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August 27, 1992


The opinion of the court was delivered by: BY THE COURT; JAMES T. GILES


 AUGUST 27, 1992

 Plaintiffs are past and/or present residents of housing units owned and/or managed by the Philadelphia Housing Authority ("PHA"). Plaintiffs have filed a class action suit against PHA, other local, state, and federal government instrumentalities and officials, lead-pigment manufacturers, and those manufacturers' trade association. Plaintiffs advance a plethora of claims against defendants based upon injuries allegedly sustained as a result of exposure to lead-based paint applied to their PHA housing units. *fn1" Plaintiffs seek both compensatory and injunctive relief. All remaining defendants *fn2" except for Pennsylvania Department of Health ("DOH") and Regina Dunkinson ("Dunkinson"), the Director of DOH, have filed motions to dismiss.


 a. Plaintiffs' injuries

 Plaintiffs' Amended Complaint is grounded upon the foundational allegation that "lead is a toxic substance with serious adverse affects [sic] on human beings" and "is particularly hazardous to young children under the age of six . . . ." Amended Complaint at P 50. In support of their allegations plaintiffs cite a summary statement of the Consumer Product Safety Commission, 16 C.F.R. § 1303.5. Amended Complaint at P 55. The Safety Commission notes that "there are three stages to childhood lead poisoning." Id. While "the adverse health effects in the first stage are not clinically present," the second stage generates "such symptoms as loss of appetite, vomiting, apathy, drowsiness, and inability to coordinate voluntary muscle movements" and after-effects which "include seizure disorders as well as various behavioral and functional disorders often included under the heading of minimal brain dysfunction." Id. Finally, "the adverse health effects of the third stage may be permanent and can include blindness, mental retardation, behavior disorders, and death." Id.

 Plaintiffs allege that "the greatest danger of lead poisoning for City children is posed by the ingestion of peeling or flaking lead paint which has been applied to buildings where they reside or spend significant amounts of time." Amended Complaint at P 54. According to plaintiffs, "such poisoning also results from breathing crumbling and oxidizing lead paint that had been applied to buildings where City children reside or spend significant amounts of time." Id. Plaintiffs and other class members *fn3" are suing on behalf of themselves and their children, alleging that they have incurred the above-described injuries because, "from the date of the inception of plaintiffs' and other Class members' residency in [PHA] premises to the present, the minor plaintiffs and other minor Class members have been exposed numerous times to the hazards of lead, and to this day continue to be exposed to lead directly and/or indirectly from the interior and/or exterior surfaces of the premises." Amended Complaint at P 89.

 b. Federal statutory claims

 Eight of the first ten counts of the Amended Complaint (Counts I-II and V-VIII) allege violations of federal statutes by City and Federal Defendants. *fn4" Counts I-II and V-VIII allege violations of 42 U.S.C. § 1983 ("§ 1983"). *fn5" In Count I plaintiffs allege the deprivation of their rights "to property, due process of law and equal protection under the law," Amended Complaint at P 101, because the named defendants "have adopted and are presently pursuing a policy, practice, custom and usage of depriving and continuing to deprive, plaintiffs of the right to decent, safe and sanitary housing by allowing in the past, and continuing to allow, the presence of lead-based paint in the HUD-assisted housing in the City of Philadelphia." Amended Complaint at P 99. Plaintiffs assert Count I against City and Federal Defendants and seek substantial compensatory damages. Amended Complaint at P 102.

 In Count II plaintiffs seek injunctive relief against City and Federal Defendants based upon the same allegations set forth in Count I. Specifically, plaintiffs ask that this court require defendants to inspect PHA units for lead-based paint, abate where necessary, educate PHA residents as to the ill effects of lead-based paint, diagnose residents for potential lead-exposure health problems, and treat residents for these health problems.

