# FRANCI v. CHAMBERS DEVELOPMENT COMPANY, INC.

> District Court, W.D. Pennsylvania · December 16, 2024

URL: https://www.frixlaw.com/law-library/cases/10761251

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** December 16, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10761251

## How later opinions describe it (automated extraction)

- discussing Pennsylvania’s “strong, oft-stated public policy of barring recovery for economic losses sustained as a result of another’s tortious conduct” including liability for private nuisance
- stating that the economic loss doctrine “is not limited to products liability” actions
- rejecting the contention that plaintiffs could recover under the law of private nuisance for purely economic harm
- explaining that, under Pennsylvania tort law, “the law of public nuisance comprehends threats to the public at large, not specific persons”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANNIA

FRANK FRANCI and RANDY
BUMBAUGH, on behalf of themselves and
all others similarly situated,
Plaintiffs, Civil Action No. 2:24-cv-800
v. Hon. William S. Stickman IV
CHAMBERS DEVELOPMENT
COMPANY, INC.,
Defendant.

MEMORANDUM OPINION
WILLIAM S. STICKMAN IV, United States District Judge
Plaintiffs, Frank Franci (“Franci”) and Randy Bumbaugh (“Bumbaugh”) (collectively
“Plaintiffs”), on behalf of themselves and others similarly situated (“Class Members’), brought
this action against Defendant Chambers Development Company, Inc. (“Chambers”) in the Court
of Common Pleas of Allegheny County, Pennsylvania. (ECF No. 1-3). Chambers removed the
action to this Court. (Ud). Plaintiffs allege at Count I that Chambers intentionally, knowingly,
recklessly, and/or negligently created a private nuisance that substantially and unreasonably
interfered with Plaintiffs’ property. Ud. 56-65). At Count II, Plaintiffs allege that Chambers’
substantial and unreasonable interference with Plaintiffs’ use and enjoyment of their property
“arises from a public nuisance, from which the Plaintiffs have uniquely suffered.” Ud. {] 66-81).
At Count III, Plaintiffs allege that Chambers negligently allowed conditions to exist which caused
noxious odors to physically invade Plaintiffs’ properties. Ud. J] 82-88). Chambers filed a motion
to dismiss (ECF No. 5) and supporting brief (ECF No. 6) arguing that Plaintiffs’ complaint must

be dismissed for failure to state a claim upon which relief may be granted. (ECF No. 5, p. 1). In
the alternative, Chambers moves to dismiss Plaintiffs’ claims for punitive damages and strike
Plaintiffs’ class allegations. (/d.). Plaintiffs filed a brief opposing Chambers’ motion to dismiss
and strike. (ECF No. 19). Chambers filed a reply brief, (ECF No. 20), and notice of supplemental
authority, (ECF No. 21). For the reasons set forth below, the Court will deny Chambers’ motion
in all respects.
i. FACTUAL BACKGROUND
Chambers is a Delaware corporation which owns and operates a solid waste landfill
(“Landfill”) located at 600 Thomas Street, Monroeville, Pennsylvania. (ECF No. 1-3, 5).
Plaintiffs are individuals who own and reside on property in Monroeville, Pennsylvania. (Ud. □ 3-
4). They brought this action individually and on behalf of “[a]ll owners/occupants and renters of
residential property within one (1) mile of the Landfill property boundary.” (/d. { 44). There are
around 2,700 residences within the class area. (/d. { 46). Chambers is a Delaware corporation
which owns and operates the Landfill. Ud. J 5).
The Landfill accepts, processes, and stores substantial quantities of waste materials
including, but not limited to: biosolids, municipal solid waste, construction and demolition debris,
auto shredder fluff, and sandblast media. (/d. § 15). Plaintiffs allege that the materials deposited
into the Landfill decompose and generate byproducts, including leachate and landfill gas. Ud.
16). These byproducts can be particularly odorous and offensive when not managed properly,
giving off a “rotten egg” smell. (Ud). Plaintiffs contend that landfills do not inherently emit
noxious odors perceptible in the surrounding community. (Ud § 17). Rather, “[a] properly
designed, operated, and maintained landfill will adequately capture, process, and remove leachate
and landfill gas to prevent odors from escaping into the ambient air as fugitive emissions.” (/d.).

Plaintiffs allege that Chambers failed to use adequate odor mitigation processes and
technologies to control emissions from the Landfill. Ud. 426). As a result, noxious odors invaded
Plaintiffs’ and Class Members’ properties. (/d.). Plaintiffs allege that Chambers’ failure to prevent
off-site emissions include, but are not limited to:
a) Failing to install, maintain, and operate an adequate landfill gas collection
system;
b) Insufficient monitoring of the Landfill;
c) Using inadequate cover and cover practices;
d) Inadequate collection, management, and disposal of leachate;
e) Failing to purchase, possess, and maintain appropriate equipment;
f) Improper and/or excessive processing of construction and demolition waste;
g) Engaging in excavation without adequate erosion or sedimentation controls;
and
h) [Failing] to use other odor mitigation and control techniques that are available.
(id. § 27). As a result, Plaintiffs allege that “Plaintiffs’ property[,] including Plaintiffs’
neighborhoods, residences[,] and yards have been and continue to be physically invaded by
noxious odors, pollutants, and air contaminants.” (Ud. ¥ 12).
Plaintiffs allege that citizens in the nearby residential area have frequently complained
about noxious odors emanating from the Landfill. Ud. 28). Specifically, Plaintiffs allege that
numerous residents have filed complaints with the Pennsylvania Department of Environmental
Protection (“PDEP”) concerning the odors. (/d. 34). The Pitcairn Fire Department has been
called to the area several times due to gas-like odors emitted by the Landfill into the community.
Betsy Stevick, the mayor of the Borough of Pitcairn, issued a formal letter to Pennsylvania
Governor Joshua Shapiro requesting an investigation into the Landfill and its odor emissions. (d.).
Further, Franci stated that “he often experiences a lack of sleep from being continuously woken
up by the odors emanating from [the] Landfill.” Ud. 431). Bumbaugh reported that the “odor

so bad it makes the inside of your house smell.” (Ud. § 32). Plaintiffs’ complaint includes several
allegations made by Class Members regarding the odor. Ud. § 33).

