Atlantic Richfield Co. v. The County of Lehigh, PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Atlantic Richfield Company, E.I. du :

Pont de Nemours and Company, NL :

Industries, Inc., PPG Industries, Inc., :

and The Sherwin-Williams Company, :

Appellants :

:

v. : No. 1260 C.D. 2021

:

The County of Lehigh, Pennsylvania : Argued: December 14, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE CEISLER FILED: May 5, 2023

Atlantic Richfield Company, E.I. du Pont de Nemours and Company, NL

Industries, Inc., PPG Industries, Inc., and The Sherwin-Williams Company

(together, Manufacturers) appeal from the August 6, 2021 Order of the Court of

Common Pleas of Lehigh County (Trial Court) overruling their Preliminary

Objections to the County of Lehigh’s (County) Amended Complaint in this public

nuisance action. In the Amended Complaint, the County seeks a declaratory

judgment that lead paint is a public nuisance under the common law as well as the

Lead Certification Act (Certification Act), Act of July 6, 1995, P.L. 291, No. 44, 35

P.S. §§ 5901-5916. On appeal, the Manufacturers argue that the County’s proposed

interpretation of the Certification Act is contrary to its plain language and legislative

intent and that the County has failed to establish proximate causation under

Pennsylvania tort law. Upon review, we reverse the Order and remand to the Trial

Court for the entry of an order dismissing the Amended Complaint.

I. Background

The Manufacturers are businesses that “manufactured, sold, distributed,

and/or promoted” paints or pigments for household use between 1880 and 1977, or

are the successors-in-interest to such businesses. Original Record (O.R.), Item No.

4, Am. Compl. ¶¶ 15, 19, 24, 29, 33. During that period, lead was a prevalent

ingredient in many types of paints intended and sold for exterior and interior

residential use. Id. ¶ 35. The use of lead paint is associated with various health

hazards that have been widely known since classical antiquity. Id. However, the

Manufacturers continued to market lead paint in ways that omitted or obfuscated

these health hazards. Id. ¶ 94.

The danger of lead paint arises from its tendency to erode over time into chips,

flakes, and dust, which are then deposited on floors, windows, and other inside

surfaces. Id. ¶ 36. Because children normally engage in “hand-to-mouth” behavior

as part of their physical and mental development, they are particularly vulnerable to

such sources of contamination. Id. ¶ 37. Exacerbating the danger is the especially

hazardous effect of lead on children; exposure can lead to devastating and permanent

mental injuries. Id. ¶ 38. Beyond the individual health consequences, lead

poisoning creates a cumulative, deleterious effect on whole communities by

depriving them of well-adjusted, happy, and productive citizens. Id. ¶ 44. Because

of its dangers, the federal government banned the manufacture and sale of lead paint

in 1978. Id. ¶ 46. Leading experts agree, however, that deteriorating lead paint

continues to be the primary source of lead poisoning in young children today. Id. ¶

46.

2

With a population of approximately 350,000 people, the County is the tenth-

most populous in Pennsylvania. Id. ¶ 7. The County estimates that 88,979 of its

residential structures, or 63.8% of the total, were built before lead paint was banned

and, therefore, may be “contaminated by lead paint.” Id. ¶¶ 9, 10. However, the

risks of lead exposure are particularly serious in rental housing inhabited by low-

income families, where painted surfaces tend to be poorly maintained. See id. ¶¶ 51-

52. Using United States Census data, the County estimates that at least 4,512 of its

residential structures are “in critical and immediate need of abatement to address the

risks posed by lead paint hazards.” Id. ¶ 53.

The County initiated this action by filing a Complaint in the Trial Court on

October 12, 2018.1 See O.R., Item No. 2. The Complaint consisted of two counts.

The first was a common law public nuisance claim, in which the County asserted

that the continued presence of lead paint in County residences “pose[s] a past,

present, and ongoing risk of lead poisoning” to their inhabitants, particularly

children. Id. ¶ 117. The County maintained that the Manufacturers’ conduct “is a

direct, legal, and proximate cause of [a] public nuisance currently afflicting the

County and its citizens.” Id. ¶ 121. The second count sought a declaratory judgment

that Section 2(a) of the Certification Act2 “explicitly and/or implicitly identified”

1

On October 4, 2018, the County of Montgomery also filed an action in the Court of

Common Pleas of Montgomery County, in which it made substantially the same allegations, and

sought substantially the same relief, as the County in the instant matter. The County of

Montgomery action is the basis of a separate appeal before this Court. See Atl. Richfield Co. v.

Montgomery County, ___ A.3d ___ (Pa. Cmwlth., No. 1338 C.D. 2021, filed May 5, 2023).

2

Section 2(a) of the Certification Act provides:

(a) Findings.--The General Assembly finds as follows:

(Footnote continued on next page…)

3

lead-based paint as a public nuisance. Id. ¶¶ 126-29. As a proposed remedy, the

County called for the cost of abatement of lead paint “throughout the County,”

among other damages. See id. ¶ 130.