 Counts V-VIII also allege violations of § 1983, not because plaintiffs have been deprived of constitutional rights, as in Counts I-II, but because they were and are being deprived of independent federal statutory rights. In Count V and VI plaintiffs allege that City and Federal Defendants have failed to provide safe, sanitary, and affordable housing and have thereby deprived them of their rights under the United States Housing Act of 1937 ("USHA"), 42 U.S.C. §§ 1437 et seq. ("§§ 1437 et seq."). The stated goal of the USHA, as set forth in § 1437, is to "remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of lower income." HUD tries to achieve this goal primarily through the provision of financial support to local public housing authorities, who are then given responsibility to administer public housing programs. Based on alleged violations of §§ 1437 et seq. and its implementing regulations, plaintiffs seek compensatory damages (Count V) and injunctive relief (Count VI). *fn6"

 In Counts VII-VIII plaintiffs press further claims under § 1983 by alleging that City and Federal Defendants have deprived plaintiffs of rights which they hold under the Lead-Based Paint Poisoning Prevention Act ("LPPPA"), 42 U.S.C. §§ 4821-4846. Congress passed the LPPPA in 1971 in an effort to combat the presence of lead-based paint in housing connected with HUD-assisted programs. § 4822. Plaintiffs allege that the past and continuing presence of such paint in their residences violates the provisions of, and their rights under, the LPPPA. Again, plaintiffs sue for compensatory damages (Count VII) and injunctive relief (Count VIII).

 c. Contract claims

 Plaintiffs allege three contract claims against HUD and/or PHA. In Count XII plaintiffs allege that PHA has breached its Annual Contribution Contract ("ACC") with HUD and sues on that contract as a third-party beneficiary. The ACC is the contract in which a local housing authority pledges to undertake certain responsibilities in exchange for HUD funding. Those responsibilities include the provision of "decent, safe, and sanitary dwellings within the financial reach of families who are in the lowest income groups." Amended Complaint at P 159 (citing HUD's Consolidated Annual Contributions Contract Between Local Authority and the United States of America at Part One § 5 (1969)). Plaintiffs claim that PHA has breached the ACC by forcing its residents to endure lead-based paint exposure, and that, as intended beneficiaries of the ACC, they are entitled to sue PHA on that contract.

 In Counts XV and XVI plaintiffs sue HUD and PHA, construing these defendants as their joint landlord. Based upon injuries allegedly stemming from exposure to lead-based paint, plaintiffs sue HUD and PHA for breach of the implied covenant of quiet enjoyment (Count XV) and breach of the implied warranty of habitability (Count XVI).

 d. Other claims against City Defendants

 Two further counts of the Amended Complaint are lodged against City Defendants. In Count XIII plaintiffs claim that PHA has violated Philadelphia Code §§ 603 and 7205 by allowing lead-based paint to be applied and to remain on the surfaces of PHA housing units. In Count XIV plaintiffs allege negligence against both City Defendants for their use of lead-based paint and for their failure to remove it and to take other steps to alleviate its injurious effects.

 e. Claims against Corporate Defendants

 Twelve of the Amended Complaint's twenty-six counts are pled exclusively against Corporate Defendants, including various manufacturers and sellers of lead pigment and/or lead-based paint products, or successors-in-interest to such manufacturers and sellers. *fn8" These defendants are: NL Industries, Inc. ("NLI"), Atlantic Richfield Company ("ARCO"), Sherwin-Williams Company ("Sherwin-Williams"), SCM Corporation ("SCM"), Glidden Company ("Glidden"), Fuller-O'Brien Corporation ("Fuller-O'Brien"), St. Joe Minerals Corporation ("St. Joe"), E.I. Dupont De Nemours & Co. ("Dupont"), Devoe Coatings Company ("Devoe"), Pratt & Lambert, Inc. ("Pratt & Lambert"), XIM Products, Inc. ("XIM"), and The Valspar Corporation ("Valspar"). *fn9" One further Corporate Defendant is the Lead Industries Association, Inc. ("LIA"), an incorporated trade association to which the above-named companies belonged during the relevant time period.

 The foundational allegations against Corporate Defendants are found in PP 56-72 of the Amended Complaint. In a nutshell, plaintiffs allege that from the 1920's to the 1950's Corporate Defendants became increasingly aware of the hazards of lead-based paint but nonetheless waged an aggressive promotional campaign to persuade the public that their products were safe in order to market them as effectively as possible. A large part of this promotional campaign took place through LIA-sponsored research intended to discredit the prevailing view in the scientific community that lead-based paint posed a health hazard. Plaintiffs advance a number of legal theories why, under such facts, Corporate Defendants should be held liable for injuries incurred as residents of PHA housing, where lead-based paint was applied and has remained for decades.

 Counts III-IV allege violations of 42 U.S.C. § 1985 ("§ 1985"). *fn10" Specifically, plaintiffs allege that Corporate Defendants "conspired with the governments and public agencies named as defendants herein to, and did, violate plaintiffs' statutory right to decent, safe, and sanitary housing, thereby depriving plaintiffs of their constitutional rights to due process of law and equal protection under the law . . . ." Amended Complaint at P 108. As compensation for these violations of law, plaintiffs seek damages (Count III) and injunctive relief (Count IV).

