dismiss Count One on several grounds. We will address each alleged ground for dismissal in turn.
A. Injury to Business or Property
In order to have standing under RICO, a plaintiff must have been "injured in his business or property." 18 U.S.C. § 1964(c); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985). The Supreme Court has determined that Congress intended the words "business or property" in the RICO statute to be words of exclusion. Reiter v. Sonotone Corp., 442 U.S. 330, 339, 60 L. Ed. 2d 931, 99 S. Ct. 2326 (1979). For that reason, injury to the person does not grant RICO standing. Id.
Defendants argue that Plaintiffs fail to state a RICO cause of action because they do not allege an injury to their business or property. The Second Amended Complaint alleges that Plaintiffs' pay was kept at artificially low levels because they did not receive the hazard pay they would have demanded had they known of the presence of asbestos in their working environment. Second, the complaint alleges that Plaintiffs will incur medical monitoring expenses in the future because of their exposure to asbestos. 2d Am. Complaint P 36.
Defendants cite numerous cases holding that exposure to toxic chemicals is a personal injury that does not grant standing under RICO. Genty v. RTC, 937 F.2d 899, 918-19 (3d Cir. 1991); Doe v. Roe, 958 F.2d 763, 767 (7th Cir. 1992); Berg v. First State Ins. Co., 915 F.2d 460, 464 (9th Cir. 1990); Rylewicz v. Beaton Servs., 888 F.2d 1175, 1180 (7th Cir. 1989); Grogan v. Platt, 835 F.2d 844, 846 (11th Cir.), cert. denied, 488 U.S. 981, 102 L. Ed. 2d 562, 109 S. Ct. 531 (1988); Drake v. B.F. Goodrich Co., 782 F.2d 638 (6th Cir. 1986). The Third Circuit has held that claims for medical monitoring are also claims for personal injury. Genty, 937 F.2d at 918.
Plaintiffs argue that they do not plead personal injury, but economic injury, in that they seek lost wages and reimbursement for medical monitoring. They cite many cases holding that a claim for lost wages is a claim for injury to business. Hunt v. Weatherbee, 626 F. Supp. 1097, 1100-01 (D. Mass. 1986); Rodonich v. House Wreckers Union, 627 F. Supp. 176, 180 (S.D.N.Y. 1985); Schenk v. Southeast Banking Corp., 725 F. Supp. 1231 (S.D. Fla. 1989). See also Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1170 (3d Cir. 1989) ("loss of earnings, benefits, and reputation constitute self-evident injury as in any standard wrongful discharge action"); Callan v. State Chem. Mfg. Co., 584 F. Supp. 619 (E.D. Pa. 1984) (injury to business when employees forced to pay bribes to customers out of employees' earnings). In each of these cases, the employee seeking lost wages had been discharged from their job as part of the RICO violations. None of the cases mention medical monitoring or involve claims for hazard pay.
We find that Plaintiffs' claim for medical monitoring is a claim for personal injury and not a claim of injury to business or property. Genty, 937 F.2d at 918-19. Although it is a closer question, we find that Plaintiffs' claim for hazard pay is also a claim for injury to the person. The Second Amended Complaint alleges that Plaintiffs would have sought "hazard pay and other wage compensation premiums which would have been required by the Plaintiff-class in order to induce them to go to work in an environment contaminated by dangerous asbestos fibers." 2d Am. Complaint P 21g.
Hazard pay, therefore, appears to be payment made as compensation for the fear of catching a disease. Fear is a type of emotional distress, and is therefore not covered by RICO. Courts have recognized that "recovery for personal injury has pecuniary aspects." Grogan v. Platt, 835 F.2d 844, 847 (11th Cir. 1988). But, these courts stress, it is important to distinguish between the pecuniary harm that arises from personal injuries and the pecuniary harm that arises from injury to business or property. Id.
We find that Plaintiffs' claim for hazard pay is somewhat analogous to the claim for expenses the plaintiff incurred in Roe, 958 F.2d at 767. There, plaintiff alleged that defendant, the attorney who represented her in her divorce, defrauded her into paying for his services with sexual relations. Id. at 764. When plaintiff sued the lawyer, he retaliated in part by threatening her physically, which prompted her to buy a security system and caused her to lose work. The Court held that plaintiff's "loss of earnings, her purchase of a security system and her employment of a new attorney are plainly derivatives of her emotional distress--and therefore reflect personal injuries which are not compensable under RICO." Id. at 770.
In another analogous case, the Ninth Circuit held that loss of insurance coverage was not an injury to business or property. Berg, 915 F.2d at 464. The Court held that an insurance contract's value is the peace of mind it gives the insured. Therefore, the Court held, the complaint pleaded a claim for emotional distress, not injury to property, and dismissed the RICO claim. Id.
We find that Plaintiffs' claim for hazard pay is at base a claim for emotional distress.
Because injury to the person does not provide standing under RICO, we must dismiss Count One.