On November 3, 2020, the County filed an Amended Complaint, which is the

operative complaint at issue in this appeal. See O.R., Item No. 19, Am. Compl. It

included a single count, in which the County again alleged that lead paint

“constitute[s] a public nuisance under the common law of Pennsylvania.” Id. ¶ 123.

The County also reiterated its assertion that Section 2(a) declares lead paint a public

nuisance. Id. ¶ 124. It further argued that it had the power bring suit against the

Manufacturers pursuant to Section 2(a). Id. ¶ 133. As a remedy, the County

proposed a declaratory judgment that lead paint is a public nuisance, plus an award

of the cost of abating affected properties, and other damages, which the County

referred to as “supplemental relief.” Id. ¶ 134.

The Manufacturers filed their Preliminary Objections to the Amended

Complaint on December 21, 2020. See O.R., Item No. 35, POs. Their first objection,

in the nature of a demurrer, asserts that the County’s claim fails to satisfy the

(1) Lead poisoning is a significant health hazard to the citizens of this

Commonwealth. Lead poisoning is particularly a hazard to children who typically

are exposed to lead through environmental sources such as lead-based paint in

housing and lead-contaminated dust and soil. It is the policy of this Commonwealth

to protect the health and welfare of its citizens through reduction of lead in the

environment.

(2) Improper abatement of lead-based paint within this Commonwealth constitutes

a serious threat to the public health and safety and to the environment. The handling

of lead-containing substances by inadequately trained employers, employees and

other persons subjects the citizens of this Commonwealth to the risk of further

release of lead into the environment.

35 P.S. § 5902(a).

4

necessary elements of common law public nuisance. Id. ¶ 5. Specifically, the

Manufacturers argue that a public nuisance plaintiff must allege that the defendant

maintained control over the nuisance, that the defendant’s conduct interfered with a

“right common to all members of the public,” and that the conduct was the proximate

cause of the alleged injuries. See id. ¶¶ 6, 8 (citing Restatement (Second) of Torts

§ 821 cmt. g) (Am. Law Inst. 1965)). The Manufacturers further assert that the

County did not sufficiently allege causation, since it is the poor maintenance of

existing lead paint, in the decades since any of the Manufacturers last sold lead paint,

which is the proximate cause of the injuries. Id. ¶ 9. Furthermore, the Manufacturers

assert, the County only alleged private, personal injuries, rather than any interference

with a public right. Id. ¶ 8.

The Manufacturers’ second objection, also in the nature of a demurrer, asserts

that the County’s allegations lacked any support in the Certification Act. Id. ¶ 12.

The Manufacturers explained that the legislation “regulates the training, certification

and performance of persons engaged in lead abatement,” not the manufacture of lead

paint. Id. ¶ 13 (citing Section 2(a) of the Certification Act, 35 P.S. § 5902(a)(2)).

The Manufacturers additionally argue that the Certification Act does not declare a

public nuisance of any sort, does not authorize legal action unless its provisions have

been violated, and grants the Department of Labor and Industry (Department) the

exclusive authority to enforce those provisions.3 Id. ¶ 15.

3

The Manufacturers also asserted that the County failed to join necessary parties pursuant

to Pennsylvania Rule of Civil Procedure 1028(a)(5). Pa.R.Civ.P. 1028(a)(5). Specifically, the

Manufacturers argued that the County should have joined the individual property owners, since

the remedies sought “would subject [them] to potential criminal and civil liability.” O.R., Item

No. 35, POs ¶ 16. However, that issue is not one of the issues on which this Court granted the

appeal.

5

In opposition to the Preliminary Objections, the County clarified that it sought

“declaratory relief only on the basis of [the Certification Act, which] focused entirely

and specifically on the hazards of lead paint.” O.R., Item No. 60, County’s

Memorandum (Mem.) of Law at 1 (emphasis added). In enacting the Certification

Act, the County argued, the General Assembly declared that “lead paint is, in and of

itself, always and everywhere a health hazard.” Id. at 27. Accordingly, the County

explains, “Pennsylvania state law is clear: lead paint is illegal in Pennsylvania,

always and everywhere.” Id. at 27. The County maintained, however, that it

satisfied the elements of a common law public nuisance claim. See generally id. at

9-23.

In an August 6, 2021 Order, the Trial Court overruled the Manufacturers’

Preliminary Objections. See O.R., Item No. 84. The Manufacturers then filed a

motion asking that the Trial Court either reconsider its decision or grant permission

for interlocutory appeal, which, too, was denied in a September 13, 2021 order. See

O.R., Item No. 89. The Trial Court has not issued an opinion in support of either

order pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).4 Pa.R.A.P.

1925(a). On February 18, 2022, this Court granted a petition for permission to

appeal, which was limited to the following issues:

Whether the Amended Complaint states a claim for public nuisance

where the County seeks declaratory relief only on the basis of the . . .