Plaintiffs also contend that the noxious odors from the Landfill are offensive to them and
Class Members and would be offensive to reasonable people of ordinary health and sensibilities.
(Id. | 36). The odors have “caused property damage” and “substantially interfered with the
abilities of [Plaintiffs] and [Class Members] to reasonably use and enjoy their homes and
properties.” (/d. § 37). Further, the invasion of Plaintiffs’ and Class Members’ properties by the
noxious odors has reduced the value of those properties. (/d. § 38). Members of the public were
also allegedly harmed by the noxious odors that emitted from the Landfill into public areas. (Ud.
q 40).
II. STANDARD OF REVIEW
A motion to dismiss filed under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests the
legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A plaintiff
must allege sufficient facts that, if accepted as true, state a claim for relief plausible on its face.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A court must accept all well-pleaded factual allegations as true and view them
in the light most favorable to a plaintiff. See Doe v. Princeton Univ., 30 F 4th 335, 340 (3d Cir.
2022); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Although a court
must accept the allegations in the complaint as true, it is “not compelled to accept unsupported
conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.”
Baraka v. McGreevey, 481 F.3d 187, 195 Gd Cir. 2007) (citations omitted).
The “plausibility” standard required for a complaint to survive a motion to dismiss is not
akin to a “probability” requirement but asks for more than sheer “possibility.” J¢bal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 556). In other words, the complaint’s factual allegations must
be enough to raise a right to relief above the speculative level, on the assumption that all the

allegations are true even if doubtful in fact. Twombly, 550 U.S. at 555. Facial plausibility is
present when a plaintiff pleads factual content that allows the court to draw the reasonable
inference that a defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Even if the
complaint’s well-pleaded facts lead to a plausible inference, that inference alone will not entitle a
plaintiff to relief. Jd. at 682. The complaint must support the inference with facts to plausibly
justify that inferential leap. Jd.
Til. ANALYSIS
A. Sufficiency of Plaintiffs’ Pleadings
i. Private Nuisance
Chambers argues that Plaintiffs’ private nuisance claim (Count J) fails because Plaintiffs
failed to plead that (1) Chambers’ invasion caused significant harm, (2) Chambers’ actions were
either intentional and unreasonable or negligent and reckless as required, and (3) their property
interests were encroached upon against their will. (ECF No. 6, pp. 7-8). Plaintiffs counter by
arguing that (1) whether they suffered significant harm is a question for the jury — not the Court,
(2) they plausibly plead that Chambers acted with the requisite state of mind, and (3) they
adequately alleged encroachment of Plaintiffs’ property interests. (ECF No. 19, pp. 12-14).
Chambers responds that Plaintiffs improperly relied on outdated case law to support their
contention that significant interference is a question for the jury, and Plaintiffs did not plead
significant harm or tangible damage to their properties. (ECF No. 20, pp. 3-4). The Court holds
that Plaintiffs adequately alleged the elements of a private nuisance claim under Pennsylvania

' The parties do not dispute that Pennsylvania law substantively governs Plaintiffs’ claims.

Pennsylvania follows the Restatement (Second) of Torts approach for determining whether
a defendant’s conduct constitutes a private nuisance. Diess v. Pennsylvania Dep’t of Transp., 935
A.2d 895, 905 (Pa. Commw. Ct. 2007). Under this approach, private nuisances are
“nontrespassory invasion[s] of another’s interest in the private use and enjoyment of land.” Id.
(citing RESTATEMENT (SECOND) OF TorTs § 821D (Am. L. INST. 1977)). “A private nuisance exists
when a person’s conduct invades ‘another’s interest in the private use and enjoyment of land,’ and
that invasion is either intentional and unreasonable or unintentional but negligent.” Bapfiste v.
Bethlehem Landfill Co., 965 F.3d 214, 222-23 (3d Cir. 2020) (quoting Youst v. Keck’s Food Serv.,
Inc., 94 A.3d 1057, 1072 (Pa. Super. Ct. 2014)). An invasion is actionable under the doctrine of
nuisance only if it causes “significant harm, of a kind that would be suffered by a normal person
in the community or by property in normal condition and used for a normal purpose.” Karpiak v.
Russo, 676 A.2d 270, 272 (Pa. Super. Ct. 1996) (citing RESTATEMENT (SECOND) OF TORTS § 821F
(Am. L. INsT. 1977)). A significant harm must involve more than “slight inconvenience or petty
annoyance.” Jd. (citing RESTATEMENT (SECOND) OF TorTs § 821F cmt. c (AM. L. INsT. 1977)). It
must constitute a “real and appreciable interference with the plaintiff's use or enjoyment of his
land.” Id. The standard for determining whether an alleged invasion is significant is the “standard
of normal persons or property in the particular locality. If normal persons living in the community
would regard the invasion in question as definitely offensive, seriously annoying or intolerable,
then the invasion is significant.” Tiongco v. Sw. Energy Prod. Co., 214 F. Supp. 3d 279, 284 (M.D.
Pa. 2016) (internal citations omitted). “It is for the trier of fact to determine whether there was a
significant invasion of [a party’s] enjoyment of their property, and, if such an invasion existed,
whether the invasion was unreasonable.” Kembel v. Schlegel, 478 A.2d 11, 15 (Pa. Super. Ct.
1984). A defendant’s actions need not be injurious to health to be a nuisance. Jd. (citing Smith v.

Alderson, 396 A.2d 808, 810 (Pa. Super. Ct. 1979) (stating that a nuisance may be found where
there is an “unreasonable, unwarrantable, or unlawful use by a person of his own property which
causes injury, damage, hurt, inconvenience, annoyance or discomfort to one in the legitimate
enjoyment of his reasonable rights of person or property”) (emphasis added)).
Plaintiffs pled that noxious odors emanating from the Landfill substantially and
unreasonably interfered with their enjoyment of life and property by:
a) Forcing the Plaintiffs and Class Members to remain inside their homes and
forego the use of their yards, porches, and other spaces, and to generally refrain
from outdoor activities;
b) Causing the Plaintiffs and Class Members to keep their doors and windows
closed when they would otherwise have them open;
c) Depriving the Plaintiffs and Class Members of the value of their homes and
properties; [and]
d) Causing the Plaintiffs and Class Members embarrassment, inconvenience, and
discomfort including, but not limiting to, creating a reluctance to invite guests
in their homes and preventing Plaintiffs and Class Members from utilizing the
outdoor areas of their respective properties.
(ECF No. 1-3, § 59). Chambers contends that Plaintiffs’ “conclusory allegations more aptly
describe a slight inconvenience and petty annoyance than significant and unreasonable
interference.” (ECF No. 6, p. 7). Chambers further argues that Plaintiffs pled “no noncompliance
or violations by Chambers with the PDEP.” (d.).
A private nuisance may flow from the consequences of an otherwise lawful act. Tiongco,
214 F. Supp. 3d at 286 (citing Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal Prac.
Knowledge, 102 A.3d 501, 508-09 (Pa. Super. Ct. 2014)). Thus, whether Chambers complied with
PDEP requirements is not dispositive of whether Chambers’ activities constituted a significant
invasion giving rise to a private nuisance. The private nuisance inquiry is not limited to whether
Chambers’ conduct violated a regulation, ordinance, or other requirement. The question is whether

