added) [(defining “response”)].

Further, in reading section [6020.]702, the language states “[a]

person who is responsible for a release or threatened release . . .

is strictly liable for [reasonable and necessary response costs

incurred by any other person] which result from the release or

threatened release.” [35 P.S.] § 6020.702(a).

The court concludes that the investigatory expenses already

incurred by [Appellees’] attorneys qualify under 35 P.S. §§

6020.103 & 6020.702(3). At argument, [Appellees’] attorneys

acknowledged that [Appellees] have not personally incurred any

costs: the testing of the properties for hazardous materials has

been borne by counsel thus far because [Appellees] do not have

the financial means to incur the costs on their own. . . .

* * *

[Appellees’] attorneys’ firms, who are working on a contingency

basis for [Appellees], would seem to fit into the definition of a

person. Neither 35 P.S. § 6020.103 nor 35 P.S. § 6020.702(a)(3)

state that the person aggrieved or person harmed must personally

incur the expense. The court did not find any state case requiring

that a litigant personally incur an expense rather than their legal

representative on their behalf. Additionally, testing costs paid by

counsel are typical recoverable costs (“study”, “assess”) under

section 6020.103 of HSCA. Therefore, the court concludes that

the testing by CORE Environmental Services, [i.e.,] dust wipes

and soil sampling, for contaminants on the [Appellees’] properties

prior to July 7, 2017, when the complaint was filed are a

“response” cost as defined by HSCA.

The court finds that it would be inequitable to require that the

persons harmed incur the expense if they personally are unable.

A mandate such as this would effectively bar persons from taking

advantage of HSCA if they could not afford to cover the response

costs. It is beyond cavil that testing of hazardous waste can be

an expensive undertaking, especially in a class action context such

as this. Imposing such a mandate would undermine the purpose

of HSCA as well, as it would hinder the remediation efforts the

HSCA seeks to promote. “[W]e should avoid construing a statute

in such a way as would lead to an absurd result.” Holland v.

Marcy, 883 A.2d 449, 456 (Pa. 2005). This court believes that

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forcing individual persons to personally bear costs they cannot

afford themselves in order to hold responsible parties accountable

and remediate hazardous environments would be an absurd result

contrary to the spirit of HSCA.

Trial Ct. Op. & Order, 12/13/22, at 6-8 (footnotes and some citations omitted).

Based on our review of the record, we discern no error of law or abuse

of discretion by the trial court. See Hildebrand, 165 A.3d at 971.

Specifically, we agree with the trial court that the cost of environmental testing

is a “response cost” within the meaning of the HSCA. See 35 P.S. §§

6020.103, 6020.702(a)(3). We also agree with the trial court that “any other

person” as used in Section 6020.702 of the HSCA is not limited to those

persons who may bring a citizen suit under Section 6020.1115, which consist

of any “person who has experienced or is threatened with personal injury or

property damage as a result of a release of a hazardous substance[,]” because

there is nothing in the text of Section 6020.702 to indicate that the Legislature

intended to limit the remedy in that manner. Compare 35 P.S. §

6020.702(a)(3) with id. at § 6020.1115. Allowing Appellees to recover

damages related to environmental testing, the costs of which have so far been

borne by Appellees’ attorneys, is consistent with our Supreme Court’s decision

in Redland that medical monitoring damages could be awarded under the

HSCA. See Redland, 696 A.2d at 145 (observing that allowing the plaintiffs

to recover the costs of medical monitoring “avoids the potential injustice of

forcing an economically disadvantaged person to pay for expensive diagnostic

examinations necessitated by another’s negligence” (citation omitted)).

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Additionally, we are persuaded by the Redland Court’s conclusion in its

precedential decision that the absence of a remedy under the CERCLA is not

dispositive as to whether that remedy is available under the HSCA. See id.

at 147-48. Therefore, to the extent that Appellants rely on cases interpreting

and applying the CERCLA, they are not controlling with respect to this issue.

For these reasons, we conclude that Appellants are not entitled to relief on

this claim.

Equitable Relief

In their second issue, Appellants argue that the trial court erred in

denying their motion for summary judgment with respect to Appellees’ claim

for the costs of future testing and remediation of the affected properties.