Certification Act, 35 P.S. [§§ 5901-5916] . . . which does not declare

any public nuisance but rather authorizes the [Department] to regulate

contractors engaged in lead abatement?

4

Pa.R.A.P. 1925(a) provides that, upon the receipt of a notice of appeal, “the judge who

entered the order giving rise to the notice of appeal, if the reasons for the order do not already

appear of record, shall . . . file of record at least a brief opinion of the reasons for the order.”

6

Whether the Pennsylvania Supreme Court’s decision in Skipworth v.

Lead Industries Association, 690 A.2d 169 (Pa. 1997), affirming the

general rule of proximate causation and rejecting market-share and

alternative liability, requires dismissal because the County admittedly

does not “identify the manufacturer of any of the lead pigment”

supposedly at any property that is part of the alleged public nuisance?

O.R., Item No. 118.

II. Issues

The Manufacturers argue that the Certification Act does not support a claim

that the mere presence of lead paint is a public nuisance. According to the

Manufacturers, such an interpretation is contrary to the Certification Act’s plain

language, broad structure, history, and application. The Manufacturers further argue

that, if this Court considers the County’s common law nuisance claim, the County

failed to identify the Manufacturers on a property-by-property basis, as is required

to establish causation. Consequently, the Manufacturers argue that the Trial Court

erred as a matter of law in overruling their Preliminary Objections.

III. Discussion

Our scope of review of a trial court’s ruling on preliminary objections is

limited to a determination of whether the trial court abused its discretion or

committed an error of law. Leahy v. Pa. Liquor Control Bd., 551 A.2d 1153, 1156

(Pa. Cmwlth. 1988). Preliminary objections are to be sustained only in cases where

the pleader has clearly failed to state a claim for which relief can be granted. Torres

v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010). Where a preliminary objection

presents a question of law, our standard of review is de novo and our scope of review

is plenary. Firearm Owners Against Crime v. City of Harrisburg, 218 A.3d 497,

505 (Pa. Cmwlth. 2019).

7

A. Lead Paint as a Public Nuisance Pursuant to the Certification Act

The Manufacturers argue that the Certification Act does not declare, in any

fashion, the presence of lead paint to be a public nuisance. O.R., Item No. 35,

Manufacturers’ Preliminary Objections (POs) ¶ 12. Rather, they argue, the

Certification Act is solely concerned with “the training, certification, and

performance of persons engaged in lead abatement.” Id. ¶ 13. According to the

Manufacturers, the Certification Act’s findings state only that lead poisoning, not

lead paint, is a health hazard, and that improper abatement poses a threat to public

health. Id. ¶ 14. Furthermore, the Manufacturers argue, the Certification Act grants

exclusive enforcement authority to the Department, and even then, only for

violations of the Certification Act (which the County did not allege). Id. ¶ 15. Thus,

the Manufacturers argue that the Trial Court improperly overruled their Preliminary

Objection to the County’s statutory public nuisance claim.

A brief recounting of the Certification Act’s historical background aids in

clarifying its purpose. In 1992, the United States Congress enacted the Residential

Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. §§ 4851-4856 (Hazard

Reduction Act). The legislation was enacted with the purpose of “radically alter[ing]

the federal paradigm for identifying and treating lead-based paint hazards” by

“targeting federal efforts to the reduction and elimination of actual, not potential

hazards, and by permitting interim hazard reduction measures, rather than full hazard

elimination.” S. Rep. No. 102-332, at 111 (1992). One of the Hazard Reduction

Act’s measures was the provision of up to $250 million in federal grants “to assist

cities and states in addressing the enormous lead paint poisoning risks posed by

private low income housing.” Id. at 115. To be eligible, a state was required to

8

develop and obtain federal approval of its own lead-reduction program. See 15

U.S.C. § 2684(a)-(g).

Just minutes before the Pennsylvania House of Representatives passed the

Certification Act unanimously in 1995, the legislation’s sponsor explained that it

was drafted to “fulfill the requirements contained in the . . . Hazard Reduction Act .

. . , which stipulates that States must develop programs for the certification of lead-

based paint workers and the accreditation of lead-based paint training providers.”

Legislative Journal–House, June 21, 1995, at 1628.5 Urging passage, the sponsor

explained that the legislation would “allow Pennsylvania to draw down millions of

dollars in federal funds to assist in lead abatement work.” Id.

In Section 2(a)(1) of the Certification Act, the General Assembly cited two

key findings as the basis for the legislation: first, that lead poisoning had become “a

significant health hazard to the citizens of this Commonwealth”; and, second, that

“[i]mproper abatement of lead-based paint within this Commonwealth constitutes a

serious threat to the public health and safety and to the environment.” 35 P.S.

§ 5902(a)(1). More specifically, the “handling of lead-containing substances by

inadequately trained employers, employees and other persons subjects the citizens

of this Commonwealth to the risk of further release of lead into the environment.”

Section 2(a)(2), 35 P.S. § 5902(a)(2).