Chambers’ conduct constituted a significant and unreasonable invasion of Plaintiffs’ use and
enjoyment of their property.
Further, the Court disagrees with Chambers’ contention that Plaintiffs’ allegations are
conclusory and threadbare. Plaintiffs did not merely recite the elements of private nuisance.
Instead, Plaintiffs alleged specific interference with the use of their property — e.g., they were
forced to keep the windows of their residence closed and they felt reluctant to invite guests to their
property. (See ECF No. 1-3, 7 59). Accepting Plaintiffs’ allegations as true and viewing them in
the light most favorable to Plaintiffs, the Court holds that Plaintiffs plausibly alleged that odors
from the Landfill caused significant harm to Plaintiffs’ use and enjoyment of their property.
Chambers next argues that Plaintiffs failed to allege that Chambers’ actions were either
intentional and unreasonable or negligent and reckless as is required for liability to attach. (ECF
No. 6, pp. 7-8). Plaintiffs counter that their complaint contains factual allegations adequately
pleading that Chambers acted unreasonably and/or negligently. (ECF No. 19, p. 13). Plaintiffs
also contend that Chambers acted intentionally because it continued to operate the Landfill with
knowledge of its negative impact on the community. (d.). The Court holds that Plaintiffs
plausibly alleged that Chambers acted intentionally (in the context of private nuisance claims)
when Plaintiffs alleged that Chambers had notice of the invasion of the community’s land and
continued to intentionally operate the Landfill.
As discussed above, private nuisance plaintiffs must demonstrate that the invasion was
brought about by either intentional and unreasonable conduct, or unintentional conduct that is
otherwise actionable under the rules controlling liability for negligence or recklessness, or for
abnormally dangerous conditions or activities. Tiongco, 214 F. Supp. 3d at 284 (citing Karpiak,
676 A.2d at 272). A party commits an intentional invasion when he either “act[s] for the purpose

of causing it or know[s] that it is resulting or is substantially certain to result from his conduct.”
RESTATEMENT (SECOND) OF TorTS § 825 cmt. c (AM. L. INST. 1977); see also McQuilken v. A&R
Dev. Corp., 576 F. Supp. 1023, 1030 (E.D. Pa. 1983) (citing Burr v. Adam Eidemiller, Inc., 126
A.2d 403, 422 (Pa. 1956)). A party generally possesses the requisite level of intent if he knows or
is substantially certain “that the condition or activity is causing harm to another’s interest in the
use and enjoyment of land.” Tiongco, 214 F. Supp. 3d at 284. When a defendant begins a course
of conduct without knowing that his conduct is invading another’s use and enjoyment of land but
is later put on notice that such an invasion is resulting and does not abate his activities, further
invasions may be considered “intentional.” RESTATEMENT (SECOND) OF TorRTS § 825 cmt. d (AM.
L. Inst. 1977) (explaining that in cases involving continuing or recurrent invasions, the “first
invasion resulting from the actor’s conduct may be either intentional or unintentional; but when
the conduct is continued after the actor knows that the invasion is resulting from it, further
invasions are intentional”).
Plaintiffs pled that “[b]y constructing and then failing to reasonably repair, maintain, and
operate the Landfill, thereby causing noxious odors to physically invade the Plaintiffs’ and Class
[Members’] properties, [Chambers] intentionally, knowingly, recklessly, and/or negligently
created a nuisance that substantially and unreasonably interferes with the Plaintiffs’ and Class
[Members’] properties.” (ECF No. 1-3, 61). Plaintiffs also alleged that Chambers “failed to use
adequate mitigation strategies, processes, technologies, and equipment to control noxious odor
emissions from the Landfill and prevent those odors from invading the homes and properties of []
Plaintiffs and [Class Members].” (/d. J 26). Finally, Plaintiffs allege that Chambers “knew about
its substantial noxious odor emissions through numerous complaints, warnings, and significant
media attention throughout the Borough of Pitcairn.” (/d. 441). Given the allegations discussed

above, Plaintiffs plausibly pled that Chambers knew or had substantial certainty that their conduct
was invading Plaintiffs’ use and enjoyment of their land. Thus, the Court holds that Plaintiffs
plausibly alleged that Chambers acted intentionally in the context of their private nuisance claim.
Since the Court holds that Plaintiffs plausibly pled that Chambers acted intentionally, the Court
does not discuss whether Plaintiffs plausibly alleged that Chambers acted negligently or recklessly.
See Pryor v. Nat’l Collegiate Athletic Ass’n., 288 F.3d 548, 565 (3d Cir. 2002) (stating that “issues
involving state of mind (e.g., intent) are often unsuitable for a Rule 12(b)(6) motion to dismiss”).
Finally, Chambers argues that Plaintiffs failed to allege that their property interests were
“encroached by something that has come onto the property against their will.” (ECF No. 6, p. 8).
In other words, Chambers argues that Plaintiffs’ allegations did not relate to a property interest.
(d.). Plaintiffs counter that “[bJoth Plaintiffs clearly allege odor experiences specifically
impacting their private property interests.” (ECF No. 19, p. 14). The Court holds that Plaintiffs
plausibly alleged an invasion of their property interests.
Chambers correctly notes that private nuisance plaintiffs must plead that their “property
interests have been encroached by something that has come onto the property against the
plaintiff[s’] will.” Cavanagh v. Electrolux Home Prod., 904 F. Supp. 2d 426, 435 (E.D. Pa. 2012).
Franci alleged that he “experiences a lack of sleep” because of the odors emitted from the Landfill.
(ECF No. 1-3, 9 31). Bumbaugh alleged that the “odor is so bad it makes the inside of your house
smell.” (Ud. 32). Chambers alleges that these allegations do not relate specifically to any property
interest. Viewing the complaint in the light most favorable to Plaintiffs, the Court holds that these
statements allege an encroachment of Plaintiffs’ residences. Thus, Plaintiffs alleged that their
properties have been encroached upon by odors that have come onto their property against
Plaintiffs’ will.

10

ii. Public Nuisance
Chambers contends that Plaintiffs have not pled interference with a public right, requiring
dismissal of their public nuisance claim (Count II). (ECF No. 6, pp. 9-11). Plaintiffs counter that
they plausibly alleged interference of the public’s right to unpolluted and uncontaminated air.
(ECF No. 19, p. 14). The Court holds that Plaintiffs plausibly alleged interference with the right
to fresh air in public spaces.
A public nuisance is an unreasonable interference with a right common to the public. □□□□
Richfield Co. vy. Cnty. of Montgomery, 294 A.3d 1274, 1283 (Pa. Commw. Ct. 2023) (citing
RESTATEMENT (SECOND) OF TORTS § 821B).? Unlike reasonableness, which is a factual inquiry,
whether a right is public is a question of law. Id. at 1284 (citing 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. Id; 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 (SECOND) OF TorRTS § 821B cmt. g (AM. L. INST. 1977).
“Tf, 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.