Appellants’ Brief at 33-46. Specifically, Appellants contend that Sections

6020.702 and 6020.1115 of the HSCA do not authorize relief in the form of

“un-incurred future costs.” Id. at 35-36. Further, Appellants claim that under

Section 6020.1115 of the HSCA, a court may only grant equitable relief to

prevent or abate “ongoing or future releases of hazardous substances, not

[to] compensate[e] for past, completed releases.” Id. at 33. Appellants

assert that the HSCA gives the DEP exclusive authority to issue orders and

seek injunctions commanding a party responsible for a release to take a

response action. Id. at 36 (citing 35 P.S. §§ 6020.505(c), 6020.505(d)(1),

6020.1102)). Therefore, Appellants argue that Appellees’ request for an order

directing Appellants to pay for future testing for and remediation of lead and

zinc contamination exceeds the scope of equitable relief authorized for a

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citizen suit under the HSCA. Id. at 33-34, 36-37; see also Appellants’ Reply

Brief at 14-24 (arguing that the HSCA does not authorize “test-then-clean”

relief). Appellants also contend that Appellees’ requested relief is not

equitable in nature because it is a request for monetary relief. Appellants’

Brief at 37-38. Appellants further claim that Redland is distinguishable

because in that case, our Supreme Court held that Section 6020.702(a)(5) of

the HSCA authorized an award of the costs of medical monitoring as “the cost

of a health assessment or health effects study[,]” but Appellees are requesting

the costs of future property testing. Id. at 39 (citing Redland, 696 A.2d at

142). Appellants also note that federal courts have concluded that the CERCLA

does not authorize private parties to seek injunctive relief related to

environmental cleanup. Id. at 39-40.

As stated above, in Redland, our Supreme Court concluded that

although 6020.702(a) of the HSCA did not explicitly refer to a “medical

monitoring trust fund,” that remedy was encompassed by the terms “costs of

response,” “health assessment,” and “health effects study” used in Section

6020.702(a). Redland, 696 A.2d at 142. The Court further noted:

A claim for a medical monitoring trust fund is significantly different

from a claim for a lump sum award of damages. A trust fund

compensates the plaintiff for only the monitoring costs actually

incurred. In contrast, a lump sum award of damages is exactly

that, a monetary award that the plaintiff can spend as he or she

sees fit. . . .

* * *

We, too, believe that a medical monitoring trust fund is a more

appropriate remedy than lump sum damages in mass exposure

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toxic tort cases. However, because the Redland Plaintiffs are

seeking only a medical monitoring trust fund, we offer no opinion

concerning whether lump sum damages are recoverable under

HSCA.

Id. at 142 n.6 (citations omitted). Further, the purpose of medical monitoring

damages is to monitor against “future illness beyond that which is

recommended for everyone.” Id. at 144 (citation omitted); accord Ford ex

rel. Pringle v. Philadelphia Hous. Auth., 848 A.2d 1038, 1062-63 (Pa.

Cmwlth. 2004) (affirming the award of damages for medical monitoring in a

negligence action where a medical expert opined that the plaintiff was a high

risk of developing future medical consequences from lead exposure).9

Here, the trial court explained:

Turning next to [Appellants’] second argument in favor of granting

summary judgment on [Appellees’] HSCA claims, [Appellants]

argue[] that the court has no authority to grant the [Appellees’]

requested relief in the form of requiring [Appellants] to pay for

sampling of the properties along with the remediation. The court

again disagrees.

This court first finds support from the Pennsylvania Supreme

Court in Redland . . . .

* * *

. . . [T]he Court discussed how a claim for medical monitoring is

very different from for lump sum damages. “A trust fund

compensates the plaintiff for only the monitoring costs actually

incurred. In contrast, a lump sum award of damages is exactly

that, a monetary award that the plaintiff can spend as he or she

sees fit.” [Redland, 696 A.2d at 142 n.6].

____________________________________________

9 Although decisions of the Commonwealth Court are not binding on this Court,

they may provide persuasive authority. See Maryland Cas. Co. v. Odyssey

Contracting Corp., 894 A.2d 750, 756 n.2 (Pa. Super. 2006).

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In our view, the use of a court-supervised fund to administer

medical-surveillance payments in mass exposure cases . . .

is a highly appropriate exercise of the Court’s equitable

powers. . . . Such a mechanism offers significant

advantages over a lump-sum verdict. . . . [A] fund would

serve to limit the liability of defendants to the amount

of expenses actually incurred. A lump-sum verdict

attempts to estimate future expenses, but cannot predict

the amounts that actually will be expended for medical

purposes. Although conventional damage awards do not

restrict plaintiffs in the use of money paid as compensatory

damages, mass-exposure toxic-tort cases involve public

interests not present in conventional tort litigation.

Id. [at 142-43 n.6] (emphasis added). In other words, expenses

actually “incurred” refers to that which is specifically needed to

remedy a particular matter or to address a particular purpose, and

not a descriptor of issuing awards for only expenses incurred as

of the day of litigation and forbearing any future expenses directly

related to the harm. . . . Under HSCA, the legislature authorized

the recovery of “response” costs, which are specifically defined

“remedial” measures.

* * *

This court finds [Appellees’] requested relief is cognizable under

HSCA and [Appellants’] motion for summary judgment must be

denied. Within HSCA, the definition of “response” includes “action

taken in the event of a release . . . to study [and] assess . . . the

release in order to protect the present or future public health,

safety or welfare of the environment.” [35 P.S.] § 6020.103.