The General Assembly’s stated intent in enacting the Certification Act is to

address the above concerns “by preventing exposure to lead through regulation of

lead-based paint activities”; by “establish[ing] a program to train individuals

engaged in lead-based paint activities to insure they have the necessary skill,

5

While intent cannot be conclusively determined from legislative remarks, this Court may

review legislative policy reasons expressed in the House and Senate journals as an aid in

construction. Young v. Ins. Dep’t, 604 A.2d 1105, 1108 n.8 (Pa. Cmwlth. 1992).

9

training, experience and competence to perform” them; by “monitor[ing] the work

practices of those persons performing lead-based paint activities”; and by “insur[ing]

that the cleanup, disposal and post[-]abatement clearance testing activities of persons

performing lead-based paint activities are performed in accordance with required

standards.” Section 2(b)(1)-(4), 35 P.S. § 5902(b)(1)-(4). “Lead-based paint

activities” is defined as “risk assessment, inspection, and abatement.” Section 3 of

the Certification Act, 35 P.S. § 5903. In turn, “abatement” includes “[l]ess-than-full

abatement whereby the sources of lead contamination are reduced sufficiently to

create a ‘lead-safe’ environment rather than a ‘lead-free’ environment.” Id.

(emphasis added). In furtherance of its aims, the Certification Act empowers the

Department “to issue an order requiring compliance with this [A]ct or regulations

promulgated under this [A]ct.” Section 10(a) of the Certification Act, 35 P.S.

§ 5910(a).

Instantly, the County avers that in Section 2 of the Certification Act, the

General Assembly “has explicitly and/or implicitly declared that lead paint is a

public nuisance.” O.R., Item No. 19, Am. Compl. ¶ 124. The County further claims

that it has brought the instant action pursuant to Section 2, which empowers the

County to “enforce the public rights of its citizenry.” Id. ¶ 125. Additionally, the

County explains that it derives this power from Section 10(d)(4), which, in the

County’s view, authorizes the “initiation of legal action or proceeding in a court of

competent jurisdiction” for violations of a regulation promulgated under the

Certification Act. Id. (citing 35 P.S. § 5910(d)(4)).

We begin our analysis by rejecting the County’s contention that the

Certification Act “explicitly” declares anything to be a public nuisance. Such a

declaration would be self-evident through the use of clear legislative language. See,

10

e.g., Act of June 23, 1931, P.L. 1178, No. 319, 68 P.S. § 467 (providing that “any

building, or part of a building, used for the purpose of fornication, lewdness,

assignation, and/or prostitution is hereby declared to be a common nuisance”);

Section 3 of the Clean Streams Law,6 35 P.S. § 691.3 (providing that the pollution

of Commonwealth waters “is hereby declared not to be a reasonable or natural use

of such waters, to be against public policy and to be a public nuisance”) (emphases

added). The Certification Act, by contrast, does not contain a single occurrence of

the word “nuisance.”

Next, we consider the argument that the General Assembly “implicitly”

declared lead paint to be a public nuisance. Our courts have, on occasion,

determined certain conduct to be a public nuisance “because it is so declared by

statute . . . implicitly.” Com. v. MacDonald, 347 A.2d 290, 303 (Pa. 1975). In

Pennsylvania Society for Prevention of Cruelty to Animals v. Bravo Enterprises,

Inc., 237 A.2d 342, 360 (Pa. 1968), for example, our Supreme Court reasoned that a

statute outlawing bullfighting “is declarative of the public policy and is tantamount

to calling the proscribed matter prejudicial to the interests of the public.” Reasoning

that “[i]njury to the public is the essence of a public nuisance,” the Court concluded

that the statute implicitly declared bullfighting to be “properly enjoinable as being

contrary to law and prejudicial to the interests of the public.” Id. In other words,

the statute’s prohibition of the underlying conduct was a necessary condition to the

determination that the statute implicitly declared that conduct to be a public

nuisance. See also MacDonald, 347 A.2d at 290 n.30 (explaining that Bravo

Enterprises stands for the proposition that “bullfighting is [a] public nuisance

because [it is] proscribed by statute”); Phila. Chewing Gum Corp. v. Dep’t of Env’t

6

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

11

Res., 387 A.2d 142, 150 n.5 (Pa. Cmwlth. 1978) (determining that conduct

prohibited by Section 316 of the Clean Streams Law, 35 P.S. § 691.316, “constitutes

an implicitly declared statutory public nuisance”), aff’d in part, rev’d in part,

Natural Wood Preservers, Inc. v. Dep’t of Env’t Res., 414 A.2d 37 (Pa. 1980).

The Certification Act stands in stark contrast to the statutes that our courts

have interpreted to implicitly declare public nuisances. There is nothing in the

Certification Act that retroactively proscribes the past manufacture and sale of lead

paint, which is the only conduct the Amended Complaint attributes to the

Manufacturers. Indeed, the Certification Act’s stated intent, its plain language, its

drafting history, and its mechanisms of enforcement all indicate that the legislation

was enacted to address the dangers posed by the improper abatement of lead paint.

