of the streets is undetermined, although the Complaint implies that the number may indeed be large. ("The number of the members of each class is so numerous that joinder of all members is impracticable." ([para.] 42)). Furthermore, while plaintiffs have alleged a lack of access, they have not alleged a "substantial" lack of access, a requirement which I think is sound. A mere inconvenience could constitute a lack of access, but should not suffice to state a claim for public nuisance. The Complaint does not make clear exactly how long streets were closed, and how the closure specifically affected each plaintiff. I will grant those plaintiffs who may state a public nuisance claim leave to amend the Complaint in order to provide facts to establish that any lack of access was substantial.
As a matter of law I find that the only parties who may have suffered peculiar harm as a result of the closure of the streets due to the fire were those businesses who can show with reasonable certainty that they lost profits due to the closure of the streets and who suffered a substantial lack of access. The plaintiffs who may continue to assert this cause of action are Ejay, Regent Shoes, LegXpress, Square Corp., Vinciguerra, Corcoran, Sunshine, Royal Bank, Chris' Cafe and the Happy Rooster. These plaintiffs may amend the public nuisance count within twenty days to conform to this opinion. All other plaintiffs were not uniquely affected by the closure of the streets, and inclusion of these parties would increase the number of plaintiffs so as to generalize the harm. Therefore, all other plaintiffs' claims for public nuisance are dismissed. It will be determined at a later stage of the proceeding whether the number of plaintiffs is too large to permit recovery, and which plaintiffs suffered severe economic harm and a substantial lack of access.
Plaintiffs argue that the economic loss doctrine is not applicable to trespass. Defendants argue that trespass is an intentional tort and since the Complaint alleges only negligent conduct, the trespass count must be dismissed. Plaintiffs counter that they do allege intentional conduct, and, alternatively, that trespass may be established by a negligent or reckless invasion of land. The trespass claim here is that, as a result of defendants' conduct, a "substantial physical invasion" resulted and "substantial smoke, airborne toxins, water and falling granite" or other debris and barriers were placed on the property of certain plaintiffs.
Under Pennsylvania law, trespass to land is an intentional tort, and there must be an "intention to enter upon the particular piece of land in question." Valley Forge Gardens, Inc. v. James D. Morrissey, Inc., 385 Pa. 477, 483, 123 A.2d 888, 891 (1956), quoting Restatement § 163, comment b. The key inquiry here is the definition of intent. Defendants argue that in order to state a claim for trespass, a defendant must intend the intrusion, although the defendant need not intend the harmful consequences. W. Keeton, et al., Prosser and Keeton On The Law of Torts, § 13 at 73 (5th ed. 1984). Plaintiffs assert that it is sufficient if defendants knew their conduct was substantially certain to result in such an invasion. See Buckley Motors, Inc. v. Amp, Inc., 23 Pa. D. & C. 2d 324, 328 (1960) (citing to Restatement § 163, comment c). Furthermore, plaintiffs assert that they can recover under either of two other Restatement sections: § 165, Liability for Intrusions Resulting From Reckless or Negligent Conduct and Abnormally Dangerous Activities, whereby one who recklessly or negligently causes a thing to enter onto the land of another is subject to liability if the thing causes harm to the land or the possessor; and § 931, Detention or Preventing Use of Land or Chattels, which states that "if one is entitled to a judgement for the detention of, or for preventing the use of land or chattels, the damages include compensation for . . . the value of the use during the period of detention or prevention or the value of the use or the amount paid for a substitute. . . ."
Furthermore, plaintiffs argue that even if intentional conduct is required, they have adequately alleged intentional conduct. They claim that defendants acted "intentionally" in failing to properly maintain and operate the Building's fire suppression and protection systems. Plaintiffs also argue that if intent means that defendants know the invasion is "substantially certain" to result, that defendants "knew or should have known that such failure would result in grave and extensive harm to plaintiffs' property" (essentially, that defendants knew their conduct was substantially certain to produce such a result). I do not believe that the underlying facts of the Complaint support plaintiffs' conclusory statements regarding intent. The Complaint suggests that defendants chose to assume the risks of fire in order to save money by not properly maintaining and operating the Building's fire suppression and protection systems. This is a far cry from being "substantially certain" that a devastating fire would occur.
I also find that reckless and/or negligent conduct is not sufficient to state a cause of action for trespass. The only Pennsylvania decision incorporating either of the two Restatement sections upon which plaintiffs rely is Glass v. Dean Coal Co., 7 Pa. D. & C. 2d 657, 659 (1956) (citing to Restatement § 931). See also Apartment Owners and Managers Committee v. Brown, 252 Pa. Super. 539, 382 A.2d 473, 480 (dissenting opinion) (citing to Restatement § 931 for the measure of damages for tortious detention of a chattel). Furthermore, § 931 is merely a measure of damages; the underlying tort is "tortious conduct [which] has prevented the owner from using the land, as when the defendant by acts on his own land has made the use of the plaintiff's land dangerous or unhealthful." Restatement § 931, comment a. There is not a sufficient indication that Pennsylvania courts, if confronted with the question today, would allow plaintiffs to state a cause of action based on either of these sections.