More specifically, “response” includes “actions at or near the

location of the release, such as studies . . .” and “[o]ther actions

necessary to assess . . . damage to the public health, safety or

welfare or the environment which may otherwise result from a

release . . . of hazardous substances or contaminants.” Id. at (2)

& (5). Additionally, the “response costs” must be “reasonable and

necessary or appropriate costs.” § 6020.702(a)(3). . . .

* * *

Further, this court believes that the extent of the testing or the

defining of its parameters can be established through expert

witness testimony without speculation. See [Redland, 696 A.2d]

at 145.

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* * *

Therefore, the court believes [Appellees’] requested equitable

relief is cognizable and fair. [Appellants] caused the release of

hazardous substances into the Donora area for a period of 42

years. Under § 6020.702(a), responsible parties are strictly liable

for “reasonable and necessary or appropriate” costs to remediate

the harm. A basic, fundamental step in assessing what

remediation needs to occur is testing the properties to determine

whether and to what extent they need to be remediated. The

court believes the expenses for testing are recoverable by

[Appellees] regardless of whether it is an upfront payment in the

form of a trust fund like vehicle or reimbursement from the

[Appellants].

Trial Ct. Op. & Order, 12/13/22, at 8-9, 11-12, 14 (footnotes and some

citations omitted).

Based on our review of the record, we discern no error of law or abuse

of discretion by the trial court. See Hildebrand, 165 A.3d at 971.

Specifically, we agree with the trial court that the statutory remedy of

“reasonable and necessary or appropriate costs of response incurred by any

other person” does not restrict a plaintiff from recovering future response

costs. In Redland, our Supreme Court upheld an award of medical monitoring

damages under the HSCA, which would go towards future medical testing of

the plaintiffs who had been exposed to the hazardous substances that the

Army had buried on the site where a park was later built. See Redland, 696

A.2d at 142-47.

Further, we reject Appellants’ argument that Section 6020.1115 only

permits equitable relief for ongoing or future releases. Nothing in the text of

Section 6020.1115 indicates that an action to “abate a violation of” the HSCA

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only applies to ongoing releases. To the contrary, that section contemplates

citizen suits for completed releases because it refers to “[a] person who has

experienced or is threatened with personal injury or property damage as a

result of a release of a hazardous substance . . . .” See 35 P.S. §

6020.1115(a) (emphasis added).

Additionally, Appellants’ interpretation conflicts with existing case law.

In Redland, the Army ceased dumping hazardous waste on the future site of

the park in the 1950s and subsequently buried that waste. See Redland,

696 A.2d at 139. Our Supreme Court held that medical monitoring damages

are an equitable remedy under the HSCA. See id. at 147. At no point did the

Redland Court opine that that the plaintiffs could not bring a citizen suit under

Section 6020.1115(a) of the HSCA because the Army’s release of hazardous

substances had ended approximately forty years before the litigation began.

For these same reasons, we reject Appellants’ argument that the HSCA

provides the DEP with exclusive power to seek injunctive relief for past

violations of the HSCA as inconsistent with Redland. Lastly, as previously

stated, to the extent that Appellants rely on cases applying the CERCLA, they

are not controlling here. For these reasons, we conclude that Appellants are

not entitled to relief on this issue.10

____________________________________________

10 Additionally, Appellants argue that the trial court’s order cannot be affirmed

under the Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-7541. Appellants’

Brief at 41-46. However, Appellants did not include their claim that the trial

court’s order violates the Declaratory Judgments Act in the statement of

(Footnote Continued Next Page)

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Trespass

In their third issue, Appellants argue that the trial court erred by denying

Appellants’ motion for summary judgment on Appellees’ trespass count.

Appellants’ Brief at 46-54. Specifically, Appellants contend that “there is no

basis in existing Pennsylvania law to find that the airborne intrusion of such

invisible particulates constitutes a trespass—as opposed to a nuisance.” Id.

at 46. Appellants claim that “Pennsylvania courts have specifically considered

dust and similar invisible airborne particulates to fall within the realm of

nuisance claims, not trespass.” Id. at 47 (citing Karpiak v. Russo, 676 A.2d

270, 274 (Pa. Super. 1996); Harford Penn-Cann Serv., Inc. v. Zymblosky,

549 A.2d 208, 209 (Pa. Super. 1988)). Appellants argue that this is because

a claim of nuisance arises from interference with “another’s interest in the

private use and enjoyment of land”, while “liability for trespass arises where

there is interference with one’s ‘possession’ of land[.]” Id. (citations omitted).

