Commonwealth of Pennsylvania, acting by PA DEP v. Monsanto Co., Solutia Inc. and Pharmacia LLC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, acting :

by the Commonwealth of Pennsylvania :

Department of Environmental :

Protection and the Commonwealth of :

Pennsylvania Department of :

Conservation and Natural Resources, :

and the Pennsylvania Fish and Boat :

Commission, and the Pennsylvania :

Game Commission, :

Plaintiffs :

:

v. :

:

Monsanto Co., Solutia Inc., and :

Pharmacia LLC, : No. 668 M.D. 2020

Defendants : Argued: October 20, 2021

BEFORE: HONORABLE P. KEVIN BROBSON, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION BY

JUDGE COVEY FILED: December 30, 2021

Before this Court are Monsanto Co.’s (Monsanto), Solutia Inc.’s

(Solutia), and Pharmacia LLC’s (Pharmacia) (collectively, Defendants) Preliminary

Objections (POs) to the First Amended Complaint (Complaint) filed by the

Commonwealth of Pennsylvania (Commonwealth), acting by and through the

Commonwealth’s Department of Environmental Protection (DEP), Department of

Conservation and Natural Resources (DCNR), Fish and Boat Commission (FBC),

and Game Commission (GC) (collectively, Plaintiffs), filed in this Court’s original

jurisdiction. After review, this Court sustains the POs in part and overrules them in

part.

Background1

Solutia and Pharmacia have succeeded to the liabilities of predecessor

Monsanto2 which, from 1929 to 1977, manufactured, marketed, sold, and distributed

approximately 99% of the polychlorinated biphenyls (PCBs) used in the United

States (U.S.) - often under the trade names Aroclor, Pydraul, and Turbinol.3 See

1

Because this matter is before this Court on POs, the facts recited are as represented in

Plaintiffs’ Complaint.

2

Solutia is a wholly-owned subsidiary of Eastman Chemical Company. See Complaint ¶

30. Pharmacia is a wholly-owned subsidiary of Pfizer, Inc., and is the successor to the original

Monsanto Chemical Company (Old Monsanto). See Complaint ¶ 31. Hence, Defendants

collectively refer to themselves in this litigation as Pharmacia.

“Following a merger transaction that closed in 2018, Monsanto is a wholly-owned

subsidiary of Bayer AG.” Complaint ¶ 29. “Old Monsanto operated an agricultural products

business, a pharmaceutical and nutrition business, and a chemical products business.” Complaint

¶ 32. Now, Monsanto operates Old Monsanto’s agricultural products business, Solutia operates

Old Monsanto’s chemical products business, and Pharmacia operates Old Monsanto’s

pharmaceuticals business. See Complaint ¶¶ 33-41. “Although Solutia assumed and agreed to

indemnify [Monsanto] for certain liabilities related to the chemical[] business, Defendants have

also entered into agreements to share or apportion liabilities, and/or to indemnify one or more

entities, for claims arising from Old Monsanto’s chemical business, including the manufacture and

sale of [polychlorinated biphenyls].” Complaint ¶ 38. In conjunction with Solutia’s Chapter 11

Bankruptcy, “Solutia, Pharmacia, and [] Monsanto entered into several agreements under which

Monsanto continues to manage and assume financial responsibility for certain tort litigation and

environmental remediation related to the chemical[] business.” Complaint ¶ 39. In Monsanto’s

last filing with the United States Securities and Exchange Commission before Bayer AG acquired

it, Monsanto reported: “Monsanto has liabilities established for various product claims. With

respect to certain of these proceedings, Monsanto has established a reserve [($277 million as of

August 31, 2017,)] for the estimated liabilities.” Complaint ¶ 41.

3

“Monsanto sold its PCB products for a variety of uses, including household uses. PCBs

were sold for use in paints, caulks, inks, dyes, lubricants, sealants, plasticizers, coolants, hydraulic

fluids, fireproofing, and industrial electrical equipment such as capacitors and transformers, among

other applications. Monsanto also manufactured and sold various products incorporating their

PCB formulations.” Complaint ¶ 9; see also Complaint Exs. 14-15.

Notably, Old Monsanto also manufactured Dichlorodiphenyltrichloroethane (DDT)

(another now infamous chlorinated hydrocarbon similar to PCBs) and, as early as the 1940s, had

2

Complaint ¶¶ 1, 3-4, 47, Complaint Exs. 14-15. “PCBs are either oily liquids or

solids, and are colorless to light yellow[, and t]hey have no known smell or taste.”

Complaint ¶ 44. PCBs “are toxic and dangerous synthetic[4] organic chemical

compounds” harmful to human and animal health, and the environment. Complaint

¶¶ 1, 3; see also Complaint ¶ 42, Complaint Exs. 1-13, 16-19. “PCBs do not burn

easily, are hydrophobic (i.e., they do not dissolve in water but rather cluster

together), and bio-accumulate and bio-magnify in living tissue.” Complaint ¶ 48.

Monsanto “acknowledged as early as 1937 that PCBs produce systemic

toxic effects upon prolonged exposure.” Complaint ¶ 3; see also Complaint Exs. 1-

13, 16-19. In the 1950s, Monsanto’s medical director declared: “[W]e know

Aroclors are toxic[,]” and advised workers not to eat lunch in Monsanto’s PCB

department. Complaint Ex. 4; see also Complaint ¶ 3, Complaint Ex. 5. Due to

PCBs’ proven toxicity and environmental persistence, “production and, with limited

exceptions, use of PCBs was prohibited in the [U.S.] in 1979, when the U.S.

Environmental Protection Agency ([]EPA[]) promulgated final regulations banning

PCBs under the Toxic Substances Control Act [of 1976] ([]TSCA[]), enacted by the

U.S. Congress in 1976.”5 Complaint ¶ 2.

Despite that Monsanto knew early on of dangers associated with PCBs,

and/or knew or should have known that PCBs “substantially persist in the natural

environment rather than break down over time[,]” Complaint ¶ 7; that they “would

researched and was aware that DDT was extremely toxic to human and environmental health. See

Complaint ¶¶ 102-108, 121.

4

There are no known natural sources of PCBs. See Complaint ¶¶ 1, 43.

5

15 U.S.C. § 2601-2697. Section 2605(e)(3)(A)(i) of the TSCA declares: “[N]o person

may manufacture any [PCB] after two years after January 1, 1977[.]” 15 U.S.C. §

2605(e)(3)(A)(i); see also Dep’t of Gen. Servs. v. U.S. Min. Prods. Co., 927 A.2d 717, 721 n.2 (Pa.

Cmwlth. 2007), aff’d, 956 A.2d 967 (Pa. 2008) (“The [TSCA] banned PCB manufacturing in the

United States.”).

3

inevitably volatilize and leach, leak, and escape their intended applications,

contaminating runoff during naturally occurring storm and rain events and entering

groundwater, waterways, waterbodies, and other waters, sediment, soils, and plants,

as well as fish and other wildlife[,]” Complaint ¶ 6; and “that PCBs bio-accumulate

and bio-magnify in animal tissue, including in fish tissue and human tissue[, and] . . .

pose[] an increasingly hazardous threat to the health of the Commonwealth’s

residents[,]” Complaint ¶ 8; see also Complaint ¶ 48, Monsanto nevertheless

continued to market and sell its products containing PCBs. See Complaint ¶¶ 9-10,

91-115. In September 1969, Monsanto formed an Aroclor Ad Hoc Committee, the

minutes of which reflect: “[W]hile ‘there is no practical course of action that can so

effectively police the uses of these products as to prevent environmental

contamination . . . [t]here are . . . a number of actions which must be undertaken to

prolong the manufacture, sale and use of these particular Aroclors as well as to

protect the continued use of other members of the Aroclor series.’” Complaint ¶ 117

(quoting Complaint Ex. 10); see also Complaint ¶¶ 112-130. Monsanto also issued

talking points for employees to address customer questions and concerns about

PCBs in light of the research, and to encourage the customers to use rather than

return their existing Aroclor stock because Monsanto did not want to take it back.

See Complaint ¶ 130, Complaint Ex. 16.

According to the Complaint, “[t]he ordinary and intended application

of Monsanto’s commercial and household PCB products . . . has resulted in the

release of PCBs into the Commonwealth’s air, waters, and soils, due principally to

the chemical compound’s well-known tendency to volatilize or redistribute itself

across different environmental media.” Complaint ¶ 84. PCBs entered the air,

waters, sediments, and soils during their ordinary and prescribed uses. See

Complaint ¶¶ 49, 84-88. Specifically, PCBs gradually escaped and dispersed from

their intended applications (e.g., in road paint or caulking, into the natural

4

environment due to the chemical compounds’ inherent tendency to volatilize (i.e.,

emit vapors), particularly when exposed to heat - such as when road paint or building

materials are exposed to the sun over time). See Complaint ¶¶ 49, 84. PCB vapors

traveled through the air, eventually settling in nearby soil, sediment, or waterbodies;

they were released by the grinding, scraping, and removal of caulking and other

construction materials that include PCBs. See Complaint ¶¶ 49-50, 84-88. PCBs

also entered the environment from spills or leaks during chemical transport or fires

in transformers, capacitors, or other products containing PCBs, and from waste

burning in municipal or industrial incinerators. See Complaint ¶¶ 51, 86, 88. PCB-

contaminated wastes were disposed of in the ordinary course in landfills, from where

they easily escaped, leached, and leaked into the surrounding environment. See

Complaint ¶¶ 52, 88.

Plaintiffs allege in the Complaint that, once in the environment, PCBs

do not break down readily and may remain for decades absent remediation. See

Complaint ¶ 53. In water, PCBs travel along currents and attach to bottom sediment

or particles and evaporate into air or settle into sediment, water, and groundwater.

See Complaint ¶ 54. In soil, PCBs combine with soil organic matter and remain for

many years, and negatively affect plants and microorganisms; they also harm the

whole soil biosphere, which leads to human exposure through incidental ingestion,

inhalation, or dermal contact. See Complaint ¶ 55. As a gas, PCBs can accumulate

in the leaves and above-ground parts of plants and food crops. See Complaint ¶ 56.

PCBs are absorbed by small organisms, fish, marine animals in water, by animals

that eat them, and eventually by humans. See Complaint ¶ 57. “Human health

effects associated with PCB exposure include, without limitation, liver, thyroid,

dermal, and ocular changes, immunological alterations, neuro-developmental and

neurobehavioral changes, reduced birth weight, reproductive toxicity, and [(liver,

biliary tract, intestinal, and skin (melanoma))] cancer.” Complaint ¶ 61; see also

5

Complaint ¶¶ 62-74. PCBs are also highly toxic to fish and wildlife. See Complaint

¶¶ 75-83.

In the Complaint, Plaintiffs assert that Defendants knew PCBs were

dangerous contaminants when they manufactured, marketed, sold, and distributed

their PCB products, but failed to warn and actively deceived regulators and the

public concerning their hazards. See Complaint ¶¶ 90-146. Plaintiffs allege that the

ordinary and intended use of Defendants’ PCB mixtures has resulted in widespread

PCB contamination in the Commonwealth. See Complaint ¶¶ 84-89. “Between

1929 and 1977, Defendants sold a large volume of commercial PCBs and PCB-

containing products to various customers, including retail and secondary

manufacturers, within and near the Commonwealth.” Complaint ¶ 148.

“Monsanto’s PCB mixtures and PCB-containing products were used in countless

applications within the Commonwealth and leached, leaked, off-gassed, and escaped

their ordinary and intended applications to contaminate the Commonwealth’s

waters, sediments, soils, air, and fish and wildlife.” Complaint ¶ 151. “Because

Monsanto’s PCBs are environmentally persistent, they continue to circulate in the

Commonwealth’s natural resources to this day.” Id. “The Commonwealth has

already taken significant (and costly) steps to address PCB contamination of surface

water bodies and other natural resources, but widespread contamination continues to

extensively damage the Commonwealth’s natural resources and poses current and

future threats to human health and the well-being of the Commonwealth’s

environment and economy.” Complaint ¶ 152. “Like other states, [the

Commonwealth] prepares water quality monitoring and assessment reports every

other year to satisfy its listing and reporting obligations under [Sections 303(d) and

305(b) of] the Clean Water Act [(CWA).]”6 Complaint ¶ 153. “The 2020 Draft

6

33 U.S.C. §§ 1313(d), 1315(b).

6

Pennsylvania Integrated Water Quality Monitoring and Assessment Report (“2020

Integrated Report”) identifies more than 1,300 miles of [Commonwealth] streams

and more than 3,600 of [Commonwealth] lake acres as PCB-impaired - that is,

impaired for one or more beneficial uses due to excessive PCB contamination.” Id.

“Like [Commonwealth] waters, [Commonwealth] soils, sediments, and air also

suffer PCB contamination.” Complaint ¶ 158.

In the Complaint, Plaintiffs specifically argue:

11. Monsanto’s PCBs now widely contaminate the

Commonwealth’s natural resources. Addressing this

contamination has (and will continue to) cost the

Commonwealth many millions of dollars - costs that ought

to be borne by Monsanto, not the Commonwealth and its

residents.

12. More than 1,300 miles of streams and more than 3,600

lake acres in the Commonwealth have been identified as

“impaired” - that is they do not satisfy the criteria for one

or more beneficial uses - because the PCBs in those

waterbodies exceed the Commonwealth’s water quality

standards. Pursuant to the [CWA][7] and [T]he [] Clean

Streams Law [(CSL)],[8] the Commonwealth’s water

quality standards protect “[f]ishing” as a protected,

statewide water use. The [f]ishing water use is defined as

the use of the water for the legal taking of fish for

recreation or consumption. [Sections 93.3 and 93.4 of

DEP’s Regulations,] 25 Pa. Code §§ 93.3 and 93.4. The

water quality standards for [f]ishing, promulgated under

the [CSL], have been approved by the [EPA] in

accordance with [Section 303 of the CWA] for protection

of the nation’s waters.

13. Relatedly, the Commonwealth has been forced to issue

stringent PCB-specific fish and waterfowl consumption

advisories, recommending that the public either not eat

certain fish and waterfowl species at all or limit fish

consumption to, for example, just 1 meal per month or 6

meals per year for fish taken from nearly 40 segments of

7

33 U.S.C. §§ 1251-1388.

8

Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§ 691.1-691.1001.

7

various [Commonwealth] rivers and creeks, to the

detriment of [the Commonwealth’s] subsistence and sport

fishers and the Commonwealth itself.

14. Plaintiffs have incurred and will continue to incur

significant costs seeking to combat the PCB contamination

attributable to Defendants. Indeed, [the Commonwealth]

spent significant funds, time, and effort developing or

contributing to the development and implementation of at

least [13] Total Maximum Daily Load ([]TMDL[]) plans

targeting PCB reduction in local waterbodies.

15. Plaintiffs also have incurred and continue to incur

costs to monitor and enforce compliance with PCB limits

and conditions contained in individual [CWA] and [CSL]

permits. These limits and conditions were specifically

included in discharge permits as a means of ensuring not

only that the Commonwealth’s water quality standards for

PCBs are met and maintained, but also to prevent pollution

and assist the Commonwealth in achieving the TMDL for

PCBs in Commonwealth waters.

16. Plaintiffs also spent considerable time, effort, and

money in PCB remediation and removal projects, and

restoration of damaged natural resources.

17. The Commonwealth’s residents and natural resources,

including its water bodies and water systems, have been

and continue to be impacted by PCBs manufactured,

marketed, distributed, and introduced into commerce by

Defendants, and Plaintiffs will be forced to incur

significant costs to combat this contamination, costs which

rightfully should be borne by Defendants.

Complaint ¶¶ 11-17; see also Complaint ¶¶ 147-258.

On March 1, 2021, Plaintiffs filed the Complaint against Defendants in

this Court’s original jurisdiction alleging causes of action for public nuisance (see

Complaint ¶¶ 259-276), trespass (see Complaint ¶¶ 320-324), design defect (see

Complaint ¶¶ 277-292), failure to warn and instruct (see Complaint ¶¶ 293-306),

negligence (see Complaint ¶¶ 307-319), and unjust enrichment (see Complaint ¶¶

325-327).