 In Counts XVII-XXVI plaintiffs lodge ten claims against Corporate Defendants. Count XIX alleges a contract claim based upon express and implied warranties that the lead-based paint products sold by Corporate Defendants and applied to PHA housing were of good and merchantable quality and fit for their intended purpose. Plaintiffs allege breach of warranty in that the lead-based paint products were not of such marketable quality.

 Five of the remaining nine counts lodged against Corporate Defendants allege tortious conduct giving rise to individual liability: negligent product design (Count XVII), negligent failure to warn (Count XVIII), strict products liability (Count XX), fraud and misrepresentation (Count XXI), and intentional tort (Count XXII). The remaining four counts allege theories of joint liability: civil conspiracy (Count XXIII), concert of action (Count XXIV), enterprise liability (Count XXV), and market share liability (Count XXVI). These last four counts allege theories of liability based upon which Corporate Defendants can by held jointly and severally liable for tortious conduct of the type alleged in Counts XVII-XVIII and XX-XXII.

 The court will now consider the motions to dismiss by examining each count of the Amended Complaint as categorized supra.



Counts I-II: § 1983/deprivation of constitutional rights

 City and Federal Defendants move for dismissal of Counts I and II, arguing that there is no constitutional right "to decent, safe and sanitary housing" as claimed by plaintiffs. Amended Complaint at P 99. Defendants rely upon Lindsey v. Normet, 405 U.S. 56, 31 L. Ed. 2d 36 , 92 S. Ct. 862 (1972), in which the Supreme Court stated:

We do not denigrate the importance of decent, safe and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality . . . . Absent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships are legislative, not judicial functions. . . .

 Id. at 74.

 Plaintiffs counter that they are not asserting a constitutional right to decent housing, but rather are alleging the "taking of a protected liberty interest in bodily security and a possible taking of life-interests protected by the due process clause of the Fourteenth Amendment." Opposition to City Defendants' Motion to Dismiss at 10. Initially, it is noted that deprivation of "the right to decent, safe and sanitary housing" is precisely what plaintiffs allege in Counts I and II, and not the liberty interest upon which they focus in their response to the motion to dismiss. Amended Complaint at PP 99, 103.

 Nevertheless, plaintiffs' effort to re-formulate the nature of the constitutional claim alleged in Counts I and II is unsuccessful. Plaintiffs argue that because they live in PHA housing PHA has a constitutional duty to provide for plaintiffs' safety and well-being. The United States Supreme Court has recently made clear, however, that the affirmative duty of care mandated by the fourteenth amendment's due process clause arises in only the narrowest of contexts, namely, "when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself . . . ." DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 200, 103 L. Ed. 2d 249 , 109 S. Ct. 998 (1989). In DeShaney, the Court held that defendant social services agency was not liable for the injuries inflicted on a child by his abusive father, even though the agency knew of the child's dangerous situation and had taken certain preventive measure short of termination of custody.

 Here, PHA provided plaintiffs with housing, but they were not forced to accept it, as in the case of a prisoner or institutionalized mental patient. DeShaney, 489 U.S. at 199. Thus, plaintiffs were not restrained to the degree required by DeShaney to trigger an affirmative constitutional duty of care. See also Crosby v. Luzerne County Housing Authority, 739 F. Supp. 951 (M.D. Pa. 1990) (housing authority not liable for death of man killed when Section 8 housing caught fire due to Fire Code violations of which defendant was aware). Accordingly, Counts I and II are dismissed as to all defendants.


Counts V-VIII: § 1983/deprivation of rights under the USHA and LPPPA

 In Counts V-VIII plaintiffs sue City and Federal Defendants under § 1983 based upon the alleged deprivation of their rights under the USHA and LPPPA. First, the court considers Federal Defendants' arguments for dismissal. They argue that, unlike state and local governments and officials, they are not subject to suit under § 1983 for violations of the USHA.