2 In public nuisance actions, Pennsylvania courts rely on the Restatement (Second) of Torts §
821B. Atl. Richfield Co. v. Cnty. of Lehigh, 299 A.3d 181 (Pa. Commw. Ct. 2023).
1]

Baptiste v. Bethlehem Landfill Co., 965 F.3d 214 (3d Cir. 2020) is instructive in
determining whether Plaintiffs plausibly alleged interference with a public right. In Bapfiste,
property owners sued a landfill owner, on behalf of themselves and a putative class of persons,
asserting causes of action for, in part, public nuisance. The United States Court of Appeals for the
Third Circuit noted that there is a public right to “fresh air in public spaces.” Baptiste, 965 F.3d
at 220. Moreover, the Third Circuit found that the plaintiffs properly alleged a public nuisance
claim when they pled that odors emanating from a landfill caused significant discomfort and
inconvenience when the odors invaded their community. Id.
Plaintiffs allege that Chambers’ “noxious odors have interfered with the public’s right to
unpolluted and uncontaminated air” and that “[m]any members of the general public are impacted
by the odors when they work, study, commute, shop, or engage in recreation in the Class Area.”
(ECF No. 1-3, §§ 70, 75). Plaintiffs also allege that “[m]embers of the public, including, but not
limited to, businesses, employees, commuters, tourists, visitors, minors, customers, clients,
students, and patients have been harmed by the fugitive noxious odors emitted from the Landfill
into public spaces.” (Ud § 40). Like in Baptiste, Plaintiffs alleged significant discomfort and
inconvenience caused by offensive odors emitting from the Landfill into the surrounding area.
Plaintiffs alleged that the odors interfered with the activities of the general public in the area.
Given these allegations, the Court holds that Plaintiffs plausibly pled that Chambers significantly
interfered with the public right to clean and uncontaminated air.
Chambers argues that the public right to clean air flows between the Commonwealth of
Pennsylvania and its citizens. (ECF No. 20, pp. 4-5). Thus, it argues that Plaintiffs cannot rely on
this right to establish a public nuisance claim. (d.). Under Baptiste, private citizens may sue
under a theory of public nuisance to vindicate their right to fresh air in public spaces. Baptiste,

12

965 F.3d at 220. Chambers is correct that “[b]ecause these rights are held in common by the public
at large and no one owns them to the exclusion of others, the remedy for their infringement
ordinarily lies ‘in the hands of the state.’” Jd. (quoting Philadelphia Elec. Co. v. Hercules, Inc.,
762 F.2d 303, 315 (3d Cir. 1985)). However, “[w]hen a public nuisance interferes with an
individual’s personal rights, such as the right to use and enjoy private land, the aggrieved person
has a private cause of action to remedy the infringement of his personal rights.” Jd. Stated
differently, to sustain a private claim on a public nuisance theory, “a plaintiff must have suffered
a harm of greater magnitude and of a different kind than that which the general public suffered.”
Id.; see also Pennsylvania Soc. for Prevention of Cruelty to Animals v. Bravo Enterprises, Inc.,
237 A.2d 342, 360 (Pa. 1968) (“[A] public nuisance may be enjoined at the behest of a private
citizen or group of citizens, if. . . their property or civil rights[ ] are specifically injured by the
public nuisance over and above the injury suffered by the public generally.”). Chambers’ argument
that Plaintiffs cannot bring a claim for public nuisance to enforce the public right to clean air fails.
B. The Economic Loss Doctrine
The Court holds that Plaintiffs plausibly alleged physical injury sufficient for their
negligence and private nuisance claims to survive Chambers’ motion to dismiss. The viability of
Plaintiffs’ claims depends on whether the invasion of noxious odors onto an individual’s property
is a cognizable physical injury. Chambers argues that the Court must dismiss Plaintiffs’ negligence
and private nuisance claims under the economic loss doctrine because Plaintiffs have not pled any
physical injury or property damage. (ECF No. 6, p. 12).4 The Court need not, at this early stage

3 Chambers did not argue that Plaintiffs did not suffer a harm of greater magnitude and of a
different kind than what the general public suffered. Thus, the Court does not address this issue.
4 Chambers separately argues that Plaintiffs’ negligence claim fails because Plaintiffs have not
alleged physical injury or damage to their properties. (ECF No. 6, p. 11). Because both arguments
13

of the proceedings, make a final determination as to whether the facts in this case bring Plaintiffs’
claims within the orbit of the economic loss doctrine. It leaves for another day the question of
whether the odor from the Landfill can be viewed as causing damage to or a physical invasion of
Plaintiffs’ property. The parties may revisit this issue at summary judgment with a more fulsome
record on the nature of the alleged odor, its genesis and composition, and any other issue that might
be relevant to the traditional economic loss doctrine analysis. As explained below, the Court leans
toward predicting that the Pennsylvania Supreme Court would hold that the economic loss doctrine
would not bar tort recovery in negligence and private nuisance cases arising from the type of
circumstances this case presents.°
The economic loss doctrine provides that “no cause of action exists for negligence that
results solely in economic damages unaccompanied by physical injury or property damage.” Am.
Stores Properties, Inc. v. Spotts, Stevens & McCoy, Inc., 678 F. Supp. 2d 328, 333 (E.D. Pa. 2009);
see also Spivack v. Berks Ridge Corp. Inc., 586 A.2d 402, 405 (Pa. Super. Ct. 1990). Economic
loss has been defined as “damage for inadequate value, costs of repair and replacement of defective
product, [and] consequential loss of property, without any claim of personal injury or damage to
other property.” Palco Linings, Inc. v. Pavex, Inc., 755 F. Supp. 1269, 1276 (M.D. Pa. 1990).
Moreover, the scope of the economic loss doctrine is not restricted to negligence actions; instead,

hinge on whether odor invasion constitutes a physical injury, the Court will address them in one
analysis under the umbrella of the economic loss doctrine.
> In the absence of a controlling opinion from the Pennsylvania Supreme Court on an issue
involving Pennsylvania law, federal courts must predict how that court would decide the issue.
Pac. Emps. Ins. Co. v. Glob. Reinsurance Corp. of Am., 693 F.3d 417, 433 (3d Cir. 2012). Since
the Pennsylvania Supreme Court has not decided whether the economic loss doctrine bars recovery
in negligence and private nuisance cases dealing with noxious odors, air pollutants, and the like,
this Court has approached the analysis as it believes the Pennsylvania Supreme Court would if
presented with identical issues.
14

this doctrine extends to tort liability more generally. Diehl v. CSX Transp., Inc., 349 F. Supp. 3d
487, 506 (W.D. Pa. 2018); Duquesne Light v. Pa. Am. Water Co., 850 A.2d 701, 705 (Pa. Super.
Ct. 2004) (discussing Pennsylvania’s “strong, oft-stated public policy of barring recovery for
economic losses sustained as a result of another’s tortious conduct” including liability for private
nuisance); Moore v. Pavex, Inc., 514 A.2d 137, 139 (Pa. Super. Ct. 1986) (rejecting the contention
that plaintiffs could recover under the law of private nuisance for purely economic harm). The
economic loss doctrine applies to Plaintiffs’ claims of negligence and private nuisance.®
In Baptiste, the Third Circuit expressly declined to consider whether “noxious odors,
pollutants, and air contaminants” invading an individual’s property constitutes physical injury
sufficient to avoid the application of the economic loss doctrine. Baptiste, 965 F.3d at 228. The
Court noted:
Conceptually, it is not difficult to conceive how the presence of hazardous
particulates in the air could constitute physical property damage if these pollutants
infiltrate physical structures, as is the case when hazardous chemicals seep into
private wells through contamination in groundwater. See Ayers v. Jackson Twp.,
525 A.2d 287, 294 (N.J. 1987); see also Gates v. Rohm & Haas Co., No. CIV.A.
06-1743, 2008 WL 2977867, at *3 (E.D. Pa. July 31, 2008) (‘[T]he physical
presence of vinyl chloride [a hazardous substance] in the air, even if undetectable,
constitutes a physical injury to the property for purposes of common law property
damage claims.”). Drawing all reasonable inferences in favor of the [plaintiffs], as
required at the pleadings stage, the allegations in the complaint—- namely that
“Jandfill gas” and other hazardous contaminants have physically invaded the
plaintiffs’ property and “permeate[d] the walls’— may be enough to satisfy that
requirement.
Id. at 229 n. 12. Absent controlling circuit precedent, district courts within the Third Circuit have
reached different conclusions. Chambers relies mainly on the decision of the United States District