8

On April 1, 2021, Defendants filed the POs and supporting brief,

claiming that Plaintiffs lack standing to bring this action (PO 1, ¶¶ 16-32),9 and that

Plaintiffs’ causes of action for public nuisance (PO 2, ¶¶ 33-40), trespass (PO 3, ¶¶

41-45), design defect (PO 4, ¶¶ 46-54), failure to warn and instruct (PO 5, ¶¶ 55-56),

negligence (PO 6, ¶¶ 57-62), unjust enrichment (PO 7, ¶¶ 63-64), continuing

tort/harm (PO 8, ¶¶ 65-69), and damages (PO 9, ¶¶ 70-74) are legally insufficient.10

On May 21, 2021, Plaintiffs filed their answer opposing Defendants’

POs. On June 15, 2021, Defendants filed their reply brief in support of the POs. On

September 20, 2021, Plaintiffs filed their opposing brief.

Discussion

In ruling on preliminary objections, we must accept as true

all well-pleaded material allegations in the [complaint], as

well as all inferences reasonably deduced therefrom. The

Court need not accept as true conclusions of law,

unwarranted inferences from facts, argumentative

allegations, or expressions of opinion. In order to sustain

preliminary objections, it must appear with certainty that

the law will not permit recovery, and any doubt should be

resolved by a refusal to sustain them.

A preliminary objection in the nature of a demurrer admits

every well-pleaded fact in the complaint and all inferences

reasonably deducible therefrom. It tests the legal

sufficiency of the challenged pleadings and will be

sustained only in cases where the pleader has clearly failed

to state a claim for which relief can be granted. When

ruling on a demurrer, a court must confine its analysis to

the complaint.

9

Pennsylvania Rule of Civil Procedure (Rule) 1028(a)(5) authorizes Defendants to object

to the Complaint on the basis that Plaintiffs lack standing. See Pa.R.Civ.P. 1028(a)(5).

10

Rule 1028(a)(4) authorizes Defendants to object to the Complaint on the basis that

Plaintiffs’ public nuisance, trespass, design defect, failure to warn and instruct, negligence, unjust

enrichment, continuing tort/harm, and damage claims are legally insufficient. See Pa.R.Civ.P.

1028(a)(4).

9

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (emphasis added;

citations omitted). “‘[C]ourts reviewing preliminary objections may not only

consider the facts pled in the complaint, but also any documents or exhibits attached

to it.’ Allen v. Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 2014).” Foxe v. Pa.

Dep’t of Corr., 214 A.3d 308, 311 n.1 (Pa. Cmwlth. 2019).

PO 1 (Lack of Standing)

Defendants argue that, with the limited exception of the

Commonwealth’s assertion of parens patriae for abatement of a public nuisance,

which does not confer substantive rights, neither the Commonwealth nor its agencies

have authority to bring this action under the other common law theories or for tort

damages as a function of its sovereign interest to protect the Commonwealth’s

citizens. Thus, they request that this Court dismiss all but Plaintiffs’ public nuisance

cause of action. Defendants also contend that Plaintiffs cannot invoke parens

patriae standing, yet seek damages to Commonwealth property in its proprietary

capacity.

Generally,

[i]n Pennsylvania, a party to litigation must establish as a

threshold matter that he or she has standing to bring an

action. Stilp v. Commonwealth, . . . 940 A.2d 1227 . . .

([Pa.] 2007). Standing in Pennsylvania is a jurisprudential

matter. City of Phila[.] v. Commonwealth, . . . 838 A.2d

566 . . . ([Pa.] 2003). In our Court’s landmark decision on

standing, [Wm. Penn Parking Garage, Inc. v. City of

Pittsburgh, 346 A.2d 269 (Pa. 1975) (plurality),] we

explained that a person who is not adversely impacted by

the matter he or she is litigating does not enjoy standing to

initiate the court’s dispute resolution machinery.

Markham v. Wolf, 136 A.3d 134, 140 (Pa. 2016) (footnote omitted).

The concept of ‘standing’ in its accurate legal sense, is

concerned only with the question of who is entitled to

make a legal challenge to the matter involved. . . .

10

Although our law of standing is generally articulated in

terms of whether a would-be litigant has a ‘substantial

interest’ in the controverted matter, and whether he has

been ‘aggrieved’ or ‘adversely affected’ by the action in

question, we must remain mindful that the purpose of the

‘standing’ requirement is to insure that a legal challenge is

by a proper party. . . . The terms ‘substantial interest’,

‘aggrieved’ and ‘adversely affected’ are the general, usual

guides in that regard, but they are not the only ones. For

example, when the legislature statutorily invests an

agency with certain functions, duties and

responsibilities, the agency has a legislatively

conferred interest in such matters. From this it must

follow that, unless the legislature has provided

otherwise, such an agency has an implicit power to be

a litigant in matters touching upon its concerns. In

such circumstances the legislature has implicitly

ordained that such an agency is a proper party litigant,

i.e., that it has ‘standing.’

Corman v. Nat’l Collegiate Athletic Ass’n, 74 A.3d 1149, 1160-61 (Pa. Cmwlth.

2013) (quoting Pa. Game Comm’n v. Dep’t of Env’t Res., 555 A.2d 812, 815 (Pa.

1989) (emphasis added)).

Here, Plaintiffs allege in the Complaint that, as trustees of the

Commonwealth’s public natural resources, the Commonwealth, DEP, and DCNR

have a duty to protect and preserve the Commonwealth’s public natural resources,

and to prevent and abate nuisances and hazards to the public health, safety, and

welfare, and to the environment. See Complaint ¶¶ 21-22. “Through [] DEP and []

DCNR, the Commonwealth also brings this action pursuant to its inherent parens

patriae authority to remedy an injury to its ‘quasi-sovereign interest’ in the physical

and economic health and well-being of a substantial segment of its population.”

Complaint ¶ 22. Plaintiffs further declare:

23. PCB contamination attributable to Defendants

constitutes injury to the Commonwealth’s natural

resources and other property, for which the Plaintiffs seek

damages and other relief, including on behalf of the

11

Commonwealth and on behalf of its residents as trustees

of the Commonwealth’s public natural resources, pursuant

to their police powers, and, through [] DEP and [] DCNR,

under parens patriae authority.

24. [] DEP is a department within the Executive Branch of

the Commonwealth government, vested with the authority

to protect the environment, prevent and remediate

pollution, and protect the public health, comfort, safety,

and welfare, pursuant to its police powers and its parens

patriae authority under the [] Hazardous Sites Cleanup

Act [(HSCA)], Act of October 18, 1988, P.L. 756 . . . , [as

amended,] 35 P.S. §§ 6020.101-6020[.1305].

25. [] DCNR is a department within the Executive Branch

of the Commonwealth government, vested with the

authority to conserve and sustain the Commonwealth’s

public natural resources for the use and enjoyment of

present and future generations, pursuant to its police

powers and its parens patriae authority under the

Pennsylvania Conservation and Natural Resources Act

[(CNRA)], Act of June 28, 1995, P.L. 89, No. 18, [as

amended,] 71 P. S. §§ 1340.101-1340.1103.

26. The [FBC] is an independent state agency with the

mission to protect, conserve, and enhance the

Commonwealth’s aquatic resources and to regulate and

provide fishing and boating opportunities within the

Commonwealth, pursuant to the [] Fish and Boat Code of

1980 [(Fish and Boat Code)], . . . 30 Pa.C.S. §§ 101-7314.

27. The [GC] is an independent state agency with the

mission to manage and protect wildlife and wildlife habitat

and to inform and educate the public on wildlife and safe

hunting practices within the Commonwealth, pursuant to

the Pennsylvania Game and Wildlife Code [(Game and

Wildlife Code)], . . . 34 Pa.C.S. §§ 101-2965.

28. [] Plaintiffs also bring this action against the

Defendants pursuant to their authority within [Section

204(c) of] the Commonwealth Attorneys Act [(CAA), Act

of October 15, 1980, P.L. 950, as amended], 71 P.S. § 732-

204(c).

Complaint ¶¶ 24-28.

12

Commonwealth Standing as Parens Patriae

This Court has held that “[t]he Commonwealth has parens patriae[11]

standing whenever it asserts quasi-sovereign interests,[12] which are interests that the

Commonwealth has in the well-being of its populace.” Commonwealth ex rel.

Corbett v. Citizens All. for Better Neighborhoods, Inc., 983 A.2d 1274, 1277 (Pa.

Cmwlth. 2009); see also Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,

458 U.S. 592, 607 (1982) (“[A] [s]tate has a quasi-sovereign interest in the health

and well-being - both physical and economic - of its residents in general.”).

One helpful indication in determining whether an alleged

injury to the health and welfare of its citizens suffices to

give the [s]tate standing to sue as parens patriae is

whether the injury is one that the [s]tate, if it could, would

likely attempt to address through its sovereign lawmaking

powers.

Alfred L. Snapp & Son, Inc., 458 U.S. at 607. “A quasi-sovereign interest must be

sufficiently concrete to create an actual controversy between the [s]tate and the

defendant[,]” which is determined based on the facts of each case. Id. at 602; see

11

“Parens patriae powers” refer[] to the “ancient powers of

guardianship over persons under disability and of protectorship of

the public interest which were originally held by the Crown of

England as ‘father of the country,’ and which as part of the common

law devolved upon the states and federal government.” In re

Pruner’s Est[.], . . . 136 A.2d 107, 109 ([Pa.] 1957) (citations

omitted).

In re Milton Hershey Sch. Tr., 807 A.2d 324, 326 n.1 (Pa. Cmwlth. 2002).

12

“Quasi-sovereign interests stand apart from . . . proprietary [(i.e., non-sovereign,

ownership)] interests[.]” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592,

602 (1982); see also Commonwealth ex rel. Pappert v. TAP Pharm. Prods., Inc., 885 A.2d 1127

(Pa. Cmwlth. 2005). “[T]he right of a [s]tate to sue as parens patriae is not limited to suits to

protect only its proprietary interests; a [s]tate also may maintain an action parens patriae on behalf

of its citizens to protect its so-called ‘quasi-sovereign’ interests.” Maine v. M/V Tamano, 357 F.

Supp. 1097, 1099-100 (D. Me. 1973).

13

also Commonwealth ex rel. Pappert v. TAP Pharm. Prods., Inc., 885 A.2d 1127 (Pa.

Cmwlth. 2005) (TAP II).

Moreover, the U.S. Supreme Court has expressly held:

In [its quasi-sovereign] capacity[,] the state has an interest

independent of and behind the titles of its citizens, in all

the earth and air within its domain. It has the last word as

to whether its mountains shall be stripped of their forests

and its inhabitants shall breathe pure air.

Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907). The Pennsylvania Supreme

Court affirmed the Pennsylvania Superior Court’s holding that “the preservation of

the waters of the state from pollution, involving danger to health, is a proper subject

for the exercise of the police power, [and] cannot be seriously questioned.”

Commonwealth v. Emmers, 70 A. 762 (Pa. 1908). Certainly, that ruling applies to

preservation of state sediments, soils, air, fish, and wildlife.

Defendants concede that the Commonwealth has a quasi-sovereign

interest in the abatement of public nuisances to prevent injury or potential injury to

its citizens’ general health and well-being. See Defendants’ POs ¶ 16; Defendants’

Supporting Br. at 7-10; see also Alfred L. Snapp & Son, Inc. Moreover,

Pennsylvania law does not appear to wholly restrict other types of claims that the

Commonwealth may pursue as parens patriae, as long as the claims are brought to

protect the Commonwealth’s quasi-sovereign interest for its citizens’ well-being.

See TAP II (wherein this Court held that the Commonwealth had a quasi-sovereign

interest in seeking damages under the Unfair Trade Practices and Consumer

Protection Law,13 and that the Commonwealth stated sufficient causes of action for

unjust enrichment, fraud, and misrepresentation); see also Alfred L. Snapp & Son,

Inc., 458 U.S. at 604-05 (“Although there are numerous examples of [] parens

13

Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §§ 201-1-201-10.

14

patriae suits [to abate public nuisances], . . . parens patriae interests extend well

beyond the prevention of such traditional public nuisances.”).

Other jurisdictions have afforded states standing in parens patriae to

bring common law actions and/or for tort damages against companies that

purportedly contaminated the states’ natural resources. See State (of Maryland) v.

Exxon Mobil Corp., 406 F. Supp. 3d 420 (D. Md. 2019) (Exxon Mobil Corp.)

(wherein the U.S. District Court in Maryland denied demurrers, thereby permitting

the state to bring claims - as parens patriae, as trustee of the state’s natural resources,

and under Maryland’s environmental standing act - against 65 defendants for strict

liability (defective design, failure to warn, abnormally dangerous activity), public

nuisance, trespass (only for properties in the state’s possession), negligence, and

violations of various state environmental statutes, to redress alleged contamination

of the state’s waters by gasoline additive methyl tertiary butyl ether (MTBE) and to

seek damages and costs for testing, cleanup, monitoring, and restoration of the

state’s waters); Rhode Island v. Atl. Richfield Co., 357 F. Supp. 3d 129 (D.R.I. 2018)

(wherein the U.S. District Court in Rhode Island allowed the state to proceed with

common law tort claims, strict liability - failure to warn, nuisance, and trespass

actions against various oil and chemical companies for the widespread MTBE

contamination of the state’s waters); State (of New Hampshire) v. Exxon Mobil

Corp., 126 A.3d 266 (N.H. 2015) (wherein the state sued Exxon for negligence, strict

liability for design defect, and strict liability for failure to warn, seeking damages for

groundwater contamination caused by MTBE); Maine v. M/V Tamano, 357 F. Supp.

1097 (D. Me. 1973) (the U.S. District Court in Maine allowed the state and its board

of environmental protection to sue a vessel, her owners, captain, and various others

to recover damages incurred as a result of the discharge of approximately 100,000

gallons of oil into its waters because the state had sufficient independent interest in

15

its coastal waters and marine life to permit it to seek damages in its parens patriae

capacity). Although not binding on this Court,14 those decisions are persuasive.15

The Rhode Island Court summarized:

[The d]efendants[’] only original objection is that the

[s]tate lacks the possessory interest required to complain

of a trespass to polluted land and water it does not own.

See Restatement (Second) of Torts [(Second

Restatement)] § 157 (Am. Law Inst. 1965) (defining

“possession” for purposes of trespass liability). And

indeed the [s]tate is seeking damages not only for the harm

done to property it owns - which [the d]efendants admit is

not vulnerable to the present criticism - but for that to

private property as well. At first blush, the [s]tate’s bid to

base liability here on property it does not possess seems to

buck black-letter trespass law. The [s]tate outmaneuvers

this potential obstacle by bringing its case as parens

patriae.

14

[W]hile decisions of the [U.S.] Supreme Court interpreting federal

statutes are binding on this Court, the same is not true of decisions

by the lower federal courts. See Krentz v. Consol. Rail Corp., . . .

910 A.2d 20, 33 n.15 ([Pa.] 2006) (“The decisions of the [U.S.]

Supreme Court interpreting federal statutes are binding on this

Court.”); Hall v. Pa. Bd. of Prob. & Parole, . . . 851 A.2d 859, . . .

([Pa.] 2004). This does not mean we are compelled to ignore on-

point Third Circuit decisions or, for that matter, decisions of any

federal court of appeals, interpreting a federal statute. To the

contrary, such decisions in factually similar cases with persuasive

legal analysis may inform our disposition of the matter before us. In

re Stevenson, . . . 40 A.3d 1212, 1221 ([Pa.] 2012) (“The

Commonwealth Court was not incorrect in observing that the

pronouncements of the lower federal courts have only persuasive,

not binding, effect on the courts of this Commonwealth.”).

Cole v. Pa. Dep’t of Env’t Prot., 257 A.3d 805, 813 (Pa. Cmwlth. 2021). This Court relies on the

federal cases cited herein accordingly.

15

Despite their claims to the contrary, Defendants do not cite to any controlling case law

prohibiting the Commonwealth from seeking redress under other common law theories or for tort

damages as a function of its quasi-sovereign interest to protect the Commonwealth’s citizens from

harm related to PCBs.

16

A state may proceed [in] parens patriae to protect its

“quasi-sovereign” interests, which are the “set of interests

that the [s]tate has in the well-being of its populace.”

Alfred L. Snapp & Son, Inc. . . . , 458 U.S. [at] 602 . . . .

These interests include one in the integrity of a state’s

natural resources. See [id.] at 604-05 . . . . As parens

patriae, the [U.S.] Supreme Court has said, “the state has

an interest independent of and behind the titles of its

citizens, in all the earth and air within its domain.” . . .