Appellants contend that the trial court erred by relying on Jones v. Wagner,

624 A.2d 166 (Pa. Super. 1993) because Jones discussed tangible airborne

intrusions such as tree branches, not invisible airborne particulates. Id. at

49. Appellants note that other jurisdictions have held that the intrusion of

dust or invisible particles onto another’s property give rise to a claim for

____________________________________________

questions involved in their appellate brief. Therefore, it is waived. See

Pa.R.A.P. 2116(a) (stating that “[n]o question will be considered unless it is

stated in the statement of questions involved or is fairly suggested thereby”).

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nuisance, not trespass. Id. at 48-49 (citing, inter alia, Adams v. Cleveland-

Cliffs Iron Co., 602 N.W.2d 215 (Mich. Ct. App. 1999)).

Appellants alternatively suggest that if this Court concludes that the

intrusion of invisible particulates gives rise to a cause of action for trespass,

that this Court should “recognize the prevailing rule in other jurisdictions that

requires proof of substantial harm as an element of an airborne-intrusion

trespass claim.” Id. at 50-53 (citing, inter alia, Brown v. Whirlpool Corp.,

996 F.Supp.2d 623, 641 (N.D. Ohio 2014)) (footnote omitted). Appellants

conclude that under this standard, Appellees are not entitled to relief because

they are requesting an order for Appellants to test their properties for the

presence of lead, and therefore, have not established an intrusion. Id. at 53.

Appellees respond that this Court “should side with the overwhelming

majority of other jurisdictions and the earlier unpublished decision of this

Court in recognizing that the intrusion of particulates and other invisible

substances can constitute a trespass.” Appellees’ Brief at 50 (citing Oliver v.

Gasdik, 1390 EDA 2019, 2020 WL 1903952 (Pa. Super. April 17, 2020)

(unpublished mem.)).11 Appellees further argue that “[t]he majority of courts

that have weighed in on this specific issue have found in favor of allowing

trespass claims for intrusions by invisible particles.” Id. at 53-56 (citing, inter

alia, Borland v. Sanders Lead Co., Inc., 369 So.2d 523, 529-30 (Ala.

____________________________________________

11 See Pa.R.A.P. 126(b) (providing that unpublished non-precedential

decisions of the Superior Court filed after May 1, 2019, may be cited for their

persuasive value).

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1979)). Appellees note that the trial court did not address whether their

trespass claim requires Appellees to demonstrate substantial harm because at

the time the trial court denied Appellants’ motion for summary judgment, the

parties had not exchanged their expert reports. Id. at 57.

Here the trial court explained:

As for [Appellants’] claim that [Appellees] have not submitted any

evidence of the levels of lead in the soil and dust on their

properties that would support a trespass claim for compensatory

damages, the discovery period has not concluded. [Appellees’]

experts have not yet submitted their reports. Additionally, this

court finds, as noted above, that there is support for having

[Appellants] pay for sample testing of properties pursuant to the

HSCA claim. Therefore, this particular issue is not ripe for

disposition.

Trial Ct. Op. & Order, 12/13/22, at 17 n.19.12

Based on our review of the record, we discern no error of law or abuse

of discretion by the trial court. See Hildebrand, 165 A.3d at 971. As stated

above, Appellants filed their motion for summary judgment on Appellees’

trespass claim prior to the discovery deadline for Appellees to produce their

expert reports. See Trial Ct. Op. & Order, 12/13/22, at 17 n.19; see also

R.R. at 294a, 297a-99a, 306a-13a (Appellees’ response to Appellants’ motion

for summary judgment on the trespass claim). Therefore, we agree with the

trial court’s conclusion that Appellants’ motion for summary judgment on

____________________________________________

12 The trial court also concluded that the airborne intrusion of invisible

particulates could constitute a trespass. See Trial Ct. Op. & Order, 12/13/22,

at 15-17.

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Appellees’ trespass claim was premature.13 See Wolloch, 815 A.2d at 596;

Pa.R.C.P. 1035.2(2). Therefore, Appellants are not entitled to relief on this

issue.

For the foregoing reasons, we affirm the trial court’s order denying

Appellants’ motion for summary judgment.

Order affirmed. Jurisdiction relinquished.

DATE: 10/01/2024

____________________________________________

13 Because we conclude that the trial court’s order properly denied Appellants’

motion for summary judgment regarding trespass as premature, we decline

to address, at this time, whether Pennsylvania law recognizes a cause of action

for trespass for the airborne intrusion of invisible particulates. See Lynn, 70

A.3d at 823 (explaining that this Court may affirm a trial court’s ruling on any

basis supported by the record). Further, to the extent that Appellees suggest

that their expert reports, which were produced subsequent to the trial court’s

December 13, 2022 order, create a genuine issue of material fact that

precludes granting summary judgment, we will not consider that argument

because those reports were not part of the record at the time that the trial

court made its decision.

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