The Court rejects Plaintiffs’ argument that the economic loss doctrine is limited to products
liability actions. See Lower Lake Dock Co. v. Messinger Bearing Corp., 577 A.2d 631, 634 (Pa.
Super. Ct. 1990) (stating that the economic loss doctrine “is not limited to products liability”
actions).
15

Court for the Eastern District of Pennsylvania in Lloyd v. Covanta Plymouth Renewable Energy,
LLC, 517 F. Supp. 3d 328 (E.D. Pa. 2021) for the contention that the invasion of noxious odors
cannot by itself satisfy the economic loss doctrine. In Lloyd, the plaintiff brought claims for private
nuisance, public nuisance, and negligence. /d. at 330. These claims arose from the defendant’s
operation of a waste-to-energy processing facility which plaintiffs alleged emitted noxious odors
that invaded her and other residents’ properties. Jd. The plaintiff pled that the odors harmed her
property due to the loss of its use and enjoyment, that noxious odors prevented her and her
neighbors from engaging in outdoor activities, and that the odors forced her to keep her windows
closed on certain days. Jd. at 333. The plaintiffs claims in Lloyd are much like Plaintiffs’
allegations here. The court cited to the Third Circuit’s footnote in Baptiste to support its
conclusion that the plaintiff failed to plead sufficient facts alleging physical injury or property
damage to support her claim for negligence. Jd. at 332.
On the other hand, in denying a defendant’s motion to dismiss a plaintiff's negligence
claim, a fellow judge of this Court “respectfully decline[d] to adopt the reasoning in Lloyd” which,
in the court’s view, read “too much into the [Third Circuit’s] footnote” in Baptiste. Childs v.
Westmoreland Sanitary Landfill LLC, No. CV 21-1100, 2022 WL 2073022, at *1 (W.D. Pa. June
9, 2022).
In Flynn v. Shell Chem. Appalachia, LLC, No. 2:24-CV-00193-MJH, 2024 WL 4664830
(W.D. Pa. Nov. 4, 2024), another fellow judge of this Court dismissed the plaintiff's negligence
claim because the complaint did not sufficiently allege “the infiltration into Plaintiffs physical
structure which has caused physical damage under a negligence theory.” Flynn, 2024 WL
4664830, at * 3. The court looked to the Third Circuit’s reference in the Baptiste footnote as an
indication that, “in the industrial context,” physical damage requires air pollutants to infiltrate

16

physical structures. Jd. The court noted that one putative class member asserted that they had to
perform “extra dusting” inside the house” since the plant at issue opened. Jd. The court held that
this allegation was not sufficient to establish physical infiltration because Plaintiffs did not aver
any “precise connection” between the alleged extra dusting within the residence and damages for
diminution of property value. Id.
The Court agrees with its colleague in Childs that the Baptiste footnote should not be read
to require the physical infiltration or permeation of Plaintiffs’ property by chemicals or noxious
gases. The Court views it as significant that in Baptiste the Third Circuit favorably cited to Gates
v. Rohm & Haas Co., No. CIV.A. 06-1743, 2008 WL 2977867 (E.D. Pa. July 31, 2008). In Gates,
the court held that “[w]here the invading substance is a hazardous chemical, to demonstrate
interference with use and enjoyment of the property, a plaintiff must show either a physical
invasion or an invasion by something otherwise perceptible to the senses, but not necessarily
physical, like noise or vibrations.” Jd. at *3. The court “conclude[d] that the physical presence
of vinyl chloride in the air, even if undetectable, constitutes a physical injury to the property for
purposes of common law property damage claims.” /d. (stating that “there is sufficient evidence
in the record to establish that vinyl chloride is a carcinogen and thus a hazardous chemical, the
Plaintiffs need only show that vinyl chloride was and continues to be physically present on their
properties”). Chambers argues that Gates is distinguishable from the instant case because Gates
involved a hazardous carcinogen. Here, Plaintiffs did not allege the presence of a hazardous
carcinogen but “noxious odors” and “fugitive emissions.” (See e.g., ECF No. 1-3, #4 14, 17, 20,
26). Plaintiffs repeatedly alleged that Chambers “caused a physical invasion of the Plaintiffs’ and
putative Class [Members’] properties by noxious odors on frequent, intermittent, and reoccurring
occasions too numerous to list individually.” Ud. J] 42, 43, 84).

17

Even if the physical invasion of noxious odors cannot be construed as inflicting physical
injury to Plaintiffs’ property, the Court has doubts as to whether Pennsylvania’s economic loss
doctrine is applicable to Plaintiffs’ claims. The well-established policy behind the economic loss
doctrine is preventing open-ended tort liability. Because the economic consequences of many
types of negligent conduct are far-reaching, a defendant who could be held liable for every
economic effect of its tortious conduct would face virtually uninsurable risks, far out of proportion
to its culpability. Thus, in a classic economic loss case, the doctrine is meant to prevent highly
attenuated theories of proximate causation. By way of illustration, imagine a plaintiff who owns
a restaurant in a resort area that generates most of its business from customers returning from the
beach. An oil spill shuts down the beach. The restaurant’s business drastically decreases. The
restaurant owner sues the defendant who spilled the oil for negligence. This is a classic case where
the economic loss rule bars recovery. The plaintiff suffered no actual personal injury or property
damage. The business’s losses were actually caused by the lack of customers. In this hypothetical,
the oil spill was further upstream in the chain of ultimate causation than our law countenances.
Whereas here, the harm complained of by Plaintiffs is directly caused by the noxious odors. One
might say that the harm is the odor itself. Thus, Plaintiffs are alleging a direct harm to enjoyment
of day-to-day life on their land. The harm is not caused by some distant event.
The Pennsylvania Supreme Court has recently exhibited a willingness to reconsider the
extent of the economic loss doctrine. The Court permitted negligence claims to proceed even
where the plaintiffs did not allege any personal injury or property damage. In Dittman v. UPMC,
196 A.3d 1036 (Pa. 2018), employees sued their employer for, in part, negligence, after a data
breach wherein the names, birth dates, social security numbers, tax information, addresses,
salaries, and bank information of the employees were accessed and stolen from the employer’s