Tenn. Copper Co., 206 U.S. [at] 237 . . . . “It has the last

word as to whether its mountains shall be stripped of their

forests and its inhabitants shall breathe pure air.” Id. In

Tennessee Copper Company, for example, the Court held

that Georgia could maintain an action against copper

companies whose operations polluted the state’s air,

despite the fact that Georgia owned “very little of the

territory alleged to be affected” and “elements that would

be relied upon in a suit between fellow-citizens as a

ground for equitable relief [were] wanting.” Id. at 237-

39[.]

Likewise in Missouri v. Illinois, [180 U.S. 208 (1901),]

where the Court allowed Missouri to sue Illinois for

leaving sewage to flow down the Mississippi River,

thereby “poison[ing] the water supply of the inhabitants of

Missouri.” [Id. at] 243, 248 . . . . “[I]f the health and

comfort of the inhabitants of a state are threatened,” the

[Missouri] Court wrote, “the state is the proper party to

represent and defend them.” Id. at 241 . . . . Closer in time

and place, the Rhode Island Superior Court found that the

[s]tate had parens patriae standing to pursue the lead-

pigment manufacturers in tort to avenge damage inflicted

by them on the state’s children. See State [(of Rhode

Island)] v. Lead Indus. Ass’n, [Inc.,] No. 99-5226, 2001

WL 345830, at *3-4 (R.I. Super.[, filed] Apr. 2, 2001)

(Silverstein, J.), rev’d on other grounds, 951 A.2d [428

(R.I. 2008)]. And even more recently, the New Hampshire

Supreme Court held that its state had “parens patriae

standing to bring contamination suits,” including for

trespass, “against the MTBE defendants on behalf of the

residents of New Hampshire.” New Hampshire v. City of

Dover, . . . 891 A.2d 524, 527, 530 ([N.H.] 2006). And for

that reason, the [New Hampshire Supreme C]ourt allowed

the state to recover damages for harm done by MTBE to

17

privately owned wells. New Hampshire v. Hess Corp., . .

. 20 A.3d 212, 215-16 ([N.H.] 2011).

Here, [Rhode Island] - properly proceeding as parens

patriae - may also protect its pseudo-sovereign interest in

the welfare of its citizens and integrity of its natural

resources. See Lead Indus. Ass’n, 2001 WL 345830, at

*4 (“[Q]uasi-sovereign interests include a state’s interests

in its citizens’ health, safety, and welfare as well as in a

healthful environment.”). One way it may do so is seeking

relief for the invasion of its citizens’ possessory interests

by MTBE in an action for trespass. See New Mexico v.

Gen. Elec. Co., 467 F.3d 1223, 1243 n.30 (10th Cir. 2006)

(noting that the parens patriae doctrine provides “a state

with standing to sue for damages to a broader range of

natural resources because it does not require state

ownership of such resources”). While possessory interests

are usually for individual owners themselves to protect,

when the harm to such interests is as widespread as alleged

in the [s]tate’s complaint, it counts as injury not just to the

affected individuals, but to the state as a whole. See

Missouri, 180 U.S. at 241 . . . (“[S]ubstantial impairment

of the health and prosperity of the towns and cities of the

state situated on the Mississippi river, including its

commercial metropolis, would injuriously affect the entire

state.”); see also Massachusetts v. Bull HN Info. Sys., Inc.,

16 F. Supp. 2d 90, 102 (D. Mass. 1998) (allowing

[Massachusetts] to bring parens patriae suit where it had

“alleged conduct that has potentially wide-spread impacts

. . . that [were] unlikely to be addressed fully if the

controversy [was] cabined in the realm of private

litigation”).

Rhode Island, 357 F. Supp. 3d at 143-44 (internal citations omitted).

Moreover, in examining whether a state can bring a parens patriae suit

for damages, the U.S. District Court in Maine observed: “[T]he plain implication to

be drawn from [the] cases is that, absent some substantive bar, the [c]ourt was

willing to allow damages to a [s]tate suing as parens patriae.” Maine, 357 F. Supp.

at 1101. In response to the defendants’ claims that the state’s interests were too

18

speculative to be reduced to money damages, the Maine Court held that was a matter

of proof to be met at trial, rather than a motion to dismiss. See id.

Persuaded by the well-reasoned decisions cited above, and applying the

same rationale here, this Court holds that the Commonwealth has sufficiently

asserted its own quasi-sovereign interest in preserving its waters, soils, air, fish,

wildlife, and the health and well-being of its citizens in the Complaint and, thus, has

parens patriae standing to bring the instant action.

Commonwealth Standing as Trustee

Article I, section 27 of the Pennsylvania Constitution, known as the

Environmental Rights Amendment (ERA), declares:

The people have a right to clean air, pure water, and to the

preservation of the natural, scenic, historic and esthetic

values of the environment. Pennsylvania’s public natural

resources are the common property of all the people,

including generations yet to come. As trustee of these

resources, the Commonwealth shall conserve and

maintain them for the benefit of all the people.

Pa. Const. art. I, § 27. The ERA “establishes a common law trust, with the

Commonwealth as trustee and the public natural resources managed by the

Commonwealth as the corpus of the trust. The trustee is obligated to conserve,

maintain and manage the corpus of the trust for the benefit of the trust’s beneficiaries

- the people [-, ]” Marcellus Shale Coal. v. Dep’t of Env’t Prot., 193 A.3d 447, 470

(Pa. Cmwlth. 2018) (citations omitted), “including future generations.”16 Funk v.

16

Accordingly, the Pennsylvania Supreme Court recently confirmed that “income

generated from the revenue streams [from use of the trust assets] must be returned to the corpus as

a matter of trust law[,]” and may not be diverted to the General Fund for non-trust purposes. Pa.

Env’t Def. Found. v. Commonwealth, 255 A.3d 289, 314 (Pa. 2021).

19

Wolf, 144 A.3d 228, 248 (Pa. Cmwlth. 2016), aff’d, 158 A.3d 642 (Pa. 2017)

(emphasis omitted).

As trustee, the Commonwealth has a duty to refrain

from permitting or encouraging the degradation,

diminution, or depletion of public natural resources,

whether such degradation, diminution, or depletion would

occur through direct state action or indirectly, e.g.,

because of the state’s failure to restrain the actions of

private parties. In this sense, the third clause of the

[ERA] is complete because it establishes broad but

concrete substantive parameters within which the

Commonwealth may act.

Robinson Twp., Wash. Cnty. v. Commonwealth, 83 A.3d 901, 957 (Pa. 2013)

(emphasis added). The Pennsylvania Supreme Court recognized: “Insofar as the

Commonwealth always had a recognized police power to regulate the use of land,

and thus could establish standards for clean air and clean water consistent with the

requirements of public health, [the ERA] is merely a general reaffirmation of past

law.” Shapp v. Nat’l Gettysburg Battlefield Tower, Inc., 311 A.2d 588, 592 (Pa.

1973).

“[T]he public trust provisions of [the ERA] are self-executing[]” and,

therefore, do not require implementing legislation to be effective. Pa. Env’t Def.

Found. v. Commonwealth, 161 A.3d 911, 937 (Pa. 2017). Further, “[t]he standing

requirements of [the ERA] are normally to be broadly construed[.]” Pa. Game

Comm’n v. Dep’t of Env’t Res., 509 A.2d 877, 883-84 (Pa. Cmwlth. 1986), aff’d,

555 A.2d 812 (Pa. 1989).

Here, Plaintiffs assert that, “[b]y definition, Plaintiffs must be

empowered to proceed with affirmative litigation, including prosecuting tort claims,

to recover the damages to the trust’s corpus so that they may be remedied.”

Plaintiffs’ Br. at 12 (emphasis added). In the absence of Pennsylvania-specific case

law, Plaintiffs rely on court decisions from other jurisdictions to support that

20

conclusion. In particular, State of Maryland, Department of Natural Resources v.

Amerada Hess Corp., 350 F. Supp. 1060 (D. Md. 1972), wherein the state, its

department of natural resources, and its port administration sued to recover damages

incurred as a result of an oil discharge into the Baltimore Harbor.

In response to a standing challenge, the Amerada Hess Corp. Court

concluded that a state’s ability to protect its natural resource cannot be limited to its

power to legislate. The Amerada Hess Corp. Court relied on the concurring opinion

in Toomer v. Witsell, 334 U.S. 385 (1948), which specified: “A [s]tate may care for

its own in utilizing the bounties of nature within her borders because it has technical

ownership of such bounties or, when ownership is in no one, because the [s]tate may

for the common good exercise all the authority that technical ownership ordinarily

confers.” Toomer, 334 U.S. at 408 (Frankfurter, J., concurring) (emphasis added).

The Amerada Hess Corp. Court held that Maryland’s technical ownership of its

waters gave it the legal right to sue on the public’s behalf, stating that “if the [s]tate

is deemed to be the trustee of the waters, then, as trustee, the [s]tate must be

empowered to bring suit to protect the corpus of the trust - i.e., the waters - for the

beneficiaries of the trust - i.e., the public.” Id. at 1067. Accordingly, based on the

foregoing persuasive rationale, this Court concludes that the Commonwealth also

has trustee standing to bring the instant action pursuant to the ERA.

DEP and DCNR Standing as Parens Patriae

Pennsylvania law does not expressly preclude Commonwealth agencies

from having parens patriae standing. Moreover, in Pennsylvania Department of

Banking v. NCAS of Delaware, LLC, 995 A.2d 422 (Pa. Cmwlth. 2010), this Court

examined whether the Department of Banking had parens patriae standing.

Although the NCAS of Delaware, LLC Court ultimately determined that the

Department of Banking lacked parens patriae standing in the circumstances

21

presented in that case, the Court’s reasoning provides guidance for the appropriate

analysis to be applied. The NCAS of Delaware, LLC Court looked at whether the

agency pled an interest beyond that of an individual citizen; specifically, after setting

aside individual citizens’ claims, whether the agency still had a concrete,

independent, and direct quasi-sovereign interest to protect, and whether the sought-

after damages were distinct from those available to individual citizens. See id.

In the instant matter, Plaintiffs specifically assert in the Complaint that

DEP is “vested with the authority to protect the environment, prevent and remediate

pollution, and protect the public health, comfort, safety, and welfare, pursuant to its

police powers and its parens patriae authority under the [HSCA].” Complaint ¶ 24.

The HSCA, among the purposes of which is to “[p]rotect the public health, safety

and welfare and the natural resources of this Commonwealth from the short-term

and long-term effects of the release of hazardous substances and contaminants into

the environment[,]” Section 102(12)(vi) of the HSCA, 35 P.S. § 6020.102(12)(vi),

also affords DEP “independent authority . . . to conduct site investigations and

assessments[,] . . . to require the replacement of water supplies contaminated by

[hazardous substances or contaminants, and] to take other appropriate response

actions and recover from responsible persons its costs for conducting the responses.”

35 P.S. § 6020.102(12)(ii). Section 301(1) of the HSCA specifically authorizes DEP

to “[d]evelop, administer and enforce a program to provide for the investigation,

assessment and cleanup of hazardous sites in this Commonwealth[.]” 35 P.S. §

6020.301(1). Section 301(10) of the HSCA allows DEP to “[i]nstitute, in a court of

competent jurisdiction, proceedings to compel compliance[.]” 35 P.S. §

6020.301(10). Section 1101 of the HSCA makes any release of a hazardous

substance or a violation of any DEP provision, regulation, or order a public nuisance,

and any person allowing such release or violation is subject to related response costs.

See 35 P.S. § 6020.1101.

22

In addition, the CSL, among the purposes of which is “not only to

prevent further pollution of the waters of the Commonwealth, but also to reclaim

and restore to a clean, unpolluted condition every stream in [the Commonwealth]

that is presently polluted[,]” Section 4(3) of the CSL, 35 P.S. § 691.4(3), expressly

allows DEP to issue orders necessary to enforce the CSL and to impose penalties

against persons who discharge or put or place substances into Commonwealth waters

that cause or contribute to pollution (which is a public nuisance). See Section 610

of the CSL, 35 P.S. § 691.610. Section 605 of the CSL authorizes DEP to assess

civil penalties for violating the CSL or DEP’s Regulations. See 35 P.S. § 691.605.

Plaintiffs also allege in the Complaint that DCNR is “vested with the

authority to conserve and sustain the Commonwealth’s public natural resources for

the use and enjoyment of present and future generations, pursuant to its police

powers and its parens patriae authority under the [CNRA].” Complaint ¶ 25.

Section 101(b)(1) of the CNRA reflects the General Assembly’s intention that

DCNR was created “to serve as a cabinet-level advocate for our [s]tate parks, forests,

rivers, trails, greenways and community recreation and heritage conservation

programs to provide more focused management of the Commonwealth’s recreation,

natural and river environments.” 71 P.S. § 1340.101(b)(1).

The provision further declares that DCNR’s primary mission is

to maintain, improve and preserve [s]tate parks, to manage

[s]tate forest lands to assure their long-term health,

sustainability and economic use, to provide information on

[the Commonwealth’s] ecological and geologic resources

and to administer grant and technical assistance programs

that will benefit rivers[’] conservation, trails and

greenways, local recreation, regional heritage

conservation and environmental education programs

across [the Commonwealth].

Id.

23

The CNRA also authorizes DCNR, inter alia, “to assist in the

conservation, enhancement and restoration of the river resources of this

Commonwealth and may make grants and provide technical assistance to local

governments and nonprofit organizations for river conservation projects[,]” Section

307(a) of the CNRA, 71 P.S. § 1340.307(a); acquire, dispose of, and manage state

forest lands, see Section 302 of the CNRA, 71 P.S. § 1340.302; “[t]o hold, manage,

control, protect, maintain, utilize, develop[,] and regulate the occupancy and use of

all lands, heretofore or hereafter acquired, owned, leased[,] and maintained as [s]tate

forests,” 71 P.S. § 1340.302(a)(3); to appoint officers and wardens authorized to

protect state forests and parks from trespassing, or other offenses against the laws or

regulations established for the protection of state forests and timber lands, and fish

or game contained therein, see 71 P.S. § 1340.302(c)-(g); “[t]o supervise, maintain,

improve, regulate, police and preserve all parks belonging to the Commonwealth[,]”

Section 303(a)(1) of the DCNR, 71 P.S. § 1340.303(a)(1); to appoint and

commission persons to preserve order in the parks, who have the authority to arrest

for observed violations, see 71 P.S. § 1340.303(7)(i); “[t]o serve subpoenas issued

for any examination, investigation or trial under any law of this Commonwealth[,]”

71 P.S. § 1340.303(7)(iv); and to promote environmental education, see Section 311

of the DCNR, 71 P.S. § 1340.311. Although DCNR appears to be more of an

advocate and less of an enforcer, it nevertheless is responsible for overseeing and

managing natural resources affected by Defendants’ conduct.

Applying the NCAS of Delaware, LLC considerations here, this Court

concludes that, setting aside any individual citizens’ potential claims, DEP and

DCNR have concrete, independent, and direct quasi-sovereign interests under the

HSCA, CNRA, and the CSL beyond that of individual Commonwealth citizens, the

violations for which they may be entitled to damages. Accordingly, DEP and DCNR

24

hold legitimate quasi-sovereign governmental interests, thus establishing parens

patriae standing in the instant action.

DEP, DCNR, FBC, and GC as Trustees

Although the Commonwealth is the named trustee of public natural

resources under the ERA, and individual agencies and departments are not

referenced therein, see Funk, the Pennsylvania Supreme Court has described:

The drafters and the citizens of the Commonwealth who

ratified the [ERA] . . . articulated the people’s rights and

the government’s duties to the people in broad and flexible

terms that would permit not only reactive but also

anticipatory protection of the environment for the benefit

of current and future generations. Moreover, public

trustee duties were delegated concomitantly to all

branches and levels of government in recognition that

the quality of the environment is a task with both local and

statewide implications, and to ensure that all

government neither infringed upon the people’s rights

nor failed to act for the benefit of the people in this area

[was] crucial to the well-being of all Pennsylvanians.

Robinson Twp., 83 A.3d at 963 (emphasis added).

This Court has also recognized:

The second provision of the ERA impels executive branch

agencies [(i.e., DEP and DCNR)] and departments to act

in support of conserving and maintaining public natural

resources, but it cannot operate on its own to “expand the

powers of a statutory agency . . . .” Cmty. Coll. of Del[.]