Furthermore, defendants argue that even if a trespass claim could be based upon negligence, pure economic losses would still not be available in this case. A trespasser is liable not only for personal injuries resulting directly and proximately from the trespass but also for those which are indirect and consequential. Kopka v. Bell Tel. Co., 371 Pa. 444, 451, 91 A.2d 232 (1952); See also Northeast Women's Center, Inc. v. McMonagle, 689 F. Supp. 465, 477 (E.D. Pa. 1988), aff'd, 868 F.2d 1342 (3d Cir. 1989). Applying this measure of damages, plaintiffs in this case are not entitled to recover for economic losses unless there is a causal nexus between the trespass and the economic loss. That there is no such connection alleged is discussed infra in section 7 of this opinion on the relationship between physical damage and economic harm. If this cause of action were otherwise viable, plaintiffs would be given an opportunity to amend the Complaint and meet this requirement. Due to the ultimate disposition of this count, however, the measure of damages is immaterial.
Accordingly, plaintiffs' Count VI for trespass is dismissed with prejudice.
6. Negligence Claims Without Allegations of Physical Harm
Plaintiffs argue that they state a negligence claim for the recovery of their economic losses even in the absence of physical harm. Their efforts to exclude the case at bar from the economic loss doctrine are based on two arguments. First, plaintiffs attempt to distinguish the principal Pennsylvania cases regarding the economic loss doctrine, namely Aikens v. Baltimore and Ohio R. Co. and Moore v. Pavex, by asserting that those cases did not involve economic losses suffered as a direct and immediate result of a governmental evacuation, or where there is a threat of physical harm. Second, plaintiffs argue that the two Supreme Court cases (Robins Dry Dock and East River Steamship) are inapplicable to the instant case because those decisions rested upon contractual privity.
The Moore case, discussed above in the section of this opinion on the economic loss doctrine generally, involved the rupture of a water main by a construction worker using a jackhammer. The Superior Court rejected plaintiffs' claims for economic losses, citing the lack of physical harm. However, the opinion contains language which could be read to imply that if economic losses were foreseeable, such as those arising from a nuclear fallout, or if they were suffered because of the threat of physical harm, they would be recoverable despite the absence of physical damage:
The injury [from a nuclear fallout], while not always immediately ascertainable, is direct and predictable, and for persons not to move immediately from a fallout zone to avoid possible incredible consequences, is folly and unsupportable [sic]. Any economic loss resulting from such a scenario is directly attributable to the meltdown . . . This is no mere rupture of a waterpipe. It is clearly distinguishable.
Moore, 514 A.2d at 140.
Plaintiffs interpret this language as permitting recovery for economic losses where the losses suffered are direct and predictable, and where the loss was accompanied by serious risks of health and safety, such as here. Plaintiffs' Memorandum at 53 - 54. Plaintiffs also point out that neither Moore nor Aikens involved such a situation, so the cases are not inconsistent with their argument and are distinguishable from the instant case.
The Superior Court retreated from its position in Moore, or at least explained it, in Glass Kitchens, 374 Pa. Super. 203, 542 A.2d 567. While this case did not involve a "meltdown," it did involve a nuclear accident. The court did "not decide whether a different rule of tort law will ever be applied in the context of a nuclear incident," but it did apply "traditional rules of [our] tort law" to the parties in the case. Id. at 571 n. 7. More importantly, it explained the above language in Moore not as suggesting the possibility of recovery for economic loss without physical harm but instead that
This language from Moore is consistent with the rule of law we announced in Aikens. These statements recognize that persons or property who have come in contact with radiation or fallout will suffer a direct and predictable actual injury, despite the fact that this injury may not be visible to the naked eye.
Id. at 571 (emphasis added).
Based on this analysis, I find that Pennsylvania has not recognized an exception to the economic loss doctrine for situations like the fire at One Meridian Plaza. The narrow exception which Moore suggested has apparently been rejected in Glass Kitchens. Plaintiffs' suggested exception, that economic losses be recoverable where accompanied by the mere threat of physical harm, goes beyond the Moore dicta. This exception would also be at odds with the underlying reasoning behind the economic loss doctrine; it would be anomalous if a rule of law which is used to limit liability were discarded in calamitous situations where liability would be greatest. Furthermore, the bright line which determines who may pursue a negligence action would become less bright when attempting to determine exactly what constitutes a threat of harm.