18

computer systems. Jd. at 499-501. The employer argued that the economic loss doctrine prevented
the plaintiffs’ recovery because they did not allege any physical injury or property damage. Jd. at
502. The Pennsylvania Supreme Court held that the economic loss doctrine does not preclude all
negligence claims seeking solely economic damages. Jd. at 525. The Court permitted the plaintiffs
to pursue damages in tort, despite the economic loss doctrine, even though the data breach did not
cause any property damage or physical injury. Dittman is notable because it demonstrates that the
Pennsylvania Supreme Court has taken a major step away from a strict application of the economic
loss doctrine and permitted tort claims to proceed in cases where nothing approximating physical
damage or personal injury occurred. Here, the alleged harm from the odor is arguably more direct,
and physical, than the harm that might accrue to the Dittman plaintiffs due to the data breach.
Other courts have acknowledged the possible incongruity between the classic application
of the economic loss doctrine and circumstances like those presented by this case. For example,
in Paulus vy. Citicorp N. Am., Inc., No. 2:12-CV-856, 2013 WL 5487053 (S.D. Ohio Sept. 30,
2013), the plaintiffs sued a company that operated a data center near the plaintiffs’ property.
Paulus, 2013 WL 5487053, at *1. The plaintiffs alleged that the defendant’s generators
“produce[d] a loud, annoying noise that” they could hear “both inside and outside of their home”
during all hours of the day. Id. They also alleged that the noise caused their windows to vibrate,
forced them to close their windows “instead of enjoying the natural ventilation from the outside
air,” woke them up between the hours of 10:00 p.m. and 5:00 a.m., caused them sleep deprivation,
which hurt their performance at work, and prevented them from “the quiet enjoyment of their home
and yard during their leisure time.” Jd. The defendant alleged that Ohio law, which has an
economic loss doctrine that is substantively identical to Pennsylvania, prevented the plaintiffs from
recovering purely economic losses. /d. at *8. The court held that the plaintiffs’ alleged damages

19

did not qualify as indirect economic loss, but rather direct economic losses which were not
prevented by the economic loss doctrine. The court held:
[T]o the extent the [plaintiffs] assert purely economic damages, the damages are
direct — they allege, for example, the lost value of their house as a result of conduct
they see as tortious. This is not akin to consequential damages or lost profit, rather
more in alignment with “the loss attributable to the decreased value of [a] product.”
Because these qualify as direct economic damages, the economic loss doctrine does
not bar the claims at issue.
Id. (internal citations omitted). In the alternative, the court noted that even if the plaintiffs’ alleged
damages were indirect, they arose “from tangible physical injury to persons or from tangible
property” damage because “a diminished quality of life, sleep deprivation, and diminished
performance at work” amount to harms that are “tangible, redressable, nuisance-related injuries.”
Id. at *9; see also Little Hocking Water Ass’n, Inc. v. E.L du Pont Nemours & Co., 91 F. Supp. 3d
940, 988 (S.D. Ohio 2015) (noting that the economic loss doctrine does not prevent recovery for
economic losses which are “more akin to the decreased value of the product than to loss of profits
or time”); Avery v. GRI Fox Run, LLC, 160 N.E.3d 155, 175 (Ill. App. Ct. 2020) (stating, in the
context of a private nuisance claim, that “inconvenience, health issues, annoyance, discomfort, and
the inability to fully use and enjoy” the plaintiffs’ property cannot be characterized as economic
losses or injury because the alleged damages are a form of personal injury).
Here, Plaintiffs have alleged damages for interference with the use and enjoyment of
private property, loss of property values, and interference with Plaintiffs’ activities in the area
surrounding the Landfill. (See e.g., ECF No. 1-3, §] 29, 31-32, 36-37). The parties dispute
whether these damages are “purely economic loss” barring Plaintiffs from recovering under
negligence and private nuisance theories of liability. The parties further dispute whether Plaintiffs
plausibly pled physical injury sufficient to sustain a negligence claim. As discussed above, binding
case law does not resolve whether invasion by noxious odors resulting in loss of enjoyment and

20

use of property constitutes non-economic physical injury. However, the Third Circuit in Baptiste
indicated that loss of real property value and interference with the use and enjoyment of property
are not purely economic losses. Baptiste, 965 F.3d at 222 n.4 (“The [plaintiffs] are not seeking
economic losses, only real property damages, i.e., loss of real property value and interference with
the use and enjoyment of their homes and private land.”). Further, even if Plaintiffs’ losses are
solely economic, it is unclear whether the Supreme Court of Pennsylvania would hold that the
economic loss doctrine prevents their recovery. In light of the uncertainty in binding case law, the
Court cannot now conclude, drawing inferences in Plaintiffs’ favor, that loss of use of real property
is a purely economic loss such that it is appropriate to dismiss Plaintiffs’ negligence and private
nuisance claims on the pleadings as a matter of law. Nor can the Court conclude, at this time, that
Plaintiffs’ claims fall within the ambit of the economic loss doctrine. Viewing all inferences in
the light most favorable to Plaintiffs, the Court holds that Plaintiffs’ plausibly alleged injuries or
damages are sufficient for their negligence and private nuisance claims to survive Chambers’
motion to dismiss.
C. Punitive Damages
Chambers next argues that Plaintiffs’ allegations do not support an award of punitive
damages. (ECF No. 6, p. 15). Chambers contends that “the pleadings do not demonstrate that
Chambers had the requisite state of mind or that the conduct at issue is so outrageous as to call for
the imposition of punitive damages.” (/d. at 16). Plaintiffs counter that it is premature to strike
Plaintiffs’ claim for punitive damages. (ECF No. 19, p. 19). They argue that “the Court should
reserve any decision on entitlement to punitive damages until the summary judgment stage, based
on acomplete record.” (Ud). The Court will deny Chambers’ motion because striking Plaintiffs’
punitive damages claim at the motion to dismiss stage would be premature.

21

In Pennsylvania, “punitive damages are awarded for outrageous conduct, that is, for acts
done with a bad motive or with a reckless indifference to the interests of others.” Judge Technical
Servs., Inc., v. Clancy, 813 A.2d 879, 889 (Pa. 2002) (emphasis and internal quotation marks
omitted). “[P]unitive damages are penal in nature and are proper only in cases where the
defendant’s actions are so outrageous as to demonstrate willful, wanton[,] or reckless conduct.”
Hutchison v. Luddy, 870 A.2d 766, 770 (Pa. 2005). “The state of mind of the actor is vital. The
act, or the failure to act, must be intentional, reckless or malicious.” Id.
The Pennsylvania Supreme Court discussed punitive damages at length in Phillips v.
Cricket Lighters, 883 A.2d 439 (Pa. 2005):
Our case law makes it clear that punitive damages are an “extreme remedy”
available in only the most exceptional matters. Punitive damages may be
appropriately awarded only when the plaintiff has established that the defendant
has acted in an outrageous fashion due to either “the defendant’s evil motive or his
reckless indifference to the rights of others. A defendant acts recklessly when “his
conduct creates an unreasonable risk of physical harm to another [and] such risk is
substantially greater than that which is necessary to make his conduct negligent.”
Phillips, 883 A.2d at 445-46 (stating that punitive damages exist to “heap an additional punishment
on a defendant who is found to have acted in a fashion that is particularly egregious”) (internal
citations omitted). The question of punitive damages is usually determined by the trier of fact and
the Court may decide the issue only when no reasonable inference from the facts alleged supports
a punitive award.’ Diehl, 349 F. Supp. 3d at 509 (internal citations omitted).