Cnty. [v. Fox], 342 A.2d [468,] 482 [(Pa. Cmwlth. 1975)].

Thus, courts assessing the duties imposed upon executive

branch departments and agencies by the ERA must remain

cognizant of the balance the General Assembly has

already struck between environmental and societal

concerns in an agency or department’s enabling act. Id. at

473.

25

Funk, 144 A.3d at 235. Accordingly, DEP has trustee standing under the ERA

pursuant to the HSCA and the CSL, and DCNR has trustee standing under the ERA

pursuant to the CNRA to protect the Commonwealth’s natural resources.

Plaintiffs also represent in the Complaint that the FBC’s mission is “to

protect, conserve, and enhance the Commonwealth’s aquatic resources and to

regulate and provide fishing and boating opportunities within the Commonwealth,

pursuant to the [Fish and Boat Code].” Complaint ¶ 26. The General Assembly has

expressly charged the FBC with administering and enforcing the Fish and Boat Code

and other Commonwealth laws relating to, inter alia, protection of fish and fishery

and boating interests. See 30 Pa.C.S. § 321. The FBC also has “[t]he entire control

of all lands or waters owned, leased or otherwise controlled . . . [and] may

promulgate such rules and regulations for its use and protection as it deems necessary

or in the best interests of the Commonwealth.” 30 Pa.C.S. § 741(a). Those who

cause damage to FBC property, either intentionally or recklessly, may be criminally

charged and fined, and restitution assessed. See 30 Pa.C.S. § 703. In addition, the

FBC may appoint waterways conservation officers and deputies with law

enforcement powers, see 30 Pa.C.S. § 901, who “are authorized to enforce all the

laws of this Commonwealth, and rules and regulations promulgated thereunder,

relating to game, parks and forestry, under the direction of the [GC] and of [DCNR],

respectively.” 30 Pa.C.S. § 902.

Regarding the GC, Plaintiffs assert in the Complaint that the GC’s

mission is “to manage and protect wildlife and wildlife habitat and to inform and

educate the public on wildlife and safe hunting practices within the Commonwealth,

pursuant to the [Game and Wildlife Code].” Complaint ¶ 27. The Game and

Wildlife Code specifies:

The proprietary ownership, jurisdiction and control of

game or wildlife living free in nature is vested in the

26

Commonwealth by virtue of the continued expenditure of

its funds and its efforts to protect, propagate, manage and

preserve the game or wildlife population as a renewable

natural resource of this Commonwealth.

34 Pa.C.S. § 2161(a).

The Game and Wildlife Code also states: “The [GC is] the agency of

the Commonwealth authorized to regulate, protect, propagate, manage and preserve

game or wildlife[.]” 34 Pa.C.S. § 2161(b). “The ownership, jurisdiction over and

control of game or wildlife is vested in the [GC] as an independent agency of the

Commonwealth in its sovereign capacity to be controlled, regulated and disposed of

in accordance with this title.” 34 Pa.C.S. § 103(a). “It shall be the duty of the [GC]

to protect, propagate, manage and preserve the game or wildlife of this

Commonwealth and to enforce, by proper actions and proceedings, the laws of this

Commonwealth relating thereto.” 34 Pa.C.S. § 322(a). “The [GC] has the power

and duty to take all actions necessary for the administration and enforcement of this

title[,]” 34 Pa.C.S. § 322(b), including “[t]ak[ing] any necessary action to

accomplish and assure the purposes of this title.” 34 Pa.C.S. § 322(c)(12). “The

administration of all lands or waters owned, leased or otherwise controlled by the

[GC] shall be under” the GC director’s sole control, “and the [GC] shall promulgate

regulations consistent with the purpose of this title for its use and protection as

necessary to properly manage these lands or waters.” 34 Pa.C.S. § 721(a). “[T]he

[GC] has sufficient interest in the maintenance and care of any lands, buildings,

appurtenances, waters and the flora and fauna, minerals, oil or gas thereon to

promulgate regulations which are necessary to preserve and protect the users,

improvements, lands and buildings under its control.” 34 Pa.C.S. § 741(a). The GC

may promulgate regulations to protect users, improvements, lands and buildings

under its control from “[d]amages of any kind” and “to properly protect and preserve

these lands for their intended use.” 34 Pa.C.S. § 741(b)(2)-(3). “[T]he [GC is] . . .

27

authorized to protect and preserve lands under [its] control, may bring civil actions

on behalf of the Commonwealth for the value of any damage done or materials of

any kind removed from [its] lands or buildings” and “is entitled to recover the costs

of gathering the evidence . . . in any civil action brought under this [S]ection where

the defendant is found liable for damages.” 34 Pa.C.S. § 741(d). “The

Commonwealth has sufficient interest in game or wildlife living in a free state to

give it standing, through its authorized agents, to recover compensatory and punitive

damages in a civil action against any person who kills any game or wildlife or who

damages any game or wildlife habitat.” 34 Pa.C.S. § 2161(a). “The [GC] . . . may,

in addition to the penalties provided in this title, bring civil actions on behalf of the

Commonwealth for compensatory and punitive damages for any game or wildlife

killed or any game or wildlife habitat injured or destroyed[,]” and the GC “may

recover the costs of gathering the evidence, including expert testimony, in any civil

action brought under this [S]ection where the defendant is found liable for damages.”

34 Pa.C.S. § 2161(b). Finally, the GC may appoint enforcement officers. See 34

Pa.C.S. §§ 901-932.

Moreover, the Pennsylvania Supreme Court has held that “the [GC] has

a substantial interest in the lands and wildlife under its control. This alone would be

sufficient to give it standing to legally challenge any action which allegedly would

have an adverse impact on those interests.” Pa. Game Comm’n, 555 A.2d at 816.

In his concurring opinion, Justice Rolf Larsen stated:

As one of this Commonwealth’s trustees of our natural

resources and the public estate under [a]rticle I, section

27 of our Constitution, the [GC] must have standing to

take whatever legal action is necessary and appropriate to

“conserve and maintain” our “clean air, pure water,” and

“the natural, scenic, historic and esthetic values of the

environment” where threats to game or wildlife and to

waterways and lands acquired and managed by the [GC]

arise.

28

Id. at 817 (Larsen, J., concurring) (emphasis added).

Notably, in Amerada Hess Corp., wherein the defendants challenged

the state of Maryland’s standing to sue to recover damages incurred as a result of an

oil discharge into the Baltimore Harbor, the focus was on the state’s authority, and

no specific challenge was made to the Maryland department of natural resources’ or

the port administration’s standing. In State of California By & Through the

Department of Fish & Game v. S.S. Bournemouth, 307 F. Supp. 922, 923 (C.D. Cal.

1969), the state’s fish and game commission filed a complaint in rem against the

vessel to recover damages incurred by discharging a quantity of bunker oil into the

state’s and the U.S.’s navigable waters. Applying maritime law, the U.S. District

Court denied the defendants’ motion to dismiss. The S.S. Bournemouth Court stated:

Oil pollution of the nation’s navigable waters by seagoing

vessels both foreign and domestic is a serious and growing

problem. The cost to the public, both directly in terms of

damage to the water and indirectly of abatement is

considerable. In cases where it can be proven that such

damage to property does in fact occur, the governmental

agencies charged with protecting the public interest

have a right of recourse in rem against the offending

vessel for damages to compensate for the loss.

Id. at 929 (emphasis added).

In addition, the fact that the agencies’ various enabling statutes offer

enforcement options does not necessarily preclude common law actions.

It is well established that “statutes are not presumed to

make changes in the rules and principles of the common

law or prior existing law beyond what is expressly

declared in their provisions.” Carrozza v. Greenbaum, . . .

916 A.2d 553, 566 ([Pa.] 2007) (quoting Commonwealth

v. Miller, . . . 364 A.2d 886, 887 ([Pa.] 1976)). Thus, the

Court will not disturb established legal principles without

express direction from the Legislature. Carrozza, 916

A.2d at 565-66.

Everhart v. PMA Ins. Grp., 938 A.2d 301, 307 (Pa. 2007).

29

As legislatively created and appointed advocates for the express

purpose of protecting the Commonwealth’s natural resources and, broadly

construing standing under the ERA, as we must, see Pa. Game Comm’n, this Court

concludes that DEP, DCNR, FBC, and GC have trustee standing to bring the instant

action.

Because the Commonwealth, DEP, and DCNR have standing as parens

patriae, and the Commonwealth, DEP, DCNR, FBC, and GC have trustee standing,

Defendants’ PO 1 (Lack of Standing) is overruled.17

PO 2 (Demurrer - Public Nuisance Claim)

Defendants object to Plaintiffs’ First Cause of Action - Public Nuisance

- on the basis that Pennsylvania does not impose nuisance liability against a

manufacturer after placing a product into the stream of commerce, and Plaintiffs do

not and cannot allege that Defendants controlled their PCB products after they sold

them to third parties, particularly when Defendants ceased production more than 40

years ago.

Section 821B of the Second Restatement,18 upon which Pennsylvania

courts rely, provides:

17

Defendants object to Plaintiffs’ declaration in the Complaint that they “also bring this

action . . . pursuant to their authority within the [CAA, Section 204(c) of the CAA], 71 P.S. § 732-

204(c)[,]” Complaint ¶ 28, arguing that Section 204(c) of the CAA does not confer standing in

Plaintiffs. See Defendants’ Supporting Br. at 15. Section 204(c) of the CAA states, in relevant

part: “The Attorney General shall represent the Commonwealth and all Commonwealth agencies

. . . in any action brought by . . . the Commonwealth or its agencies[.]” 71 P.S. § 732-204(c).

Therefore, Section 204(c) of the CAA authorizes the Attorney General to prosecute civil actions

on behalf of Commonwealth parties, but does not expressly confer standing. However, because it

appears that Plaintiffs in that paragraph were merely stating the statutory basis for the Attorney

General’s representation and not claiming standing by virtue of the CAA, Defendants’ preliminary

objection to Complaint paragraph 28 is overruled.

18

“The Restatement (Third) of Torts [(Third Restatement)] was published in 1998.” A

MAZE OF UNCERTAINTY: PA PROD. LIAB. LAW REMAINS IN A CONFUSING STATE OF FLUX, 2013 WL

504247, at *2. However, Pennsylvania state courts have yet to adopt the Third Restatement. See

30

(1) A public nuisance is an unreasonable interference with

a right common to the general public.

(2) Circumstances that may sustain a holding that an

interference with a public right is unreasonable include the

following:

(a) Whether the conduct involves a significant

interference with the public health, the public

safety, the public peace, the public comfort or the

public convenience, or

(b) whether the conduct is proscribed by a statute,

ordinance or administrative regulation, or

(c) whether the conduct is of a continuing nature

or has produced a permanent or long-lasting effect,

and, as the actor knows or has reason to know, has

a significant effect upon the public right.

Second Restatement § 821B.

Section 3 of the CSL provides: “The discharge of . . . any substance into

the waters of this Commonwealth, which causes or contributes to pollution . . . or

creates a danger of such pollution is hereby declared not to be a reasonable or natural

use of such waters, to be against public policy and to be a public nuisance.” 35 P.S.

§ 691.3 (emphasis added). Section 401 of the CSL declares: “It shall be unlawful

for any person . . . to put or place into any of the waters of the Commonwealth . . .

any substance of any kind or character resulting in pollution as herein defined. Any

such discharge is hereby declared to be a nuisance.” 35 P.S. § 691.401 (emphasis

added). Section 1 of the CSL defines waters of the Commonwealth “to include any

and all rivers, streams, creeks, rivulets, impoundments, ditches, water courses, storm

sewers, lakes, dammed water, ponds, springs and all other bodies or channels of

id.; see also Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014). Accordingly, Pennsylvania

remains a Second Restatement jurisdiction. See Tincher.

31

conveyance of surface and underground water, or parts thereof, whether natural or

artificial, within or on the boundaries of this Commonwealth.” 35 P.S. § 691.1.

According to Section 1 of the CSL, pollution

shall be construed to mean contamination of any waters of

the Commonwealth such as will create or is likely to create

a nuisance or to render such waters harmful, detrimental

or injurious to public health, safety or welfare, or to

domestic, municipal, commercial, industrial, agricultural,

recreational, or other legitimate beneficial uses, or to

livestock, wild animals, birds, fish or other aquatic life,

including but not limited to such contamination by

alteration of the physical, chemical or biological

properties of such waters, or change in temperature, taste,

color or odor thereof, or the discharge of any liquid,

gaseous, radioactive, solid or other substances into such

waters. [DEP] shall determine when a discharge

constitutes pollution, as herein defined, and shall establish

standards whereby and wherefrom it can be ascertained

and determined whether any such discharge does or does

not constitute pollution as herein defined.

35 P.S. § 691.1. Section 601(a) of the CSL specifies that “[a]ny activity or

condition declared by [the CSL] to be a nuisance or which is otherwise in

violation of [the CSL], shall be abatable in the manner provided by law or

equity for the abatement of public nuisances[] . . . in the name of the

Commonwealth . . . in [this Court.]” 35 P.S. § 691.601(a) (emphasis added).

Accordingly, the Pennsylvania Supreme Court has declared that “pollution of

public waterways is” a nuisance per se. Machipongo Land & Coal Co., Inc. v.

Commonwealth, 799 A.2d 751, 774 (Pa. 2002).

This Court has also interpreted:

“A public nuisance is an inconvenience or troublesome

offense that annoys the whole community in general, and

not merely some particular person, and produces no

greater injury to one person than to another - acts that are

against the well-being of the particular community - and is

not dependent upon covenants.” Blue Mountain Pres[.]

32

Ass[’]n v. Eldred, 867 A.2d 692, 704 (Pa. Cmwlth. 2005)

(quoting Groff v. Borough of Sellersville, . . . 314 A.2d

328, 330 ([Pa. Cmwlth.] 1974)). A nuisance “affects

health, safety or morals.” Id. at 705 (quoting Menger v.

Pass, . . . 80 A.2d 702, 703 ([Pa.] 1951)).

SPTR, Inc. v. City of Phila., 150 A.3d 160, 167 (Pa. Cmwlth. 2016).

Here, relying on Diess v. Pennsylvania Department of Transportation,

935 A.2d 895 (Pa. Cmwlth. 2007), and City of Philadelphia v. Beretta U.S.A., Corp.,

126 F. Supp. 2d 882, 906 (E.D. Pa. 2000), Defendants claim that Plaintiffs failed to

allege that Monsanto itself released, discharged, or put PCBs into the

Commonwealth’s waters and, thus, have failed to plead a legally sufficient public

nuisance claim. See Defendants’ Supporting Br. at 13.

Despite that neither the Second Restatement nor Pennsylvania law

requires, in order to be found to have created a public nuisance, that the creator must

at all times control the nuisance-creating product, we acknowledge that this Court

ruled in Diess:

In this case, the [l]andowners do not allege that Allegheny

Energy owned the fly ash at the time of the landslide. Nor

do they aver that Allegheny Energy had the power to

control the property upon which the fly ash had been

deposited. The Court does not agree with the

[l]andowners that the mere generation of the fly ash is

sufficient to support a claim of public nuisance against

Allegheny Energy.

Id. at 905.

In sustaining the preliminary objection to the landowners’ public

nuisance claim, the Diess Court expounded:

The [c]omplaint does not aver sufficient facts to

demonstrate that Allegheny Energy engaged in any

conduct that caused a public nuisance. Allegheny Energy,

while admitting it [generated the fly ash and] engaged the

services of a company to dispose of the fly ash,

relinquished control of the fly ash, and the transporter

33

acquiring the fly ash controlled the disposal of the

materials. Although the dispersion of fly ash throughout

the affected community might constitute a nuisance, [the

l]andowners have failed to connect Allegheny Energy’s

generation and dispossession of the fly ash with the

incident that has caused the alleged harm.

Id. at 905. However, in Diess, the nuisance arose from a collapsed road embankment

created by a third party using an arsenic-filled byproduct of what the manufacturer

sold. Clearly, that presented a much more remote circumstance than those before

this Court, where Plaintiffs allege that the marketed uses of the PCB products

themselves created the nuisance. Accordingly, Diess is inapposite.