We conclude that, contrary to the County’s assertions, the Certification Act does not

declare, explicitly or implicitly, that all lead paint is a public nuisance. Indeed,

Section 3 specifically provides that proper abatement may create a “‘lead-safe’

environment” rather than one that is “‘lead-free.’” 35 P.S. § 5903.

In addition, the County misinterprets the Certification Act’s enforcement

provisions. It is true that Section 10(d)(4) provides that “a person who fails to

comply with a requirement of this [A]ct or a regulation promulgated under this [A]ct

or who fails to obey an order issued by the [D]epartment may be subject to . . .

initiation of legal action or proceeding in a court of competent jurisdiction.” 35 P.S.

§ 5910(d)(4). However, the preceding subsections of Section 10 grant only the

Department the power of enforcement.7 See id. § 5910(b) (authorizing the

Department to “issue an order requiring compliance with this [A]ct or regulations

7

In interpreting Section 10(d)(4) of the Certification Act, we are mindful that “a court

should not interpret statutory words in isolation, but must read them with reference to the context

in which they appear.” Roethlein v. Portnoff Law Assocs., Ltd., 81 A.3d 816, 822 (Pa. 2013).

12

promulgated under this [A]ct”); id. § 5910(c) (authorizing additional remedies if

“the [D]epartment determines that a hazardous condition exists due to the failure to

comply with a provision of this [A]ct or a regulation promulgated under this [A]ct”);

id. § 5910(d)(1) (authorizing the “[d]enial, suspension or revocation of accreditation

for a person, training provider or contractor”). Section 10(d)(4) therefore cannot be

reasonably interpreted to empower political subdivisions to take action against

alleged violators of the Certification Act or its accompanying regulations. Even if

such a broad interpretation were warranted, the County has not alleged that any

Manufacturer violated a Certification Act regulation.

We conclude that Section 2 of the Certification Act does not declare lead paint

to be a public nuisance. Section 10 of the Certification Act also does not empower

the County or other political subdivisions to enforce its provisions, and even if it did,

the Amended Complaint fails to identify which provision the Manufacturers

allegedly violated. Accordingly, we conclude that the Amended Complaint fails to

state a cause of action for public nuisance under the Certification Act.

B. Lead Paint as a Public Nuisance Pursuant to the Common Law

1. Public Right

Next, the Manufacturers argue that the Amended Complaint “fails to allege

the interference with a public right”; rather, it alleges “a risk of personal injury from

lead paint to individuals within privately owned—not [publicly] accessible—

residences.” O.R., Item No. 35, POs ¶ 8.

13

Section 821B of the Restatement (Second) of Torts (Am. Law Inst. 1965)

(Restatement (2nd)), on which Pennsylvania courts rely in public nuisance actions,8

provides:

(1) A public nuisance is an unreasonable interference with a right

common to the general public.

(2) Circumstances that may sustain a holding that an interference with

a public right is unreasonable include the following:

(a) whether the conduct involves a significant interference with

the public health, the public safety, the public peace, the public

comfort or the public convenience, or

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

administrative regulation, or

(c) whether the conduct is of a continuing nature or has produced

a permanent or long-lasting effect, and, as the actor knows or has

reason to know, has a significant effect upon the public right.

Restatement (2nd) § 821B.

Unlike reasonableness, which is a factual inquiry, whether a right is public is

a question of law. Machipongo Land & Coal Co. v. Com., 799 A.2d 751, 773 (Pa.

2002). In the context of public nuisance claims, a public right is necessarily

collective in nature. Restatement (2nd) § 821B cmt. g. It is not like the individual

right that everyone has not to be assaulted or defamed or defrauded or negligently

injured. Id.; see also Blue Mountain Pres. Ass’n v. Twp. of Eldred, 867 A.2d 692,

704 (Pa. Cmwlth. 2005) (explaining that a public nuisance “affects the general

8

The Restatement (Third) of Torts (Am. Law Inst. 1998) was published in 1998; however,

Pennsylvania remains a Second Restatement jurisdiction until or unless the courts adopt the Third

Restatement definition. Com. v. Monsanto, 269 A.3d 623, 648 n.18 (Pa. Cmwlth. 2021).

14

public,” rather than “merely some private individual or individuals”) (citing Groff v.

Borough of Sellersville, 314 A.2d 328, 330 (Pa. Cmwlth. 1974)).

Because the rights affected by a public nuisance are collective, the nuisance

“produces no greater injury to one person than to another.” Twp. of Eldred, 867

A.2d at 704; see also Greyhound Lines, Inc. v. Peter Pan Bus Lines, Inc., 845 F.

Supp. 295, 302 (E.D. Pa. 1994) (explaining that, under Pennsylvania tort law, “the

law of public nuisance comprehends threats to the public at large, not specific

persons”). The Second Restatement gives the hypothetical example of pollution in

a stream, which, if it “deprives fifty or a hundred lower riparian owners of the use

of the water for purposes connected with their land,” is not a public nuisance.