 By its own terms, § 1983 provides a cause of action against any person who acts under color of state, and not federal, law to deprive another of his constitutional or federal statutory rights. *fn11" See District of Columbia v. Carter, 409 U.S. 418, 429-30, 34 L. Ed. 2d 613 , 93 S. Ct. 602 (1973) (explaining rationale for Congress' decision not to pass legislation similar to § 1983 and applicable to federal officials). Plaintiffs concede that federal officials cannot normally be held liable under § 1983. They argue, however, that there is one exception, namely, where federal officials are charged with conspiring with state officers and employees to effect a deprivation of an individual's federal rights. In support of this argument plaintiffs cite Martinez v. Winner, 771 F.2d 424, 441 (10th Cir.), mod. on other grounds, 778 F.2d 553 (10th Cir. 1985), vacated on other grounds, 475 U.S. 1138 (1986). As stated in Martinez, 771 F.2d at 441, "federal officials ordinarily are not suable under § 1983, which requires action under color of state law, but they may be liable under § 1983 where, as here, they are charged with conspiring with state officers or employees."

 In response, Federal Defendants point out, and plaintiffs do not contest, that § 1983 creates a cause of action against persons who act under color of state law in depriving citizens of their protected rights. Thus, regardless of the implications of Martinez, plaintiffs cannot sue the United States or HUD under § 1983. Counts V-VIII must be dismissed as to these defendants. *fn12"

 As for defendant Kemp, he is theoretically suable under § 1983, but only if he is charged with conspiring personally with state and/or local officials to deprive plaintiffs of their rights under the USHA or LPPPA. To plead adequately, however, plaintiffs cannot simply make general, conclusory allegations of conspiracy. Rather, they must plead specific acts taken by defendant Kemp together with state and/or local officials toward some unlawful end. Melo v. Hafer, 912 F.2d 628, 638 (3d Cir. 1990). Here, however, no such allegations are advanced in the Amended Complaint, nor even in plaintiffs' response to the Federal Defendants' motion to dismiss. Thus, defendant Kemp is not subject to liability under § 1983, and Counts VI and VIII must be dismissed against him. *fn13"

 Counts V-VIII also name City Defendants. Unlike Federal Defendants, the City and PHA do act under color of state law and under certain circumstances may be reached under § 1983.

 In Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 93 L. Ed. 2d 781 , 107 S. Ct. 766 (1987), the Court ruled that plaintiffs could sue a defendant housing authority under § 1983 to enforce their rights under the Brooke Amendment, a specific provision of the USHA which sets an income-based rent ceiling for public housing units. 42 U.S.C. § 1437a. The Court ruled that the Brooke Amendment satisfied the two-step test for bringing a § 1983 claim: (1) Congress had not foreclosed the filing of a private cause of action, and (2) plaintiffs were seeking to enforce specific, tangible rights. Id. at 423. After concluding that nothing in the USHA precluded plaintiffs from bringing a private action, the Court went on to conclude, in regard to the Wright test's second prong, that:

the benefits that Congress intended to convey on tenants [through the Brooke Amendment] are sufficiently specific and definite to qualify as enforceable rights under [ Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 67 L. Ed. 2d 694 , 101 S. Ct. 1531 (1981)] and § 1983, rights that are not, as respondent suggests, beyond the competence of the judiciary to enforce.

 Wright, 479 U.S. at 432.

 By implication, the Court distinguished the Brooke Amendment from broad policy provisions which do not create specific rights and are not realistically enforceable by the courts. One such provision is 42 U.S.C. § 1437, in which Congress states that the goal of the USHA is to "remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of lower income." A § 1983 claim based on this provision was dismissed in Perry v. Housing Authority of City of Charleston, 664 F.2d 1210 (4th Cir. 1981), for the same reason expressed in Wright, namely, that the plaintiffs therein did not point "to any substantive provisions of the various housing acts which give them a tangible right, privilege or immunity" within the competence of the judiciary to enforce. Perry, 664 F.2d at 1217.

 City Defendants move to dismiss Counts V-VIII on the ground that, as in Perry, plaintiffs have done no more than plead the language of § 1437's general policy provision, thereby running afoul of the Wright standard's second prong. Plaintiffs have invoked language reminiscent of § 1437 in the body of the Amended Complaint, at P 77, and Count V refers only to the "USHA and its implementing regulations concerning decent, safe, and sanitary housing." Amended Complaint at P 115. If these were the only allegations made by plaintiffs, then City Defendants would prevail by reason of the second half of the Wright analysis.

 Plaintiffs have, however, done more. In the body of the Amended Complaint, subsequently incorporated into Counts V-III, they have cited to various regulatory ...

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