This Court observes that, in Beretta, the U.S. District Court for the

Eastern District of Pennsylvania, likewise, concluded that manufacturers could not

be held liable for public nuisance for their product (gun) distribution practices which

could harm individuals after the products had left their control. See id. However,

Beretta is also distinguishable from the instant matter because, therein, when the

products left the manufacturer’s control, they were legal and non-defective, and any

harm that resulted from their negligent or criminal use was beyond the

manufacturer’s instruction and control. PCBs, on the other hand, as alleged in the

Complaint and which this Court must accept as true, are volatile in and of themselves

and can disperse inadvertently, without intervening negligent or criminal conduct.

Interestingly, the Beretta Court examined City of Bloomington, Indiana

v. Westinghouse Electric Corp., 891 F.2d 611 (7th Cir. 1989). Therein, Bloomington

filed a complaint against Monsanto after Westinghouse purchased and used

Monsanto’s PCB products in its Bloomington plant, and waste containing PCBs

were hauled to various Bloomington area landfills, and small concentrations of PCBs

also got into the sewer effluent of the Westinghouse plant.19 The Bloomington Court

19

According to the Bloomington Court, “[i]n 1970 Monsanto commenced using a warning

label advising customers not to permit PCBs to enter the environment and in 1976 Monsanto

34

upheld the trial court’s dismissal of the public nuisance claim against Monsanto,

stating: “[T]he pleadings do not set forth facts from which it could be concluded that

Monsanto retained the right to control the PCBs beyond the point of sale to

Westinghouse,” id. at 614, and did not know that Westinghouse would release

harmful waste on city property.

Unlike in Diess, Beretta, and Bloomington, Plaintiffs in this case pled

sufficient facts in the Complaint that, if proven, may establish Defendants’ liability

for a public nuisance. Plaintiffs specifically allege: Defendants knew or should have

known that their PCB products “would inevitably volatilize and leach, leak, and

escape their intended applications, contaminating runoff during naturally occurring

storm and rain events and enter[] groundwater, waterways, waterbodies, and other

waters, sediment, soils, and plants, as well as fish and other wildlife throughout the

Commonwealth.” Complaint ¶ 6. “More than 1,300 miles of streams and more than

3,600 lake acres in the Commonwealth have been identified as ‘impaired’ . . .

because the PCBs in those waterbodies exceed the Commonwealth’s water quality

standards[.]” Complaint ¶ 12. “The Commonwealth’s residents and natural

resources, including its water bodies and water systems, have been and continue to

be impacted by PCBs manufactured, marketed, distributed, and introduced into

commerce by Defendants[.]” Complaint ¶ 17. “Monsanto’s PCB mixtures and

PCB-containing products were used in countless applications within the

Commonwealth and leached, leaked, off-gassed, and escaped their ordinary and

intended applications to contaminate the Commonwealth’s waters, sediments, soils,

air, and fish and wildlife.” Complaint ¶ 151. “None of these expenditures would

have been necessary absent Monsanto’s sale and dissemination of toxic PCB

announced that it would stop selling PCBs since substitutes were available for electrical equipment

manufacturers.” Bloomington, 891 F.2d at 613.

35

mixtures, which, when used as intended, would inevitably contaminate natural

resources and endanger people, animals, and the environment.” Complaint ¶ 251.

Plaintiffs further allege:

260. Defendants manufactured, distributed, marketed, and

promoted commercial PCB formulations in a manner that

created or contributed to the creation of a public nuisance

that is harmful to health and obstructs the free use and

enjoyment of the Commonwealth’s natural resources.

261. Defendants manufactured, marketed, and sold their

commercial PCB formulations when they knew or should

have known that PCBs were toxic to human and animal

life and would inevitably enter the Commonwealth’s

environment.

262. Defendants knew or should have known that their

PCB mixtures, as ordinarily used, would end up in the

Commonwealth’s natural resources, waterways, water

bodies, groundwater, soils, sediments, fish and animal

tissues.

263. Defendants’ conduct and the presence of their PCBs

annoys, injures, and endangers the comfort, repose, health,

and safety of others.

264. Defendants’ conduct and the presence of their PCBs

in the Commonwealth significantly interfere with and

obstruct the public’s free use and comfortable enjoyment

of the Commonwealth’s natural resources for commerce,

navigation, fishing, recreation, and aesthetic enjoyment.

265. Defendants’ conduct and the presence of [their] PCBs

in the Commonwealth’s natural resources is injurious to

human, animal, and environmental health.

266. An ordinary person would be reasonably annoyed or

disturbed by the presence of toxic PCBs that endanger the

health of fish, animals, and humans and degrade water

quality and marine habitats as well as soils and sediments.

267. Defendants’ conduct caused and continues to cause

harm to the Commonwealth.

36

268. The Commonwealth has suffered and will continue

to suffer damage from Defendants’ conduct, including

incurring costs to reduce PCBs through TMDLs and other

remedial measures, to remove PCBs that have invaded the

Commonwealth’s natural resources, to prevent PCBs from

injuring additional Commonwealth natural resources, and

to restore those natural resources whose use or value has

been lost or impaired.

269. The Commonwealth is incurring and will continue to

incur costs to investigate, monitor, analyze, and remediate

PCB contamination in the Commonwealth’s natural

resources.

270. As a result of Defendants’ conduct, the

Commonwealth suffers injuries to the public interest and

the health and well-being of its environment.

271. Defendants knew or should have known that the

manufacture, promotion, sale, distribution, and use of their

commercial PCB mixtures would cause contamination of

the Commonwealth’s environment.

272. Defendants knew or should have known that their

PCB products would contaminate water supplies, degrade

fresh water and marine habitats, endanger birds and

animals, and contaminate soils and sediments in the

Commonwealth.

273. In addition, Defendants knew or should have known

that their PCB products are associated with serious

illnesses and cancers in humans and that humans may be

exposed to PCBs through ingestion of fish and/or dermal

contact. As a result, it was foreseeable to Defendants that

humans would be exposed to PCBs through, e.g.,

swimming in contaminated waters or eating fish and

shellfish from contaminated areas.

274. Defendants knew, or should have known, that PCB

contamination they introduced or caused would seriously

and unreasonably interfere with the ordinary comfort, use,

and enjoyment of contaminated waterbodies, including the

Commonwealth’s waters.

275. Defendants’ conduct in manufacturing, distributing,

selling, and promoting PCBs, as well as misrepresenting

37

or omitting the dangers those compounds foreseeably

posed, constitutes an unreasonable interference with a

right common to the general public, i.e., the right to freely

use the Commonwealth’s natural resources without

obstruction and health hazard.

276. As a direct and proximate result of Defendants’

creation of a public nuisance, the Commonwealth has

suffered, and continues to suffer, monetary damages,

including loss of value and loss of use of the

Commonwealth’s natural resources.

Complaint ¶¶ 260-276.

Therefore, despite that Plaintiffs do not specifically allege that

Defendants themselves “discharged” or “put or placed [PCBs] into any of the waters

of the Commonwealth,” 35 P.S. § 691.401, Plaintiffs clearly declare that Defendants

are responsible for PCBs entering the Commonwealth’s waters because Defendants

knew that the uses for which they marketed, sold, and distributed PCB mixtures

would result in leaching, leaking, and escaping their intended applications and

contaminating (i.e., polluting) those waters. If Plaintiffs can prove their claims,

Defendants should not be permitted to escape liability merely because they did not

pour PCBs into the Commonwealth’s environment first-hand.

Notably, as Plaintiffs point out:

[S]everal courts have already sustained nuisance claims

asserted by governmental plaintiffs against Monsanto

based on similar allegations. See, e.g., Ex. 3, Oregon v.

Monsanto Co., et al[.], Case No. 18-[CV]-00540, Order at

14 (Or. Circuit Ct. Jan. 9, 2019) (“[The [s]tate] allege[s]

that Defendants knew that the PCBs would inevitably

wind up polluting Oregon’s waters through the normal,

ordinary use of Defendants’ customers. That is, the

allegations are that it was Defendants’ sale of these

products into Oregon that inexorably led to the pollution

giving rise to the claimed public nuisance. These

allegations, if proven, would be sufficient to prove [the]

required elements for a public nuisance claim.”); [Mayor

& City Council of] Baltimore [v. Monsanto Co., 2020 WL

38

1529014[,] at *10 [(D. Md. Mar. 31, 2020)] (sustaining

nuisance claim on allegations “that Monsanto

manufactured, distributed, marketed, and promoted PCBs,

resulting in the creation of a public nuisance that is

harmful to health and obstructs the free use of the [c]ity’s

stormwater and other water systems and waters”); City of

San Diego v. Monsanto Co., 2017 WL 5632052, at *7

(S.D. Cal. Nov. 22, 2017); City of Spokane v. Monsanto

Co., 2016 WL 6275164, at *7 (E.D. Wash. Oct. 26, 2016).

Plaintiffs’ Br. at 20.

Regarding state cases, the Baltimore Court observed:

[S]everal state attorneys general have asserted claims for

injuries to natural resources as a result of Monsanto’s

conduct. See State of Washington v. Monsanto Co., No.

16-2-29591-6 (Wash. Super.); State of Oregon v.

Monsanto Co., No. 18[-]CV[-]00540 (Or. Super.); State of

Ohio v. Monsanto Co., No. A1801237 (Ohio Com. Pl.).

Some of those actions remain pending, and Monsanto’s

efforts to have them be initially dismissed on motions

[have] been unsuccessful.

Baltimore, CV RDB-19-0483, 2020 WL 1529014, at *3.

In light of Plaintiffs’ nearly identical claims in the instant matter, this

Court finds the Baltimore Court’s reasoning persuasive here:

The [c]ity has sufficiently alleged that Defendants created

or substantially participated in the creation of PCBs, even

though Defendants may not have maintained control over

the contaminants once disseminated in the [c]ity’s waters.

The [c]ity has alleged that Monsanto manufactured,

distributed, marketed, and promoted PCBs, resulting in the

creation of a public nuisance that is harmful to health and

obstructs the free use of the [c]ity’s stormwater and other

water systems and waters. The [c]ity further alleges that

Monsanto had extensive knowledge about PCB’s harmful

effects; intentionally withheld this information and

misrepresented to the public and government officials that

PCBs were safe; and manufactured and distributed PCBs

in Baltimore’s waters, causing harm to the [c]ity’s

humans, animals, and environment.

39

Just as the plaintiffs in Exxon [Mobil Corp.] plausibly

alleged that [the] defendants manufactured and distributed

the toxic chemicals at issue which substantially

contributed to the creation of a public nuisance, so too has

the [c]ity plausibly alleged that [the D]efendants

manufactured and distributed PCBs which have

contaminated the [c]ity’s waters, creating a public

nuisance. See [Exxon Mobil Corp.,] 406 F. Supp. 3d at

469.

Baltimore, CV RDB-19-0483, 2020 WL 1529014, at *10 (internal citations omitted).

“[A]ccept[ing] as true all well-pleaded material allegations in the

[Complaint and the documents attached thereto], as well as all inferences reasonably

deduced therefrom[,]” and resolving any doubt in favor of overruling the preliminary

objection, as we must, because it does not “appear with certainty that . . . [Plaintiffs

have failed to state a legally sufficient public nuisance claim against Defendants],”

Torres, 997 A.2d at 1245 (emphasis added), Defendants’ PO 2 (Demurrer - Public

Nuisance Claim) is overruled.

PO 3 (Demurrer - Trespass Claim)

Defendants object to Plaintiffs’ Fifth Cause of Action - Trespass - on

the basis that Pennsylvania law does not recognize trespass for the manufacture of a

product after it has left the manufacturer’s control, and Plaintiffs failed to plead that

Defendants intended their PCBs to trespass on Commonwealth lands and waters.

“It is well-settled law that in order to establish a claim for trespass, a

plaintiff must prove an intentional entrance upon land in the possession of another

without a privilege to do so.” Kennedy v. Consol Energy Inc., 116 A.3d 626, 636

(Pa. Super. 2015)20 (emphasis added). “[A] person is a trespasser merely by

20

“While we recognize that Pennsylvania Superior Court cases are not binding on this

Court, such cases ‘offer persuasive precedent where they address analogous issues.’ Lerch v.

Unemployment Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018).” Stahl v. Workers’

40

intending to be where he is. The intent to be on another’s land is not required to

prove trespass.” Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal

Practical Knowledge, 102 A.3d 501, 507 (Pa. Super. 2014).

[Second Restatement Section] 158 . . . governs trespass

claims in Pennsylvania:

....

One is subject to liability to another for trespass,

irrespective of whether he thereby causes harm to any

legally protected interest of the other, if he intentionally

(a) enters land in the possession of the other, or

causes a thing or a third person to do so, or

(b) remains on the land, or

(c) fails to remove from the land a thing which he

is under a duty to remove.

[Second Restatement] § 158 ([Am. Law Inst.] 1965);

Smith v. King’s Grant Condo., . . . 614 A.2d 261, 267 ([Pa.

Super.] 1992), aff[’]d, . . . 640 A.2d 1276 ([Pa.] 1994).

The comment to clause (a) provides that “it is not

necessary that the foreign matter should be thrown directly

and immediately upon the other’s land,” and that instead

“[i]t is enough that an act is done with knowledge that it

will to a substantial certainty result in the entry of the

foreign matter.” Id. at Comment.

Gilbert v. Synagro Cent., LLC, 90 A.3d 37, 52 (Pa. Super. 2014), aff’d in part, rev’d

in part on other grounds, 131 A.3d 1 (Pa. 2015). “[T]he same legal standard (intent)

applies to trespasses of things and third persons[.]”21 Liberty Place Retail Assocs.,

102 A.3d at 508. Notwithstanding, “[i]n accordance with the [Second] Restatement

Comp. Appeal Bd. (E. Hempfield Twp.), 242 A.3d 3, 13 n.6 (Pa. Cmwlth. 2020). The Pennsylvania

Superior Court cases cited herein are relied on for their persuasive value.

21

In fact, “it is easier to infer the necessary intent to cause trespass of things, as opposed

to persons. Piles of sand, dirt, and biosolids are inanimate objects. They go where they are placed

and answer only to the laws of physics and gravity.” Liberty Place Retail Assocs., 102 A.3d at

508.

41

principles, courts do not impose trespass liability on sellers for injuries caused by

their product after it has left the ownership and possession of the sellers.”

Bloomington, 891 F.2d at 615. Moreover, where a plaintiff fails to allege the

necessary trespassory intent, the claim must be dismissed. See id.

Here, Plaintiffs declare in the Complaint in support of their trespass

action:

321. By their conduct, Defendants wrongfully caused

PCBs to enter, invade, intrude upon and injure and

contaminate the natural resources of the Commonwealth,

trespassing upon the Commonwealth’s natural resources.

322. Defendants acted intentionally while knowing, or

having reason to know, that the Commonwealth did not

give Defendants authorization to act in a manner that

would cause injury to the Commonwealth’s natural

resources.

323. Due to Defendants’ wrongful and intentional conduct

in introducing PCBs and PCB-containing products into

[the Commonwealth], which caused injury to the natural

resources of the Commonwealth, the Commonwealth and

its residents have suffered and will continue to suffer

damages, including impairment of the public’s free use

and comfortable enjoyment of the Commonwealth’s

natural resources for commerce, navigation, fishing,

recreation, and aesthetic enjoyment.

324. Defendants’ wrongful and intentional conduct in

introducing PCBs and PCB-containing products into the

Commonwealth was and is the direct factual and legal

cause of the injury to the Commonwealth.

Complaint ¶¶ 321-324. Plaintiffs do not claim that Defendants intentionally entered

onto Commonwealth land, nor intentionally directed the PCB mixtures or a third

42

party to do so.22 See Bloomington. Therefore, Plaintiffs fail to allege that

Defendants had the requisite trespassory intent. Defendants’ informed

understanding of the functionality and potential effects of their products cannot be

interpreted as an intent to trespass throughout the Commonwealth’s environment.

Because it “appear[s] with certainty that . . . [Plaintiffs have failed to

state a legally sufficient trespass claim against Defendants],” Torres, 997 A.2d at

1245 (emphasis added), Defendants’ PO 3 (Demurrer - Trespass Claim) is sustained.