Restatement (2nd) § 821B cmt. g. “If, however, the pollution prevents the use of a

public bathing beach or kills the fish in a navigable stream and so deprives all

members of the community of the right to fish, it becomes a public nuisance.” Id.

(emphasis added).

Instantly, the County argues that its citizens have “have a common right to be

free from the detrimental effects of exposure to lead paints/pigments in, on, and

around private homes and residences throughout the County.” O.R., Item No. 19,

Am. Compl. ¶ 123. Because the Manufacturers’ conduct has “significantly and

materially” interfered with such rights, and continues to do so, the County alleges,

they are liable for public nuisance. Id. The County further explains that public

nuisances need not only impact “public space[s]” or “shared[,] indivisible

resource[s],” but private dwellings as well. O.R., Item No. 60, County’s Mem. of

Law at 13. In support, the County cites this Court’s decision in Feeley v. Borough

of Ridley Park, 551 A.2d 373 (Pa. Cmwlth. 1988). In that case, we affirmed a lower

court’s finding that a homeowner’s “deplorable state of disrepair, lacking proper

15

plumbing, electricity, or water,” in addition to her failure to care properly for her

many household cats, constituted a public nuisance. Id. at 375. If, the County

argues, this Court could determine that conduct with such a limited impact could be

a public nuisance, then “the poisonous and decaying paint on tens of thousands of

walls of the County’s homes . . . would also qualify.” County’s Mem. of Law at 14.

While it is true that public nuisances may occur on private property, the rights

that are adversely impacted must still be “collective in nature.” Restatement (2nd)

§ 821B cmt. g. The purported rights asserted in the Amended Complaint, by

contrast, are akin to the individual rights “not to be assaulted or defamed or

defrauded or negligently injured,” which cannot give rise to public nuisance actions.

The distinction between public and individual rights still holds even in instances

where the individual rights of a large number of persons have been affected. In

contrast to public nuisances,

[t]he manufacture and distribution of products rarely, if ever, causes a

violation of a public right as that term has been understood in the law

of public nuisance . . . . Even if the owners of a fast-food chain were to

sell millions of defectively produced hamburgers causing harm to

millions of people who ate them, the violation of rights is a series of

separate violations of private rights—typical tort or contract rights that

the consumers might have—not a violation of the rights of the general

public, or of the public as the public. The sheer number of violations

does not transform the harm from individual injury to communal injury.

Donald G. Gifford, Public Nuisance as a Mass Products Liability Tort, 71 U. CIN.

L. REV., 741, 817 (2003) (emphasis added).

For these reasons, we also conclude that Feeley is inapposite here. In that

case, the alleged nuisance consisted entirely of “noxious and overpowering odors

emanating from [the defendant’s] home.” 551 A.2d at 375. Neighbors testified that

the odors “forced [them] to keep their windows closed.” Id. Residents who lived

“down the block and around the corner” were also affected. Id. In other words, it

16

was the collective interest in the neighborhood’s clean air that was impacted, not

merely the accumulation of various injuries to individual property rights. The injury

was therefore more akin to the pollution of a stream that deprives the entire

community of the right to fish than to the injuries alleged by the County.

Furthermore, the plaintiff in Feeley did not allege that the defendant’s conduct

impacted only some neighborhood residents, or impacted some residents

substantially more than others. Feeley is therefore distinguishable from this case in

that one dwelling may be adversely impacted by lead paint, while others nearby may

not be impacted at all. Such individual injuries are distinct from a public nuisance,

which “produces no greater injury to one person than to another.” Twp. of Eldred,

867 A.2d at 704.

2. Causation

Next, the Manufacturers maintain that the Trial Court erred in overruling their

Preliminary Objections because the County has failed to satisfy Pennsylvania tort

law’s “fundamental causation requirement.” Manufacturers’ Br. at 32. Specifically,

the Manufacturers explain that “in order to establish a viable claim for abatement of

lead paint and pigment, a plaintiff must allege on a property-by-property basis that

lead paint or pigment manufactured by a particular identified defendant is present

today and causing harm at a particular property.” Id. at 31-32.

The Manufacturers further argue that the County “is trying to bring the same

claim” as that brought by the unsuccessful plaintiffs in Skipworth. Manufacturers’

Br. at 34. In that case, the child plaintiff had been hospitalized for lead poisoning

after ingesting lead paint in her legal guardian’s home, which was built circa 1870.

Skipworth, 690 A.2d at 170-71. The guardian and mother filed a products liability

action against several paint manufacturers. Id. at 171. Admittedly unable to identify

17

the specific manufacturer that made the lead paint used in the guardian’s home, the

plaintiffs “proceeded against the [defendants] by invoking theories of collective

liability.” Id. The trial court granted summary judgment on all counts and the

Superior Court affirmed, explaining such alternative liability theories have not been

adopted into Pennsylvania law. See Skipworth by Williams v. Lead Indus. Ass’n,

Inc., 665 A.2d 1288, 1291 (Pa. Super. 1995), aff’d, 690 A.2d 169.