7 Plaintiffs contend that Chambers’ motion to dismiss Plaintiffs’ punitive damages claim “is not
properly brought under Rule 12(b)(6) and instead can only be considered in the context of a Motion
to Strike under Rule 12(f).” (ECF No. 19, p. 19). The Court will analyze Chambers’ motion under
Rule 12(b)(6). A Rule 12(f) motion to strike has “no application to a request for punitive damages,
in that it does not constitute redundant, immaterial, impertinent, or scandalous matter.” Castelli-
Velez v. Moroney, No. 3:20-CV-00976, 2021 WL 978814, at *4 (M.D. Pa. Mar. 16, 2021) (internal
citations omitted); see also Jordan vy. Wilkes-Barre Gen. Hosp., No. 07-CV-390, 2008 WL
3981460, at *4 (M.D. Pa. Aug. 22, 2008) (stating that courts should not use Rule 12(f) to dismiss
requests for punitive damages).
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Plaintiffs’ request for punitive damages may proceed. Plaintiffs pled that Chambers
“knowingly, recklessly, and with a conscious disregard for the rights of the Plaintiffs and Class
[Members] allowed conditions to exist and perpetuate, which caused noxious odors to physically
invade the Plaintiffs’ and Class [Members’] properties.” (ECF No. 1-3, 9 87). Plaintiffs also
alleged that Chambers’ “negligence was committed with a conscious indifference to the harm
caused to the Plaintiffs’ and Class [Members’] properties, which entitles the Plaintiffs and Class
[Members] to an award for... punitive relief.” (/d. 7 88). Moreover, Plaintiffs alleged throughout
their complaint that Chambers acted “intentionally, knowingly, willfully, recklessly, and/or
negligently” when it failed to properly “construct, maintain, and/or operate the Landfill” and when
it “knew about its substantial noxious odor emissions through numerous complaints, warnings,
and significant media attention... .” (Ud J 41-42). The Court finds that Plaintiffs have
adequately alleged that Chambers was aware of the Landfill’s impact on the community and acted
in conscious disregard of those impacts. If Plaintiffs’ allegations are proven, punitive damages
may be appropriate. Whether the facts ultimately support a request for punitive damages is a
question for another day.
D. Class Allegations
Chambers argues that the Court should strike Plaintiffs’ class allegations because the
complaint demonstrates that individual issues will predominate, rendering class treatment
inappropriate. (ECF No. 6, p. 16). Plaintiffs counter that (1) motions to strike class allegations at
the motion to dismiss stage are “disfavored” and granted in rare cases; (2) striking class allegations
based on predominance is “suspect”; and (3) Plaintiffs can prove that common issues predominate.
(ECF No. 19, p. 20). Chambers responds that striking class allegations at the motion to dismiss
stage is rare but appropriate in the instant case where “the factfinder would have to go property-

23

by-property throughout the entire class to make these individualized causation determinations.”
(ECF No. 20, p. 13). At this stage of the proceedings, the Court will deny Chambers’ motion
because this is not the “rare case” where striking class allegations is appropriate.
The Court, either on its own or on motion made by a party, may strike from a pleading “an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” FED. R. CIv.
P. 12(f). When considering class allegations, the Court may “require that the pleadings be
amended to eliminate allegations about representation of absent persons and that the action proceed
accordingly.” FeEp. R. Civ. P. 23(d)(1)(D). In defending against a motion to strike class
allegations, “[t]he plaintiff bears the burden of advancing a prima facie showing that the class
action requirements of Rule 23 are satisfied or that discovery is likely to produce substantiation of
the class allegations.” Salyers vy. A.J. Blosenski, Inc., No. CV 23-4802, 2024 WL 1773368, at *2
(E.D. Pa. Apr. 24, 2024) (internal citations omitted).
“fA] motion to strike class allegations pursuant to Rule 23(d)(1)(D) seems, for all practical
purposes, identical to an opposition to a motion for class certification, and the rule provides the
procedural mechanism for striking class allegations . . . once the Court determines that
maintenance of the action as a class is inappropriate.” Almond v. Janssen Pharms., Inc., 337
F.R.D. 90, 99 (E.D. Pa. 2020) (internal citations and quotation marks omitted). However, here,
unlike in the typical class certification motion, the parties have not begun much less completed
discovery. Because “[c]lass determination generally involves considerations that are enmeshed in
the factual and legal issues comprising the plaintiff's cause of action, and discovery is therefore
integral,” only in “rare cases where the complaint itself demonstrates that the requirements for
maintaining a class action cannot be met” should a court strike the class allegations at the motion
to dismiss stage. Salyers, 2024 WL 1773368, at *2 (internal citations omitted); Landsman & Funk

24

PC Skinder-Strauss Assoc., 640 F.3d 72, 93, 93 n.30 (3d Cir. 2011) (stating that, in relation to
striking class allegations, “[i]n most cases, some level of discovery is essential).
“The class action is an exception to the usual rule that litigation 1s conducted by and on
behalf of the individual named parties only.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)
(internal quotation marks omitted). In order to become certified, a class must satisfy the four
requirements of Rule 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of
representation. FED. R. Civ. P. 23(a). In addition, Rule 23 mandates that parties seeking class
certification satisfy the requirements of one of the three subsections in Rule 23(b). Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 614-15 (1997). To satisfy Rule 23(b)(3), which applies
here, a party seeking certification must meet two requirements. /d. First, common questions must
“predominate over any questions affecting only individual members.” Jd. Second, class resolution
must be “superior to other available methods for the fair and efficient adjudication of the
controversy.” Id.
Here, as discussed above, Plaintiffs seek to bring this action on behalf of “[alll
owners/occupants and renters of residential property within one (1) mile of the Landfill property
boundary.” (ECF No. 1-3, p. 12). Chambers argues that Plaintiffs’ class allegations should be
struck under Rules 12(f) and 23(b)(3) because the complaint does not demonstrate that individual
issues will predominate. (ECF No. 6, p. 16). Plaintiffs counter that numerous common issues will
predominate including (1) whether and how Chambers emitted off-site nuisance odors; (2) the
geographic extent to which those odors invaded the surrounding residential community; (3)
whether Chambers acted negligently or unreasonably in emitting off-site odors; and (4) the degree
of harm suffered by Plaintiffs and the Class Members. (ECF No. 19, p. 21).