PO 4 (Demurrer - Design Defect Claim)

Defendants object to Plaintiffs’ Second Cause of Action - Design

Defect - on the basis that Defendants owed no duty to Plaintiffs or the general public

to make their products safe for the environment. Defendants further contend that

Plaintiffs’ design defect claim fails because the consumer expectations test is

inapplicable to complex products like PCBs; Plaintiffs’ allegations of an alternative

product do not support liability under the risk-utility test; and Plaintiffs’ allegations

of environmental harm due to PCB dumping, spillage, and disposal do not state a

claim because they were not intended uses of the product.

In Webb v. Zern, . . . 220 A.2d 853 ([Pa.] 1966), our

Supreme Court formally adopted Section 402A of the

[Second Restatement] as the law governing strict products

liability actions. This [S]ection provides:

(1) One who sells any product in a defective condition

unreasonably dangerous to the user or consumer or to his

property is subject to liability for physical harm thereby

22

“Whereas the alleged injury stems from a sale, [the p]laintiff[s’] claims are more adapted

to contract law or strict liability.” Town of Hooksett Sch. Dist. v. W.R. Grace & Co., 617 F. Supp.

126, 133 (D.N.H. 1984).

43

caused to the ultimate user or consumer, or to his property,

if

(a) the seller is engaged in the business of selling

such a product, and

(b) it is expected to and does reach the user or

consumer without substantial change in the

condition in which it is sold.

(2) The rule stated in [s]ubsection (1) applies although

(a) the seller has exercised all possible care in the

preparation and sale of his product, and

(b) the user or consumer has not bought the

product from or entered into any contractual

relation with the seller.

[Second Restatement] § 402A [].

Barton v. Lowe’s Home Ctrs., Inc., 124 A.3d 349, 354-55 (Pa. Super. 2015).

Accordingly, in Pennsylvania,

a person or entity engaged in the business of selling a

product has a duty to make and/or market the product -

which “is expected to and does reach the user or consumer

without substantial change in the condition in which it is

sold” - free from “a defective condition unreasonably

dangerous to the consumer or [the consumer’s] property.”

Accord [Second Restatement] § 402A(1).

Tincher v. Omega Flex, Inc., 104 A.3d 328, 388 (Pa. 2014). Correspondingly, “a

manufacturer or supplier has a duty to cease further distribution of a product at such

point as it may know, or may reasonably be charged with knowledge that the

commodity is too dangerous to be used by anyone.” Lance v. Wyeth, 85 A.3d 434,

460 (Pa. 2014).

“[Second Restatement Section 402A] imposes liability on

the seller . . . of a defective product regardless of the lack

of proven negligence or the lack of contractual relation

[sic] between the seller and the injured party.” Salvador

44

v. Atl[.] Steel Boiler Co., . . . 319 A.2d 903, 906 ([Pa.]

1974). The social policy reflected in the imposition of the

seller’s liability is clear. When a product is released into

the stream of commerce, it is the seller or manufacturer

who is best able to shoulder the costs and to administer the

risks involved. Having derived a benefit from engaging in

business, they are particularly able to allocate the losses

incurred through cost increases and insurance. This

assignment of liability is what Professor Prosser referred

to as “social adjustment[].[”] W. Prosser, Law of Torts at

495 (4th ed. 1979).

Walton v. Avco Corp., 610 A.2d 454, 458 (Pa. 1992); see also Tincher.

Regarding whether Defendants owed a duty to Plaintiffs or the general

public to make their products safe for the environment, the law is not as clear as

Defendants postulate. This Court acknowledges that “the [Restatement (Third) of

Torts: Products Liability ([American Law Institute] 1998) (Third Restatement)] does

not limit a strict liability cause of action to the ‘user or consumer,’ and broadly

permits any person harmed by a defective product to recover in strict liability[,]”

Thomas ex rel. Thomas v. Staples, Inc., 2 F. Supp. 3d 647, 655 (E.D. Pa. 2014)

(quoting Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 54 (3d Cir. 2009)), and federal

courts have allowed Pennsylvania bystanders to recover for foreseeable injuries

caused by defective products pursuant to the Third Restatement. See Berrier.

However, Pennsylvania courts have yet to expressly adopt the Third Restatement.

See Tincher; see also Sullivan v. Werner Co., 253 A.3d 730 (Pa. Super. 2021).

Moreover, Comment o to the Second Restatement Section 402A

reflects, in pertinent part:

Casual bystanders, and others who may come in contact

with the product, as in the case of employees of the

retailer, or a passer-by injured by an exploding bottle, or a

pedestrian hit by an automobile, have been denied

recovery. There may be no essential reason why such

plaintiffs should not be brought within the scope of the

protection afforded, other than that they do not have the

45

same reasons for expecting such protection as the

consumer who buys a marketed product; but the social

pressure which has been largely responsible for the

development of the rule stated has been a consumers’

pressure, and there is not the same demand for the

protection of casual strangers.

Second Restatement 402A, Comment o. Notably, when the Webb Court adopted the

Second Restatement, it simultaneously allowed a bystander injured by the explosion

of a keg his father had purchased from a beer distributor to assert a products liability

action against the keg manufacturer, brewer, and beer distributor under Section

402A of the Second Restatement.

Thereafter, federal and Pennsylvania state courts have issued somewhat

inconsistent decisions regarding a manufacturer’s liability to product users and

bystanders. The Third Circuit Court of Appeals observed in Berrier:

[T]he decisions of the Pennsylvania Superior Court

continue to struggle with the harsh consequences that the

“intended user doctrine” can sometimes have. See, e.g.,

Kiak v. Crown Equip[.] Corp., [989 A.2d 385 (Pa. Super.

2010)] (employee/non-user of forklift injured by coworker

operating the forklift permitted to proceed against

manufacturer of forklift under [Second Restatement]

Section 402A); Schmidt v. Boardman Co., 958 A.2d 498

(Pa. Super. 2008) (bystanders who witnessed relatives

killed and/or injured by [a] defective [fire hose] allowed

to recover under [Second Restatement] Section 402A for

emotional distress even though they suffered no physical

injuries).

Berrier, 563 F.3d at 57 n.27. The inconsistent application has led to what the

Pennsylvania Supreme Court has “recognize[d as] the continuing state of disrepair

in the arena of Pennsylvania strict-liability design defect law.” Beard v. Johnson &

Johnson, Inc., 41 A.3d 823, 836 (Pa. 2012).

As a result, the Tincher Court stated:

The preferable solution may be to have the General

Assembly address this arena of substantive law. But, so

46

long as the possibility of comprehensive legislative reform

remains unlikely or uncertain, this Court retains the

authority and duty at common law to take necessary

action to avoid injustice, uncertainty, delay, and the

possibility of different standards and procedures being

employed in different courtrooms throughout the

Commonwealth.

Id. at 381 (emphasis added). In light of the foregoing, it is not clear that Defendants

did not owe a duty to Plaintiffs or the general public to make their products safe for

the environment.

“To demonstrate a breach of duty in a strict liability matter, a plaintiff

must prove that a seller (manufacturer or distributor) placed on the market a product

in a ‘defective condition.’” Tincher, 104 A.3d at 384. “Under [Second Restatement

Section 402A], it is irrelevant if a product is designed with all possible care,

including whether it has complied with all industry and governmental standards,

because the manufacturer is still liable if the product is unsafe.” Sullivan, 253 A.3d

at 747.

The Pennsylvania Supreme Court has recognized that “courts across

jurisdictions have struggled to articulate the legal notion of ‘defect’ in a way that

would . . . encompass[] the myriad [of] products on the market, in a way that can

effectively resonate with a jury[,]” and that “[t]he difficulty persists particularly with

respect to defects in design.” Id.

[T]he common law principles that delineate the strict

liability cause of action, and the limits upon strict liability,

reflect a balance of interests respecting what is socially or

economically desirable. . . .

....

Against this background, two standards have emerged[]

that purport to reflect the competing interests of

consumers and sellers, upon which all American

jurisdictions judge the adequacy of a product’s design: one

measures “consumer expectations,” and articulates the

47

standard more from the perspective of the reasonable

consumer; the second balances “risk” and “utility,” and

articulates the standard more from the perspective of the

reasonable seller.

Tincher, 104 A.3d at 386-87.

Under the consumer expectations standard, [which derives

from Section 402A of the Second Restatement,] a plaintiff

may prove “the product is in a defective condition if the

danger is unknowable and unacceptable to the average or

ordinary consumer.” [Tincher, 104 A.3d at 387.] The

consumer expectations standard is applicable in cases

where the question of how safely the product should have

performed can be answered by the common experience of

its users. The [Tincher] Court went on to recognize that a

consumer expectation test might not suffice to address all

factual situations, requiring it to be supplemented with a

risk-utility standard. [Id. at 389.]

Under the [more negligence-derived] risk-utility standard,

“a product is in a defective condition if a ‘reasonable

person’ would conclude that the probability and

seriousness of harm caused by the product outweigh the

burden or costs of taking precautions.” [Id.] The Court in

Tincher explicitly . . . adopted [] the [approach employed

by the] California Supreme Court in Barker [v. Lull

Engineering Co., 573 P.2d 413 (Cal. 1978),] which

identified the following factors as relevant to the risk-

benefit balancing test for determining whether there is a

design defect: (1) the gravity of danger posed by the

challenged design; (2) the likelihood that such danger

would occur; (3) the mechanical feasibility of a safer

alternative design; (4) the financial cost of an improved

design; and (5) the adverse consequences to the product

and to the consumer that would result from an alternative

design.

Tincher - The New Std. in Prod. Liab., 3 West’s Pa. Prac., Torts: Law & Advocacy

§ 9.4.50 (footnotes omitted); see also Tincher.

The Tincher Court recognized that the consumer expectations test had

the following theoretical and practical limitations:

48

First, products whose danger is obvious or within the

ordinary consumer’s contemplation would be exempt

from strict liability; some therefore have said that related

consumer safety expectations regarding the presence of

the danger are too low. See, e.g., Ahrens v. Ford Motor

Co., 340 F.3d 1142 (10th Cir. 2003) (affirming district

court decision that manufacturer not liable for defective

design of tractor without seatbelt or for failing to warn of

danger because plaintiff failed to adduce sufficient

evidence that risk of danger was beyond contemplation of

ordinary consumer). Second, a product whose danger is

vague or outside the ordinary consumer’s contemplation

runs the risk of being subjected to arbitrary application of

the strict liability doctrine; jury determinations of

consumer expectations regarding the presence of danger

are unpredictable. This difficulty is characteristic of

products of relatively complex design.

Tincher, 104 A.3d at 388. The risk-utility test has the following shortcoming:

The goal and strength of a pure risk-utility test is to

achieve efficiency or “to maximize the common good”;

yet, this is also its perceived weakness. See [David G.

Owen, PRODUCTS LIABILITY LAW, [] § 5.6 (Hornbook

Series) (2d ed. 2008)], at 316. For, while efficiency is

certainly a salutary goal of the law, it is not its only

purpose and, in some respects, it conflicts with bedrock

moral intuitions regarding justice in determining proper

compensation for injury to persons or property in

individual cases. Compare id. at 318 (“manufacturer

applying cost-benefit analysis to safety decision-making

in good faith thereby necessarily respects the equality and

safety rights of consumers as a group”) with[,] William E.

Nelson, THE MORAL PERVERSITY OF THE HAND

CALCULUS,[23] 45 St. Louis U.L.J. 759, 761 (2001)

(describing limitations of risk-utility analysis in

negligence context; “[U]ltimately the Hand calculus is not

about social efficiency, love, friendship or moral

arrogance. It is only about compensation. The Hand

calculus does not tell an entrepreneur whether or not to

23

The Honorable Learned Hand’s calculus specified: “[I]f the probability be called P; the

injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e.,

whether B [is] less than PL.” United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.

1947).

49

engage in conduct that will hurt one person and help

another. . . . The Hand calculus serves a much narrower

function. It tells an entrepreneur only that, if she engages

in conduct that causes others to lose more than she gains,

she will have to compensate them for their losses, but that,

if she gains more than they lose, no duty of compensation

will arise. . . . It is this very narrowness of the Hand

calculus that makes it so morally perverse. . . .”). We

should be mindful that public policy adjusts expectations

of efficiency and intuitions of justice considerations,

informing a seller’s conduct toward consumers as a group,

and ensuring proper compensation in individual cases by

judicial application of the strict liability cause of action.

Tincher, 104 A.3d at 399-00.

Therefore, the Tincher Court announced:

[I]n Pennsylvania, the cause of action in strict products

liability requires proof, in the alternative, either of the

ordinary consumer’s expectations or of the risk-utility

of a product.[24] To maintain the integrity and fairness of

the strict products liability cause of action, each part of this

24

Hence, Defendants’ argument that Plaintiffs’ claim fails under the consumer

expectations test because PCBs are a relatively complex design “far beyond the knowledge of the

ordinary consumer,” Defendants’ Supporting Br. at 25-26, even if true, does not alone preclude

Plaintiffs’ design defect claim.

In addition, Defendants’ assertion that, “[u]nder Pennsylvania law, the plaintiff is required

to establish the existence of a safer alternative design,” Defendants’ Supporting Br. at 26, is

incorrect. The cases Defendants cite in support of their declaration, Duchess v. Langston Corp.,

769 A.2d 1131 (Pa. 2001), and Lance, state that alternative design is merely one of the factors to

be considered. The Lance Court clarified:

Neither [the defendant] nor its amicus . . . have cited any decision of

th[e Pennsylvania Supreme] Court making an alternative safer

design an absolute prerequisite to any and all design-based claims

(although this is the general approach of the [Third] Restatement [],

outside special contexts such as those involving prescription drugs

and medical devices[.] . . .).

Lance, 85 A.3d at 459 n.36. Moreover, although alternative design is referenced in the Third

Restatement, that has yet to be adopted as Pennsylvania law. Therefore, any purported failure by

Plaintiffs to propose an alternative design is not preliminarily fatal to Plaintiffs’ design defect

claim.

50

standard of proof remains subject to its theoretical

limitations . . . . We believe that the demands of strict

liability policy are met because the composite standard

retains the best functioning features of each test, when

applied in the appropriate factual context.

Id. at 401 (emphasis added).

Modern decisional law reflects that the focus of disputes -

or at least those disputes making their way into the

appellate courts - has increasingly been upon the

negligence-derived risk-utility alternative formulation of

the standard. The prominence of the legal issue in

decisional law coincides with the advent of design defect

claims, in which issues of proof tend to more complexity

[sic] than where a manufacturing defect is in dispute. This

development reflected the complex litigation calculus

implicated in a strict liability claim premised upon this

type of defect resulting from either lack of proof (for

example in the case of known or foreseeable risks for

which an available cure may or may not have been

available at the time of design) or the relative deterrent

inefficacy of a theory of liability for unknowable risks,

short of exiting the market.

Id. at 403-04.

Relying on Tincher, the Pennsylvania Superior Court concluded that,

although strict liability remains the standard in Pennsylvania, such that “[n]egligence

principles are not used in determining whether the manufacturer exercised due care

in the design and manufacture of the product[,]”

[r]easonableness or foreseeability may be taken into

consideration in other aspects of liability such as

‘negligence-derived defenses, bystander compensation, or

the proper application of the intended use doctrine.’

Tincher[, 104 A.3d] at 409. Generally, those concepts

may be used in determining whether, in light of its inherent

dangers, the product fails to satisfy either discernable

consumer expectations of safety or a risk/utility analysis.

Sullivan, 253 A.3d at 746.

51

Finally, the Tincher Court held:

Going forward, consistent with this decision, when a

plaintiff proceeds on a theory that implicates a risk-utility

calculus, proof of risks and utilities are part of the burden

to prove that the harm suffered was due to the defective

condition of the product. The credibility of witnesses and

testimony offered, the weight of evidence relevant to the

risk-utility calculus, and whether a party has met the

burden to prove the elements of the strict liability cause

of action are issues for the finder of fact, whether that

finder of fact is judge or jury. A question of whether the

party has met its burden of proof is properly “removed” -

for example, via adjudication of a dispositive motion -

“from the jury’s consideration only where it is clear that

reasonable minds [cannot] differ on the issue.” Hamil v.

Bashline, . . . 392 A.2d 1280, 1284-85 ([Pa.] 1978).

Tincher, 104 A.3d at 428 (emphasis added). The U.S. District Court for the Western

District of Pennsylvania recently interpreted: “The Pennsylvania Supreme Court in

Tincher held that the issue of a product’s defect is generally for the jury to resolve.”