On appeal, the primary question before the Supreme Court was whether the

Court “should adopt the market share liability theory in the context of lead poisoning

cases.” Skipworth, 690 A.2d at 171. Describing market share liability as “an

exception to the general rule that a plaintiff must establish that the defendant

proximately caused his or her injury,” the Court compared the matter sub judice to

the seminal case on market share liability, Sindell v. Abbott Laboratories, 607 P.2d

924 (Cal. 1980).9 The Court acknowledged the possibility of a situation such as the

one in Sindell, in which Pennsylvania courts may be compelled “to depart from

[their] time-tested general rule” of proximate causation. Skipworth, 690 A.2d at 172.

However, the Court declined to do so, holding that application of market share

liability to lead paint cases “would lead to a distortion of liability which would be so

gross as to make determinations of culpability arbitrary and unfair.” Id. The Court

explained that, in order to apply market share liability, all of the makers of lead paint

9

In Sindell, the plaintiff suffered severe health complications allegedly caused by

diethylstilbestrol (DES), a medicine once prescribed to prevent miscarriages, taken by her mother

before the plaintiff’s birth. 607 P.2d at 926. Unable to identify the specific manufacturer of her

mother’s drugs, the plaintiff joined as defendants 5 of the approximately 200 drug companies that

were manufacturing DES during the relevant period. Id. at 929. The California Supreme Court

overruled the manufacturers’ preliminary objections and instructed the trial court to apply a

formula whereby “[e]ach defendant will be held liable for the proportion of the judgment

represented by its share of that market unless it demonstrates that it could not have made the

product which caused [the] plaintiff’s injuries.” Id. at 937.

18

during the more than 100 years when it may have been used in the guardian’s home

would have to be held liable. Id. at 173. During that period, many manufacturers

entered and left the lead paint market. Id. Furthermore, the Court noted that the

offending drug in Sindell was a “fungible commodity,” which all companies

manufactured according to a single formula. Id. at 172. Lead paint, by contrast, had

“different chemical formulations, contained different amounts of lead, and differed

in potential toxicity.” Id. at 173. Such complications, the Court held, were “fatal to

[the] claim that application of market share liability to these defendants would be

appropriate.” Id.

In its appellate brief, the County argues that Skipworth is inapposite because

its holding “was specifically limited to products liability cases.” County’s Br. at 23

(emphasis in original). According to the County, in Skipworth, the Supreme Court

ruled out market share liability “in large part because it would be difficult to

ascertain which lead paint manufacturers would have been responsible for the paint

on the walls of that one particular victim’s house.” Id. at 23 (emphasis in original).

That issue, the County argues, is irrelevant to a public nuisance claim, “which by its

nature implicates” all of the Manufacturers in the manufacture, sale, distribution,

and or promotion of lead paint across the County. Id. at 23-24. The usual standard

of proximate causation, the County concludes, is therefore inapplicable.10

10

Although the County argues that proximate causation is not a necessary element of its

claim, it fails to state which theory of liability it believes should be applied in this case. Given the

County’s extensive discussion of Skipworth and attempt to distinguish it, we surmise that it has

market share liability in mind. We note, however, that the Supreme Court in Skipworth briefly

discussed several other liability theories in relation to lead paint litigation and similarly rejected

all of them. See Skipworth, 690 A.2d at 174 (explaining that “alternate liability” was inapplicable

because the defendant manufacturers “did not act simultaneously in producing the lead paint”); id.

(explaining that “conspiracy liability” was inapplicable because the plaintiffs failed to show that

(Footnote continued on next page…)

19

We disagree with the County that Skipworth’s holding was specifically

limited to products liability cases. To the contrary, the Supreme Court clearly stated

that it was considering whether Pennsylvania “should adopt the market share

liability theory in the context of lead poisoning cases.” 690 A.2d at 171 (emphasis

added). After weighing and rejecting the plaintiffs’ arguments, the Supreme Court

concluded that the “[a]pplication of market share liability to lead paint cases such

as this one would lead to a distortion of liability which would be so gross as to make

determinations of culpability arbitrary and unfair.” Id. at 172 (emphasis added).

The Supreme Court’s rationale for rejecting market share liability further

militates against distinguishing Skipworth from the instant matter. The inherent

difficulties of apportioning liability, which the Court determined would prevent the

fair application of market share liability in lead paint cases, are just as relevant in

this case. For example, the Skipworth Court expressed skepticism that accurate

market share estimates would ever be obtainable, “considering the lengthy relevant

time period in question.”11 690 A.2d at 173. Even if they were obtainable, the Court

concluded, such estimates “would not serve to approximate [a] defendant’s

responsibility for injuries caused by its lead paint,” given the varying levels of

two or more defendants had “combined or agreed with intent to do an unlawful act or to do an

otherwise lawful act by unlawful means”); id. at 174-75 (explaining that “concert of action”

liability is inapplicable because the plaintiffs failed to “identify the wrongdoer or the person who

acted in concert with the wrongdoer”). Since these liability theories appear to be inapplicable to

this case for the same reasons as in Skipworth, we do not address them.