Plaintiffs' attempts to distinguish the Supreme Court cases, Robins Dry Dock and East River Steamship, are equally unavailing. The only relevance of these cases to the case at bar is the philosophical underpinnings of the economic loss doctrine. The holding in this case rests on Pennsylvania law only. Plaintiffs contend that the two Supreme Court cases were decided based on principles of contractual privity, and, consequently, are readily distinguishable from the present one. While the Court does, in both cases, discuss contractual privity, the economic loss doctrine as it exists today is based on broader grounds than the availability of insurance or the integrity of contract principles. It is based on the desire for and necessity of a bright line rule to limit liability in situations where many parties have been harmed and liability could be almost limitless. The rule of law as it exists in Pennsylvania is not based upon any considerations of contractual privity.
Consequently, I find that for those plaintiffs who brought a claim for negligence but did not allege property damage, namely Triumphe and Sunshine, claims for economic losses based on negligence must be dismissed.
7. Relationship Between Physical Damage and Economic Harm
Perhaps defendants' most important argument is that, in order to recover economic losses, the economic loss must flow directly from the physical harm to plaintiffs' property. Since no plaintiff alleged this causal connection, if defendants' statement of the law is correct, all plaintiffs' claims for economic losses must be dismissed.
Plaintiffs argue that no causal connection is necessary. First, they offer official comment (b) to Restatement § 766C:
b. Physical harm to the other. The rule stated in this Section applies when the plaintiff suffers only pecuniary loss, such as the loss of the financial benefits of a contract or of prospective trade or financial loss through being put to additional expense. If there is physical harm to the person or land or chattels of the plaintiff, the rule stated in this Section does not apply and there may be recovery for negligence that results in physical harm because of the nonperformance of a contract with the plaintiff. (Cf. §§ 435B, 499). This recovery is of course subject to the usual rules governing liability for negligence. When recovery is allowed, the loss of expected profits or other pecuniary loss may, in an appropriate case, be recovered as "parasitic" compensatory damages.
Plaintiffs attach significance to this language, which does not clearly require a causal connection between the physical harm and the economic loss. Furthermore, plaintiffs claim that requiring a correlation between the harm and the loss would contravene an underlying purpose of the economic loss doctrine, which is to establish a bright line rule separating those who may recover for economic loss in a given situation from those who may not. Plaintiffs argue that if the court must make this two pronged analysis (whether there was physical harm at all, and whether the physical harm is the cause of the economic loss), the pragmatism of the rule would be lost.
Defendants, on the other hand, argue that plaintiffs' position is inconsistent with fundamental principles of causation. They argue that if liability is imposed on a party for physical harm, that party is responsible only for those losses directly and proximately resulting from the harm.
This, however, begs the question of whether plaintiffs' economic harm was proximately caused by defendants' negligence. The principle of proximate causation has been supplanted by the economic loss doctrine in situations where a defendant's negligence causes purely economic loss. Ordinarily, liability is determined by foreseeability. Nonetheless, the economic loss doctrine precludes recovery for economic loss where there has been no physical harm suffered, even where the economic loss was foreseeable. See, e.g., Dundee Cement Co. v. Chemical Laboratories, Inc., 712 F.2d 1166, 1168 (7th Cir. 1983), where a truck owned by the defendant overturned and spilled a flammable liquid onto a highway. As a result of the spill, the highway was closed for some time and access to plaintiff cement company was completely blocked. The court stated that "the causal relation between the [negligence] and the loss of business is direct. . . One could easily foresee that an accident that forced a road to close and that therefore blocked all access to a company could seriously inconvenience that company. . ." Nonetheless, the plaintiff was deemed "too remote . . . because it was not physically harmed." Id. In Margolis v. Jackson, 375 Pa. Super. 182, 185, 543 A.2d 1238, 1240 (1988) the court stated that economic loss "is considered beyond the scope of recovery even if a direct result of the negligent act." It is clear that ordinary causation principles do not apply in this case.
More persuasive, however, is defendants' reasoning describing plaintiffs' interpretation of the physical harm requirement as a "trigger" mechanism. According to plaintiffs, pleading property damage of any kind is sufficient to open the door to recovery for economic loss. To illustrate the disparate effects of the operation of such a rule, defendants offer the following hypothetical:
Assume two of the 2,500 employees in One Meridian Plaza who are pleaded to have lost their jobs because of the fire had identical jobs with identical claims for lost wages and benefits; employee A left no personal items at the office during the weekend of the fire and employee B left her coat in a closet. Under Aikens, Employee A cannot recover his lost wages. It would be absurd to hold that because employee B's coat was damaged she is entitled to now recover the lost wages barred to employee A.