Whyte v. Stanley Black & Decker, Inc., 514 F. Supp. 3d 684, 698 n.7 (W.D. Pa.

2021); see also Amig v. Cnty. of Juniata, 432 F. Supp. 3d 481, 489 (M.D. Pa. 2020)

(“Pennsylvania’s new approach to design defect liability leaves open the ability to

introduce negligence-based evidence . . . .”).

In the instant case, Plaintiffs allege relative to design defect:

278. At all relevant times, Defendants were in the business

of designing, engineering, manufacturing, developing,

marketing, and selling commercial PCB formulations.

279. Defendants’ PCB mixtures and PCB-containing

products were not reasonably safe as designed at the time

they left Defendants’ control.

280. Defendants’ PCB mixtures’ toxicity, ability to bio-

accumulate, inability to be contained, and environmental

persistence rendered them unreasonably dangerous at all

times.

52

281. Defendants’ PCB mixtures were unsafe as designed,

as demonstrated by numerous studies as well as the U.S.

Congress’ and [the] EPA’s prohibition on the production

and sale of commercial PCBs in 1979 pursuant to the

TSCA.

282. Defendants knew or should have known their PCB

mixtures were not safe and were likely to contaminate

natural resources within the Commonwealth, and cause

toxic contamination of the Commonwealth’s natural

resources.

283. Defendants knew or should have known their PCB

mixtures were unsafe to an extent beyond that which

would be contemplated by an ordinary person because of

the information and evidence available to them associating

PCB exposure with adverse human and animal health

effects as well as the overwhelming seriousness of

creating widespread environmental contamination.

284. These risks were not obvious to the Commonwealth

or the public.

285. Defendants manufactured, distributed, marketed,

promoted, and sold PCB mixtures despite such knowledge

in order to maximize their profits despite the foreseeable

and known harms.

286. The seriousness of the environmental and human

health risk posed by Defendants’ products far outweighs

any social utility of Defendants’ conduct in manufacturing

their commercial PCB mixtures and concealing the

dangers posed to human health and the environment.

287. The rights, interests, and inconvenience to the

Commonwealth and general public far outweigh the

rights, interests, and inconvenience to Defendants, which

profited heavily from the manufacture, sale, and

distribution of its commercial PCB mixtures.

288. Practical and feasible alternative designs capable of

reducing the Commonwealth’s injuries were available.

Such alternatives include mineral oils, silicone fluids,

vegetable oils, and nonfluid insulating chemicals, as

evidenced by the rapid replacement of PCBs by such

alternatives upon the prohibition of PCBs, as well as

53

alternative chemical formulations and/or additional

chemical processing measures Defendants could have

taken to enhance the safety of their PCB mixtures.

Alternative chemical formulations that would have

reduced the Commonwealth’s injuries include a reduction

of chlorine content in all PCB products, which would have

materially decreased the environmental persistence and

toxicity of PCBs without eliminating their typical

applications or utilities.

289. Defendants’ conduct caused the presence of PCBs in

the Commonwealth and subsequent injury to the public

interest, including the physical and economic health and

well-being of the Commonwealth’s citizens and the

public’s free use and comfortable enjoyment of the

Commonwealth’s natural resources for commerce,

navigation, fishing, recreation, and aesthetic enjoyment.

290. The Commonwealth has suffered and will continue

to suffer injuries to its natural resources, and damages to

its public treasury as a result of Defendants’ conduct and

the presence of PCBs within the Commonwealth.

....

292. Defendants are strictly liable for all damages arising

out of their defectively designed PCB mixtures.

Complaint ¶¶ 278-290, 292.

As required to plead a valid design defect claim, Plaintiffs allege that

Defendants’ PCB products were defective, the products were defective when they

left Monsanto’s hands, and the defects harmed the public and/or Plaintiffs’ natural

resources. See Barton. Further, it does not appear that Pennsylvania law expressly

prohibits what Defendants dubbed “Plaintiffs’ novel theory [that] the ‘intended user’

would be the general public regardless of who used the product.” Defendants’

Supporting Br. at 23. Because Plaintiffs are charged with and have police power to

protect the Commonwealth’s citizenry and natural resources, they cannot fall under

the category of casual bystanders. See Alfred L. Snapp & Son, Inc.; see also Tenn.

Copper Co.; Missouri; Rhode Island; Bull HN Info. Sys., Inc.; Amerada Hess Corp.

54

Finally, although this Court acknowledges “the general rule [] that there is no strict

liability in Pennsylvania relative to non-intended uses even where foreseeable by a

manufacturer[,]” and Pennsylvania courts have “construed the intended use criterion

strictly,” Pa. Dep’t of Gen. Servs. v. U.S. Min. Prods. Co., 898 A.2d 590, 600-01

(Pa. 2006), at this early stage, this Court cannot declare that PCB dumping, spillage,

and disposal are not intended nor logical extensions of the actionable uses of

Defendants’ PCB products. See Amig (wherein the District Court determined that

plaintiff’s argument - that corrections officers’ misuse of a manufacturer’s drug test

did not preclude her product liability claim because the manufacturer can still be

liable for unintended uses that are highly predictable and foreseeable - was sufficient

for her claim to survive a motion to dismiss).

We thus decline to commit a judicial overreach by

prematurely considering such a critical issue at this

juncture, finding that such a landmark determination is

most appropriately deferred for resolution until the Court

has before it a fully developed factual record.

Accordingly, we conclude . . . that it is improvident to

reach the merits of this issue or to extend the cases

cited . . . at this stage of the litigation . . . .

Roth v. Cabot Oil & Gas Corp., 919 F. Supp. 2d 476, 492 (M.D. Pa. 2013).

[Plaintiffs’] allegations are enough to survive preliminary

objections. . . . A more precise identification of the design

defect . . . is a matter for discovery and reports from

experts . . . . But in a complaint, it is only necessary to

state the material facts “in a concise and summary form.”

Pa.R.Civ.P. 1019(a). [The C]omplaint accomplishes this

task by furnishing a concise overview of the defects that

[Plaintiffs’] intend[] to prove.

. . . . [Plaintiffs] need not rule out all other possible causes

of harm in [the C]omplaint; [they] need only allege a cause

(or causes) of harm for which [Defendants are] liable

under the law. [Plaintiffs] fulfill[] this mission by alleging

concisely that [Defendants] are liable under [Second

Restatement S]ection 402A for various defects in [their

55

products]. The possibility that [the contamination]

resulted from other causes, or that [Defendants’ PCB

products] had no defects at all, are issues for the parties to

litigate during discovery, at summary judgment, and, if

necessary, at trial.

Barton, 124 A.3d at 355-56; see also Piccolini v. Simon’s Wrecking, 686 F. Supp.

1063 (M.D. Pa. 1988) (when many factors determine whether a manufacturer is

strictly liable for harm caused by its product, and the District Court cannot find as a

matter of law that the plaintiffs have failed to allege a claim upon which relief can

be granted, because the District Court requires a more complete record, a motion to

dismiss a strict liability claim will be denied); Baltimore.

“[A]ccept[ing] as true all well-pleaded material allegations in the

[Complaint and the documents attached thereto], as well as all inferences reasonably

deduced therefrom[,]” and resolving any doubt in favor of overruling the preliminary

objection, as we must, because it does not “appear with certainty that . . . [Plaintiffs

have failed to state a legally sufficient design defect claim against Defendants],”

Torres, 997 A.2d at 1245 (emphasis added), Defendants’ PO 4 (Demurrer - Design

Defect Claim) is overruled.

PO 5 (Demurrer - Failure to Warn and Instruct Claim)

Defendants object to Plaintiffs’ Third Cause of Action - Failure to Warn

and Instruct - on the basis that Monsanto owed no duty to warn or continue to warn

Plaintiffs or the general public about the alleged environmental harm. Rather,

Defendants claim their duty to warn extended only to intended users and consumers

of their product, and whatever duty they may have had ended when Defendants

ceased production of PCBs in 1977.

“The jurisprudence of strict liability for failure to warn [] developed in

parallel[]” to strict liability for design defect. Tincher, 104 A.3d at 367 n.13. Thus,

56

“[i]t has long been the law in Pennsylvania that a ‘defective condition’ includes the

lack of adequate warnings or instructions required for a product’s safe use.” Walton,

610 A.2d at 458. The Pennsylvania Superior Court has explained:

Under Pennsylvania law, it is well established that a

dangerous product can be considered defective for

strict liability purposes if it is distributed without

sufficient warnings to notify the ultimate user of the

dangers inherent in the product. Mackowick v.

Westinghouse Elec[.] Corp., . . . 575 A.2d 100, 102 ([Pa.]

1990). Comment j to [Section] 402A of the [Second]

Restatement . . . states that the maker of an unreasonably

dangerous product may be required to warn potential users

of the product’s dangerous propensities. Comment i to

[Section] 402A [of the Second Restatement] states the

following guideline to use in determining whether a

product is “unreasonably dangerous” and thus requires

warnings: “The article sold must be dangerous to an extent

beyond that which would be contemplated by the ordinary

consumer who purchases it, with the ordinary knowledge

common to the community as to its characteristics.” Ellis

v. Chicago Bridge [&] Iron Co., . . . 545 A.2d 906, 911

([Pa. Super.] 1988) . . . .

Jordon by Jordon v. K-Mart Corp., 611 A.2d 1328, 1331 (Pa. Super. 1992)

(emphasis added).

Comment j to Section 402A of the Second Restatement expounds, in

relevant part:

Where . . . the product contains an ingredient to which

a substantial number of the population are allergic, and the

ingredient is one whose danger is not generally known,

or if known is one which the consumer would

reasonably not expect to find in the product, the seller

is required to give warning against it, if he has

knowledge, or by the application of reasonable, developed

human skill and foresight should have knowledge, of the

presence of the ingredient and the danger. Likewise in the

case of poisonous drugs, or those unduly dangerous for

other reasons, warning as to use may be required.

57

Id., Comment j (emphasis added). A failure to warn includes a continuing duty to

warn of dangers of which the manufacturer becomes aware after the product is sold.

See Walton; Talarico v. Skyjack, Inc., 191 F. Supp. 3d 394 (M.D. Pa. 2016).

To succeed on a strict-liability failure-to-warn claim, the

plaintiff “must establish only two things: [(1)] that the

product was sold in a defective condition [sic]

‘unreasonably dangerous’ to the user, and [(2)] that the

defect caused plaintiff’s injury.” Phillips [v. A-Best Prods.

Co.], 665 A.2d [1167,] 1171 [(Pa. 1995)]; Pavlik v. Lane

Ltd., 135 F.3d 876, 881 (3d Cir. 1998) (citation omitted);

see also Dorshimer v. Zonar Sys., 145 F. Supp. 3d 339,

353 (M.D. Pa. 2015) (“The adequacy of the warning is

evaluated solely on the basis of whether the warning was

inadequate and a better warning would have prevented the

injury.” [])

....

The first element of a strict-liability claim is that the

product be defective. A product is defective if it has an

inadequate warning that made the product “unreasonably

dangerous.” Phillips, 665 A.2d at 1171; see also Pavlik,

135 F.3d at 881 (“[A]n otherwise properly designed

product may still be unreasonably dangerous (and

therefore ‘defective’) for strict liability purposes if the

product is distributed without sufficient warnings to

apprise the ultimate user of the latent dangers in the

product.”). Whether the product is “unreasonably

dangerous” is a question for the jury. See Tincher, 104

A.3d at 335 (“Whether a product is in a defective condition

is a question of fact ordinarily submitted for determination

to the finder of fact.”); Amato v. Bell & Gossett, 116 A.3d

607, 620 (Pa. Super. [] 2015).[FN]7 This question can be

removed from the jury “only where it is clear that

reasonable minds could not differ on the issue.” Tincher,

104 A.3d at 335; see also Goldenstein [v. Repossessors

Inc.], 815 F.3d [142,] 146 [(3d Cir. 2016)].

[FN]7

While the [Tincher C]ourt expressly limited

its holding to cases involving a defective design,

[it] also recognized that its decision “may have an

impact upon other foundational issues regarding

58

manufacturing or warning claims.” Tincher, 104

A.3d at 390, n.21, 431-32 (emphasis added). Since

then, Pennsylvania courts have held that the

question of a product’s defectiveness for a

failure-to-warn claim is for the jury to resolve.

See, e.g., Amato . . . , 116 A.3d [at] 620 . . . .

Whyte, 514 F. Supp. 3d at 697-98 (additional bold emphasis added).

The second element of a strict-liability failure-to-warn

claim is that the defective warning caused the plaintiff’s

injury. In other words, “the plaintiff must demonstrate that

the user of the product would have avoided the risk had he

or she been warned of it by the seller.” Phillips, 665 A.2d

at 1171. For the defendant-movant to prevail on summary

judgment, “the record must show that a reasonable fact

finder would be bound to find that [the plaintiff] was fully

aware of the risk of bodily injury [before his injury];

otherwise, we are presented with a genuine issue of fact

for the jury.” Pavlik, 135 F.3d at 884. Further, the

plaintiff “enjoys the benefit of a rebuttable presumption

that an adequate warning would have been heeded if it had

been provided.” Id. at 881; Davis v. Berwind Corp., . . .

690 A.2d 186, 190 ([Pa.] 1997).

Whyte, 514 F. Supp. 3d at 700.

Here, Plaintiffs’ failure to warn and instruct claim and its continuing

duty to warn25 consists of the following allegations:

291. Defendants are under a continuing duty . . . to warn

the Commonwealth, their customers, and the public about

the human and environmental risks posed by its PCBs, and

each day on which [they] fail[] to do so constitutes a new

injury to the Commonwealth.

....

294. At all relevant times, Defendants were in the business

of designing, engineering, manufacturing, developing,

marketing, and selling commercial PCB formulations.

25

This Court has extrapolated from Plaintiffs’ Continuing Tort/Harm Claims (discussed

relative to PO 8 below) their assertions that Defendants had a continuing duty to warn, and includes

that analysis in this discussion of PO 5 (Demurrer - Failure to Warn and Instruct).

59

295. As designers, engineers, manufacture[r]s, developers,

marketers, and sellers of commercial PCB formulations,

Defendants had a duty to provide reasonable instructions

and adequate warnings about the environmental and health

hazards posed by PCBs.

296. Defendants’ PCB mixtures and PCB-containing

products were not reasonably safe at the time they left

Defendants’ control because they lacked adequate

warnings.

297. At the time Defendants manufactured, distributed,

marketed, promoted, and sold PCB mixtures, they knew

their PCB mixtures were not safe and were likely to

contaminate natural resources within the Commonwealth,

and cause toxic contamination of the Commonwealth’s

natural resources.

298. Despite Defendants’ knowledge, Defendants failed to

provide adequate warnings that their PCB mixtures were

toxic and would contaminate the Commonwealth’s natural

resources and water systems.

299. Defendants could have warned of this danger but

failed to do so and intentionally concealed information in

order to maximize profits.

300. Defendants continued to conceal the dangers of PCBs

after they manufactured, distributed, marketed, promoted,

and sold PCBs.

301. Without adequate warnings or instructions,

Defendants’ PCB mixtures were unsafe to an extent

beyond that which would be contemplated by an ordinary

person.

302. Defendants knowingly failed to issue warnings or

instructions concerning the environmental and human

health dangers of PCBs, and their volatilization risks,

contrary to the manner in which a reasonably prudent

manufacturer would act in the same or similar

circumstances.

303. Defendants’ conduct caused and continues to cause

injury to the physical and economic health and well-being

of the Commonwealth’s citizens, as well as the public’s

60

free use and comfortable enjoyment of the

Commonwealth’s natural resources for commerce,

navigation, fishing, recreation, and aesthetic enjoyment.

304. The Commonwealth has suffered and will continue

to suffer injuries to its natural resources, and damages to

its public treasury as a result of Defendants’ conduct and

the presence of PCBs within the Commonwealth.

305. Defendants are under a continuing duty . . . to warn

the Commonwealth and the public about the human and

environmental risks posed by [Defendants’] PCBs, and

each day on which [they] fail[] to do so constitutes a new

injury to the Commonwealth.

306. Defendants are strictly liable for all damages arising

out of their failure to provide adequate warnings and

instructions.

....

319. Defendants are under a continuing duty . . . to warn

the Commonwealth, their customers, and the public about

the human and environmental risks posed by [their] PCBs,

and each day on which [they] fail[] to do so constitutes a

new injury to the Commonwealth.