11

We note that Skipworth involved a period nearly identical to the relevant period in this

matter. The Skipworth plaintiffs “alleged that they had identified and joined in this action

substantially all of the manufacturers of lead pigment used in residential house paint from 1870,”

when the guardian’s house was built, “until production of lead pigment ceased in 1977.” 690 A.2d

at 171. Here, the County seeks damages for lead paint manufactured and sold in the County

between 1880 and 1978.

20

toxicity and bioavailability in different paint formulas, among other factors. Id. The

“distortion of liability” that the Supreme Court anticipated would result does not

depend on the specific legal theory being advanced by the plaintiff. As the Supreme

Court observed, the essential purpose of market share liability is to ensure that “each

manufacturer’s liability would approximate its responsibility for the injuries caused

by its own products.” Id. Whether a plaintiff alleges negligence or a public

nuisance, the same impediments to a reliably accurate calculation of liability prevent

the market share liability theory from being fairly applied in the lead paint context.12

The County maintains that “any continued reference to Skipworth and other

products liability cases is simply a red herring,” since its public nuisance action does

not seek relief for private harms. County’s Br. at 25. The Trial Court agreed,

explaining that “Skipworth . . . was a [products liability] suit on behalf of one

12

In its appellate brief, the County relies on this Court’s recent decision in Monsanto,

which, in the County’s view, stands for the proposition that the public nuisance plaintiff “need not

meet any of the elements of product liability law.” County’s Br. at 31. In Monsanto, the

Commonwealth brought an action against a chemical corporation’s successors for the release of

polychlorinated biphenyls (PCBs) into public waterways, in violation of Section 3 of the Clean

Streams Law, 35 P.S. § 691.3. The Commonwealth alleged, inter alia, that the release of PCBs

constituted a public nuisance. 269 A.3d at 635. The defendants objected on the basis that the

chemicals had been sold to third parties by the time of their discharge into the waterways, and that

“Pennsylvania does not impose nuisance liability against a manufacturer after placing a product

into the stream of commerce.” Id. at 648. This Court overruled the objection, explaining: “the

[Commonwealth] clearly declare[d] that [the d]efendants are responsible for PCBs entering the

Commonwealth’s waters because [the d]efendants knew that the uses for which they marketed,

sold, and distributed PCB mixtures would result in leaching, leaking, and escaping their intended

applications and contaminating (i.e., polluting) those waters.” Id. at 653.

We conclude that Monsanto is distinguishable from this case for two reasons. First, the

defendants in Monsanto allegedly engaged in conduct that had been explicitly declared by a statute

to be a public nuisance, which, this Court noted, would constitute a nuisance per se. Id. at 649.

Second, the Commonwealth alleged harm to public waterways, which, as this Court concluded,

constituted an “offense that annoys the community in general.” Id. (citing SPTR, Inc. v. City of

Phila., 150 A.3d 160, 167 (Pa. Cmwlth. 2016)).

21

individual, so it would make sense to require proof of the manufacturer of the paint

that injured that individual. By contrast, the [C]ounty here alleges widespread harm

throughout the community.” O.R., Item No. 100 n.1. We disagree that such

purported differences justify distinguishing this matter from Skipworth. As

explained in the foregoing section, the harms alleged by the County, even if alleged

to have occurred in large numbers, do not constitute the injury to communal interests

required of a public nuisance claim. Since the County only alleges individual harms

occurring on private property as an alleged result of the Manufacturers’ products,

we agree with the Manufacturers that the County’s claim is essentially a veiled

products liability claim in the guise of a public nuisance action. For this additional

reason, we conclude that Skipworth’s holding is properly applied to this matter.

IV. Conclusion

We conclude that the County has failed to identify a statutory basis for its

public nuisance action, or to allege that the Manufacturers proximately caused the

County’s alleged injuries pursuant to Pennsylvania tort law. As a consequence, the

Amended Complaint fails to state a claim for which relief can be granted. We

reverse the Trial Court’s Order and remand to the Trial Court for the entry of an

order dismissing the Amended Complaint.

__________________________________

ELLEN CEISLER, Judge

22

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Atlantic Richfield Company, E.I. du :

Pont de Nemours and Company, NL :

Industries, Inc., PPG Industries, Inc., :

and The Sherwin-Williams Company, :

Appellants :

:

v. : No. 1260 C.D. 2021

:

The County of Lehigh, Pennsylvania :

ORDER

AND NOW, this 5th day of May, 2023, the Order of the Court of Common

Pleas of Lehigh County (Trial Court) in the above-captioned matter, dated August

6, 2021, is hereby REVERSED. This matter is hereby REMANDED to the Trial

Court for the entry of an order dismissing the County of Lehigh, Pennsylvania’s

Amended Complaint.

Jurisdiction relinquished.

__________________________________

ELLEN CEISLER, Judge