25

The predominance requirement “tests whether proposed classes are sufficiently cohesive
to warrant adjudication by representation, a standard far more demanding than the commonality
requirement of Rule 23(a).” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 310-11 3d
Cir. 2008) (internal citations omitted). However, predominance does not require absolute identity
of the underlying claims. See Harnish v. Widener Univ. Sch. of Law, 833 F.3d 298, 304 (3d Cir.
2016). “[I]f the court decides that the central, predominant issues in the case are common, then
Rule 23(b)(3) is met despite the possibility that some subsidiary issues will require individualized
evidence.” Jd. Thus, the need for an individualized damage determination is not necessarily fatal
to Rule 23(b)(3) certification. Brockman v. Barton Brands, Ltd., No. 3:06CV-332-H, 2007 WL
4162920, at *9 (W.D. Ky. Nov. 21, 2007). Further, motions to strike class allegations based on
predominance are specifically disfavored at the motion to dismiss stage. Landsman, 640 F.3d at
93 (“Particularly when a court considers predominance, it may have to venture into the territory of
aclaim’s merits and evaluate the nature of the evidence. . . . [A|llowing time for limited discovery
supporting certification motions may . . . be necessary for sound judicial administration.”) (internal
citations omitted). “To determine if the requirements of Rule 23 have been satisfied, a district
court must conduct a rigorous analysis.” Jd. (internal citations and quotation marks omitted).
Plaintiffs argue that “[clommon issues predominate in air pollution cases when the
paramount issue concerns whether a plant’s emissions are substantially interfering with the local
residents’ use and enjoyment of their real and personal property.” (ECF No. 19, p. 20) (citing
Stanley v. U.S. Steel Co., No. 04-74654, 2006 WL 724569, at *7 (E.D. Mich. Mar. 17, 2006).
Chambers responds that “nuisance claims inherently raise individualized issues due, in part, to the
fundamental maxim that each parcel of land is unique.” (ECF No. 6, p. 18) (citing Navarro v.
ExxonMobil Corp., No. CV 17-2477 DSF (SKX), 2022 WL 22248790, at *12 (C.D. Cal. July 5,

26

2022)). Plaintiffs pled that the following issues are common questions of law and fact that
predominate over any individual questions affecting Class Members:
a) Whether and how [Chambers] wrongfully, intentionally, knowingly,
recklessly, and/or negligently failed to maintain and operate the Landfill,
causing noxious odors to invade their properties;
b) Whether [Chambers] owed any duties to the Class Members;
c) Which duties [Chambers] owed to the Class Members;
d) Which steps [Chambers] has and has not taken in order to control the
emission of noxious odors through the maintenance and operation of the
Landfill;
e) Whether and to what extent the Landfill’s noxious odors were dispersed
over the Class Area;
f) Whether it was reasonably foreseeable that [Chambers’] failure to properly
maintain and operate the Landfill would result in an invasion of the Class
Members’ property interests;
g) Whether the degree of harm suffered by the Class Members constitutes a
substantial annoyance or interference with their use and enjoyment of their
properties; and
h) The proper measure of damages incurred by the Class Members.
(ECF No. 1-3, § 48).
At this early stage, Plaintiffs have met their burden of advancing a prima facie showing of
predominance. Reading the complaint in the light most favorable to Plaintiffs, the above
allegations adequately plead that Plaintiffs’ claims are sufficiently cohesive so as to warrant
adjudication by representation. The parties may revisit this issue at the class certification stage.
A more fulsome record is necessary for the Court to conduct the rigorous analysis it is tasked with
to determine predominance. It needs more than speculation and supposition to determine whether
issues common to the putative class will predominate in this litigation.
Chambers also advances an argument for striking the class allegations that goes to the class
definition. It argues that Plaintiffs’ class allegations should be struck because Plaintiffs failed to
plead facts showing why the one-mile geographical boundary is proper. (ECF No. 6, p. 20 n. 11).
Issues regarding class definition are best decided at the class certification stage, not on a motion

27

to strike. Webb v. Circle K Stores Inc., No. CV-22-00716-PHX-ROS, 2022 WL 16649821, at *3
(D. Ariz. Nov. 3, 2022) (“The proper stage for fine-tuning the class definition is certification, not
pleading.”); Corbett v. Pharmacare U.S., Inc., 544 F. Supp. 3d 996, 1013 (S.D. Cal. 2021)
(denying a defendant’s motion to strike class allegations based on the argument that the class was
overbroad because “[p]laintiffs should be given an opportunity through discovery to demonstrate
a... class is viable at the class certification stage”). The Court recognizes that it may reject
the proposed class if Plaintiffs failed to identify a logical reason for the one-mile geographic
boundary. However, the Court notes that a geographic boundary transforms the class from being
one whose outer limits were determined by long-term transient movements of the wind and odors
(which is obviously not ascertainable), to being a proposed class whose outer limits are definite.
The one-mile geographic boundary, at this early stage, is sufficient. After reviewing evidence as
the record develops, the Court will be in a better position to decide whether Plaintiffs’ proposed
class definition succeeds or fails. Since it is not facially apparent that Plaintiffs’ proposed class is
not ascertainable, the Court will deny Chambers’ motion to strike on that ground.
Finally, Chambers takes issue with Plaintiffs’ class allegations because Plaintiffs do not
include a relevant time period. (ECF No. 6, p. 20 n. 11). According to Chambers, “[i]t is unclear
whether the proposed class includes residents going back five months or fifty years.” (d.).
Plaintiffs did not include any class period limiting Chambers’ alleged liability to a certain time
period anywhere in their complaint. (ECF No. 1). At a later stage, the failure to propose an
appropriate time limitation in defining the class period will usually result in a finding that the class
is impermissibly overbroad and not ascertainable. See Royal Park Invs. SA/NV v. Deutsche Bank
Tr. Co., No. 14-CV-4394 (AJN), 2017 WL 1331288, at *5 (S.D.N.Y. Apr. 4, 2017) (denying
a class certification motion because the proposed class lacked “an expressly defined class period,

28

and, indeed, any meaningful temporal limitation at all”); In re Sears, Roebuck & Co. Tools Mktg.
& Sales Pracs. Litig., No. 05 C 2623, 2007 WL 4287511, at *4 (N.D. Ill. Dec. 4, 2007) (denying
a plaintiff's motion for class certification in part because the proposed class “contain[ed] no time
limitation or indication of what the class period would be”). The Court notes that both of these
cases pertain to denial of class certification motions, not motions to strike class allegations. Given
the hesitancy of courts in the Third Circuit to strike class allegations before a class certification
motion is filed, and because this is not the “rare case” where no amount of discovery will allow
Plaintiffs to resolve deficiencies in class definitions under Rule 23, the Court will not strike
Plaintiffs’ class allegations prior to learning more about the nature of the claims at issue. See
Samuel v. Centene Corp., No. CV 23-1134-JLH-SRF, 2024 WL 3552869, at *14 (D. Del. July 26,
2024) (The ascertainability inquiry, which requires Plaintiffs to identify objective, reliable criteria
for identifying class members, is [] more appropriately addressed after fact discovery.”).
IV. CONCLUSION
For the forgoing reasons, the Court will deny Chambers’ motion. An Order of Court will
follow.
BY THE COURT:
we é ms oes □□□□□ □ □□ □□□ □□□
Ph ete
WILLIAM S. STICKMAN IV
UNITED STATES DISTRICT JUDGE

/ ié [on
Dated

29

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10761251. Public record. Not legal advice.