Complaint ¶¶ 291, 294-306, 319.

In Exxon Mobil Corp., the U.S. District Court of Maryland, applying

Maryland products liability law that is substantially similar to Pennsylvania’s

products liability law, expressed:

Of course, there is no duty to “warn the world.” Gourdine

v. Crews, . . . , 955 A.2d 769, 786 ([Md.] 2008). However,

the duty to warn extends “‘not only to those for whose use

the chattel is supplied but also to third persons whom the

supplier should expect to be endangered by its use.’”

[Georgia Pac., LLC v.] Farrar, . . . 69 A.3d [1028,] 1033

[(Md. 2013)] (quoting [Second] Restatement, [Section]

388 [Comment] d). And, the [s]tate plausibly alleges that

the harm it suffered was a foreseeable result of defendants’

placement of MTBE gasoline into the Maryland market.

It avers that there was a large market for MTBE gasoline

in Maryland in the 1990s; that defendants were

61

responsible for all or substantially all of this market; and

that MTBE contamination is associated with all

transportation, storage, and use of MTBE gasoline. These

allegations plausibly establish that defendants had a duty

to warn the [s]tate of the dangers associated with MTBE

because they created and controlled a market for products

in the [s]tate that posed unique, substantial harms to its

resources. See In re MTBE, 175 F. Supp. 2d 593, 625-26

(S.D.N.Y. 2001) (finding that plaintiffs plausibly alleged

that defendants owed them a duty to issue warnings for

MTBE gasoline where, although the plaintiffs did not

allege that the contamination of their wells was the result

of their own use of MTBE gasoline, the allegations

showed that their injuries were a foreseeable result of

defendants’ placement of MTBE gasoline in the

marketplace).

Exxon Mobil Corp., 406 F. Supp. 3d at 463-64 (internal record citations and

quotation marks omitted).

Defendants in Baltimore similarly challenged the complaint on the

basis that they had no duty to warn the general public of PCB dangers. The

Baltimore Court refused to sustain Defendants’ preliminary objection, reasoning:

[H]ere [as in Exxon Mobil Corp.], the [c]ity alleges that

the Defendants, as the sole manufacturer of PCBs, knew

and expected that PCBs would cause widespread water

contamination and failed to provide any warnings to the

public. Accordingly, the [c]ity has sufficiently pled a

claim for strict product liability of failure to warn based on

Defendants’ duty to warn the general public, whom they

allegedly knew and expected would be endangered by

PCBs. See [Exxon Mobil Corp.,] 406 F. Supp. 3d at 463.

Baltimore, CV RDB-19-0483, 2020 WL 1529014, at *11 (internal record citations

omitted). The reasoning employed by the Exxon Mobil Corp. and Baltimore Courts

is persuasive here.

Plaintiffs expressly allege Defendants’ failure to warn and instruct.

These allegations are enough to survive preliminary

objections. . . . A more precise identification of the . . .

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failure-to-warn defect is a matter for discovery and reports

from experts . . . . But in a complaint, it is only necessary

to state the material facts “in a concise and summary

form.” [Pa.R.Civ.P. 1019(a)]. [The C]omplaint

accomplishes this task by furnishing a concise overview

of the defects that [Plaintiffs’] intend[] to prove.

Barton, 124 A.3d at 356; see also Piccolini.

“[A]ccept[ing] as true all well-pleaded material allegations in the

[Complaint and the documents attached thereto], as well as all inferences reasonably

deduced therefrom[,]” and resolving any doubt in favor of overruling the preliminary

objection, as we must, because it does not “appear with certainty that . . . [Plaintiffs

have failed to state a legally sufficient failure to warn and instruct claim against

Defendants],” Torres, 997 A.2d at 1245 (emphasis added), Defendants’ PO 5

(Demurrer - Failure to Warn and Instruct Claim) is overruled.

PO 6 (Demurrer - Negligence Claim)

Defendants object to Plaintiffs’ Fourth Cause of Action - Negligence -

on the basis that Plaintiffs failed to plead the essential elements of a negligence

theory, and seek judicial recognition of an expansive new duty in the product

manufacturer to the public at large to protect the environment not only from the

intended use, but also the disposal, spillage, leakage, and dumping of their PCB

products, by third parties, contrary to Pennsylvania law. Specifically, Defendants

claim that they do not have a duty to protect against every possible risk to every

member of the public at large, so they “owed no duty to Plaintiffs (or the general

public) under Pennsylvania law. Additionally, [they] owed no duty to protect

Plaintiffs from alleged harm caused by the disposal, spillage, or leakage of PCBs by

third parties over whom [Monsanto] had no control.” Defendants’ Supporting Br. at

30.

63

In their brief, Plaintiffs declare that the factors spelled out in Althaus v.

Cohen, 756 A.2d 1166 (Pa. 2000), overwhelmingly weigh in favor of finding that

Defendants owed a duty to the Commonwealth and its residents. Specifically,

Plaintiffs assert: (1) the symbiotic relationship between state government and the

businesses that avail themselves of such states’ markets weighs in favor of finding a

duty here; (2) the risk posed by Defendants’ conduct far outweighs the social utility

of their products, particularly given the myriad unnecessary uses for which

Defendants marketed them; (3) Defendants were able to and did foresee the

environmental harm their PCB products were sure to cause; (4) recognizing the duty

Defendants already owe to use reasonable care, in the negligence claim context it

would not impose further costs, but would enable those adversely affected by

Defendants’ decisions to seek recourse; and (5) the public interest is served by

recognizing that Defendants had a duty to act with reasonable care towards those it

knew would suffer the consequences of environmental contamination with PCBs.

See Plaintiffs’ Br. at 36-37.

“In Pennsylvania, the elements of negligence are: a duty to conform to

a certain standard for the protection of others against unreasonable risks; the

defendant’s failure to conform to that standard; a causal connection between the

conduct and the resulting injury; and actual loss or damage to the plaintiff.”26

Brewington for Brewington v. City of Phila., 199 A.3d 348, 355 (Pa. 2018). “Of

these four elements, the primary one is whether the defendant owed a duty of care.

[See] Althaus[.]” Phillips v. Cricket Lighters, 841 A.2d 1000, 1008 (Pa. 2003)

(plurality).

26

“[A] plaintiff can rely on the same conditions for nuisance to state a separate negligence

claim if there is an allegation of a breach of a legal duty.” Lloyd v. Covanta Plymouth Renewable

Energy, LLC, 517 F. Supp. 3d 328, 332 (E.D. Pa. 2021).

64

“In general, anyone who does an affirmative act is under a duty to

others to exercise the care of a reasonable man to protect them against an

unreasonable risk of harm to them arising out of the act.” Second Restatement

§ 302, Comment a (emphasis added). This Court has clarified:

Whether a duty exists in any given situation depends

upon the relationship existing between the parties at a

particular time. Burman v. Golay [&] Co[.], Inc., . . . 616

A.2d 657 ([Pa. Super.] 1992) . . . . Where the parties are

strangers to each other, however, such a relationship may

be inferred from the general duty imposed on all persons

not to place others at risk of harm through their actions.

Alumni Assoc., Delta Zeta of Lambda Chi Alpha

Fraternity v. Sullivan, . . . 535 A.2d 1095 ([Pa. Super.]

1987), aff’d, . . . 572 A.2d 1209 ([Pa.] 1990).

However, the scope of this duty is limited; it is not the law

of Pennsylvania that a party owes a duty of care to every

individual with whom that party may randomly come into

contact. Rather, to the extent that there is any duty at all,

it is only a duty not to expose others to risks which are

reasonably foreseeable. Braxton v. Dep[’]t of

Transp[.], . . . 634 A.2d 1150 ([Pa. Cmwlth.] 1993)[.]

Hicks v. Metro. Edison Co., 665 A.2d 529, 532-33 (Pa. Cmwlth. 1995) (emphasis

added).

To determine whether the defendant owed a duty of care,

we must weigh the following five factors: “(1) the

relationship between the parties; (2) the social utility of the

[defendant’s] conduct; (3) the nature of the risk imposed

and foreseeability of the harm incurred; (4) the

consequences of imposing a duty upon the [defendant];

and (5) the overall public interest in the proposed

solution.” [Althaus, 756 A.2d] at 1169. No one of these

five factors is dispositive. Rather, a duty will be found to

exist where the balance of these factors weighs in favor of

placing such a burden on a defendant.

Cricket Lighters, 841 A.2d at 1008-09.

65

Here, Plaintiffs allege in the Complaint:

308. Defendants knew or should have known their PCB

mixtures were not safe and were likely to contaminate

natural resources within the Commonwealth, and cause

toxic contamination of the Commonwealth’s natural

resources.

309. Defendants knew or should have known their PCB

mixtures were unsafe to an extent beyond that which

would be contemplated by an ordinary person because of

the information and evidence available to them associating

PCB exposure with adverse human and animal health

effects as well as the overwhelming seriousness of

creating widespread environmental contamination.

310. Defendants failed to exercise ordinary care because a

reasonably careful company that knew or should have

known of its products’ toxicity, carcinogenicity,

harmfulness to humans, and harmfulness to the natural

environment would not manufacture or distribute those

products, or would warn of their toxic and

environmentally hazardous properties, or would take steps

to enhance the safety and/or reduce the toxicity and

environmental persistence of the products.

311. Defendants failed to exercise ordinary care because a

reasonably careful company that knew or should have

known that its products could not be contained during

normal production and use would not continue to

manufacture or distribute those products or would warn of

their dangers.

312. Defendants failed to exercise ordinary care because a

reasonably careful company would not continue to

manufacture or distribute PCB mixtures in mass quantities

and to the extent and in the applications that Defendants

manufactured and distributed them.

313. Defendants further were grossly negligent because

they failed to exercise even slight care, placing revenue

and profit generation above human and environmental

health and safety. Indeed, Defendants’ conduct was

wanton, willful, and showed a reckless disregard or

66

conscious indifference for the rights and safety of the

Commonwealth and its citizens.

314. Defendants owed the Commonwealth and its citizens

a duty of care in the manufacture, distribution, marketing,

promotion, and sale of PCB mixtures because it was

foreseeable to Defendants that their PCB mixtures would

end up in the Commonwealth’s natural resources,

including waterways, waterbodies, aquifers, soils, lands

and submerged lands, sediments, fish and animal tissue,

above-ground plants and food crops, biota, and air.

315. The seriousness of the environmental and human

health risk posed by Defendants’ products far outweighs

any social utility of Defendants’ conduct in manufacturing

their commercial PCB mixtures and concealing the

dangers posed to human health and the environment.

316. The rights, interests, and inconvenience to the

Commonwealth and general public far outweigh the

rights, interests, and inconvenience to Defendants, which

profited heavily from the manufacture, sale, and

distribution of [their] commercial PCB mixtures.

317. Defendants’ negligent conduct caused and continues

to cause injury to the physical and economic health and

well-being of the Commonwealth’s citizens, as well as the

public’s free use and comfortable enjoyment of the

Commonwealth’s natural resources for commerce,

navigation, fishing, recreation, and aesthetic enjoyment.

318. The Commonwealth has suffered and will continue

to suffer injuries to its natural resources, and damages to

its public treasury as a result of Defendants’ negligent

conduct.

319. Defendants are under a continuing duty to act to

correct and remediate the injuries their conduct has

introduced and to warn the Commonwealth, their

customers, and the public about the human and

environmental risks posed by [their] PCBs, and each day

on which [they] fail[] to do so constitutes a new injury to

the Commonwealth.

67

Complaint ¶¶ 308-319. Plaintiffs have clearly pled that Defendants owed a duty of

reasonable care, they failed to exercise reasonable care, and Plaintiffs have suffered

and may continue to suffer harm and sustain damages because of Defendants’

purported failure to exercise reasonable care.

Regarding Defendants’ claim that Plaintiffs are attempting to impose a

new environmental tort duty on a product manufacturer to the general public, this

Court acknowledges that, in light of the General Assembly’s “superior tools and

resources[,]” the General Assembly is better suited than the courts to determine

whether a duty exists as a matter of law. Seebold v. Prison Health Servs., Inc., 57

A.3d 1232, 1245 (Pa. 2012). Moreover, the Pennsylvania Supreme Court “has []

adopted the default position that, unless the justifications for and consequences of

judicial policymaking are reasonably clear with the balance of factors favorably

predominating, [it] will not impose new affirmative duties.” Id. However, if and

when in the absence of legislative recognition that a change is warranted, “[b]efore

a change in the law is made, a court, if it is to act responsibly must be able to see

with reasonable clarity the results of its decision and to say with reasonable certainty

that the change will serve the best interests of society.” Cafazzo v. Cent. Med. Health

Servs., Inc., 668 A.2d 521, 527 (Pa. 1995) (quoting Hoven v. Kelble, 256 N.W.2d

379, 391 (Wis. 1977)); see also Seebold (applying this stricture to duty in a

negligence action). Accordingly, to the extent that Defendants in this case may not

already have a duty, if this Court can “say with reasonable certainty that the change

will serve the best interests of society[,]” Cafazzo, 668 A.2d at 527 (quoting Hoven,

256 N.W.2d at 391), it can establish a new affirmative duty.

Further, relative to Defendants’ claim that the public is beyond the orbit

of danger in this case, while bystanders are often determined to be beyond a

foreseeable orbit of danger, see Hicks, it is not outside the realm of possibility that

Plaintiffs could establish a sufficient relationship between Commonwealth

68

citizens/Plaintiffs’ natural resources and Defendants, such that Defendants owed a

duty to Plaintiffs. See Webb; Kiak; Schmidt.

The evidence Plaintiffs produce during discovery and/or trial could

potentially affect the determination of whether Defendants owed a duty of care to

the Commonwealth and/or its citizens, and whether the manufacture, distribution,

marketing, promotion, sale, disposal, spillage, or leakage of PCBs breached that

duty. Accordingly, whether Plaintiffs will ultimately be able to prove each of these

elements is a matter for the parties to determine after discovery, not now on

preliminary objections.

“[A]ccept[ing] as true all well-pleaded material allegations in the

[Complaint and the documents attached thereto], as well as all inferences reasonably

deduced therefrom[,]” and resolving any doubt in favor of overruling the preliminary

objection, as we must, because it does not “appear with certainty that . . . [Plaintiffs

have failed to state a legally sufficient negligence claim against Defendants],”

Torres, 997 A.2d at 1245 (emphasis added), Defendants’ PO 6 (Demurrer -

Negligence Claim) is overruled.

PO 7 (Demurrer - Unjust Enrichment Claim)

Defendants object to Plaintiffs’ Sixth Cause of Action - Unjust

Enrichment - on the basis that Plaintiffs failed to plead that the Commonwealth

conferred any benefit on Monsanto, that Plaintiffs requested or expected

compensation from Monsanto before undertaking any measures to investigate or

remediate PCBs or that they took any steps to secure an agreement from Monsanto

to compensate the Commonwealth, or that Monsanto has actually obtained,

appreciated, or accepted any benefit from the Commonwealth.

69

This Court has explained:

Unjust [e]nrichment is an equitable doctrine. Styer v.

Hugo, . . . 619 A.2d 347 ([Pa. Super.] 1993), aff[’]d, . . .

637 A.2d 276 ([Pa.] 1994). Under the doctrine, the law

implies that a contract exists when a party is found to have

been unjustly enriched; the doctrine requires the offending

party to pay the plaintiff the value of the benefit he has

conferred on the defendant. Mitchell v. Moore, 729 A.2d

1200 (Pa. Super. 1999) . . . . A party alleging that a

defendant has been unjustly enriched must establish the

following: (1) plaintiff conferred a benefit on the

defendant; (2) the defendant appreciated the benefit; and

(3) acceptance and retention by the defendant of the

benefit[], under the circumstances, would make it

inequitable for the defendant to retain the benefit without

paying for the value of the benefit. Styer, 619 A.2d at 350.

Further, a defendant need not have accepted and

appreciated the benefit intentionally; instead, the focus

remains on the question of whether the defendant has been

unjustly enriched. Torchia v. Torchia, . . . 499 A.2d 581

([Pa. Super.] 1985). Additionally, the plaintiff bears the

burden of establishing either that the defendant wrongfully

secured the benefit or passively received a benefit that it

would be unconscionable to retain. Id.

TAP II, 885 A.2d at

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