B. Fed. R. Civ. P. 9(b)
In addition to the above argument, Defendants assert that Count One of the Second Amended Complaint does not comport with Federal Rule of Civil Procedure 9(b). This Rule requires fraud claims to be pleaded with particularity. In the Third Circuit, a plaintiff must plead "the 'circumstances' of the alleged fraud in order to place the defendants on notice of the precise misconduct with which they are charged." Seville Indus. Machinery v. Southmost Machinery, 742 F.2d 786, 791 (3d Cir. 1984), cert. denied, 469 U.S. 1211, 84 L. Ed. 2d 327, 105 S. Ct. 1179 (1985). This does not require pleading the date, place and time of each fraudulent occurrence, however. Id. For example, in Seville, the Third Circuit found that Rule 9(b) was met when the complaint incorporated a list "identifying with great specificity" the products plaintiff had allegedly bought due to defendants' fraud, and the list was, in turn, divided into five sections which identified the exact products that were the subject of each fraudulent transaction. Id. In contrast, when a plaintiff simply asserts that misrepresentations were made, Rule 9(b) is not met. Brossman Sales, Inc. v. Broderick, 808 F. Supp. 1209, 1213 (E.D. Pa. 1992). In Brossman, our Court dismissed a RICO claim where the "plaintiff failed to include anywhere in its complaint even a vague description of what misrepresentations were made and to whom." Id.
Here, Plaintiffs plead that:
the pattern of racketeering activity consisted of numerous acts of mail fraud (violating 18 U.S.C. § 1341) and wire fraud (violating 18 U.S.C. § 1343) in furtherance of their scheme to defraud the Plaintiff class, the governmental authorities, the owner of 401 North Broad Street, visitors to the building, and persons removing asbestos containing materials from the site and disposing of them.
2d Am. Complaint P 34.
The Second Amended Complaint further pleads that the illegal uses of the mails and wires included, but were not limited to: (1) transmission of communications and payments to persons participating in the illegal asbestos removal; (2) payments to individual defendants of their EIC bonuses; (3) transmission to governmental authorities of communications, correspondence, permits, and payments for permits for building, construction and related activities which involved the illegal asbestos removal without disclosing that involvement, and (4) failing to make reports required under the Clean Air Act and CERCLA. 2d Am. Complaint P 35.
We find that these allegations fail to plead the alleged fraud with sufficient particularity. Although the Second Amended Complaint provides enough information to meet the requirements of Rule 8(a), more is needed to meet Rule 9(b). Here, there are no allegations of the nature or even the subject of the misrepresentations to the various plaintiffs, defendants and governmental entities involved. For this reason, we find that Plaintiffs' Second Amended Complaint fails to meet the particularity requirement of Rule 9(b).
C. Pattern of Racketeering
Defendants further allege that Plaintiffs have failed to plead a pattern of racketeering. They argue that none of Plaintiffs' allegations show that the predicates are related or amount to or pose a threat of continued criminal activity. H.J., Inc. v. Northwestern Bell Tel., 492 U.S. 229, 239, 106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989). We disagree with this interpretation of Plaintiffs' Second Amended Complaint. The Second Amended Complaint sufficiently ties the predicates together by alleging the motive behind the alleged fraud, namely, to increase profits to Defendants by not expending monies on a proper asbestos removal. 2d Am. Complaint PP 21, 26-28, 34. For this reason, we find that Plaintiffs have sufficiently pleaded a pattern of racketeering.
Because we found above that Plaintiffs do not have standing under RICO and that they had not pleaded fraud with specificity, we grant Defendants' Motion to Dismiss Count One of Plaintiffs' Second Amended Complaint.
II. Count Two
Count Two alleges that SDS and SRS violated the Clear Air Act. Defendants move to dismiss this claim on the grounds that (1) Plaintiffs failed to provide the required notice under the Clean Air Act, (2) there is no basis for a claim against SDS
and (3) Plaintiffs do not have standing to seek relief because there are no ongoing and continuing violations of the Clean Air Act. We will address each argument in turn.
1. Notice Requirements
The Clean Air Act
provides that any person may bring a suit against any other person alleged to have violated (if the violation was repeated) or alleged to be in violation of an emission standard or limitation. 42 U.S.C. § 7604(a)(1). The Act requires that this so-called "citizen plaintiff" give sixty days notice to the alleged violator, the State and the EPA Administrator. 42 U.S.C. § 7604(b). Congress delegated the contents of the sixty-day notice to the EPA. The notice must:
permit the recipient to identify  the specific standard, limitation, or order which has allegedly been violated,  the activity alleged to be in violation,  the person or persons responsible for the alleged violation,  the location of the alleged violation,  the date or dates of such violation, and  the full name and address of the person giving the notice.
40 C.F.R. § 54.3 (1994); Public Int. Research Grp. v. Hercules, Inc., 50 F.3d 1239, 1249 (3d Cir. 1995). A plaintiff must comply with the notice provisions before there is subject matter jurisdiction over the action. Hallstrom v. Tillamook County, 493 U.S. 20, 31, 107 L. Ed. 2d 237, 110 S. Ct. 304 (1989). The Supreme Court has held that these provisions are mandatory and cannot be waived. Id. The Court takes these requirements so seriously that in Hallstrom it dismissed an action for failure to comply with the sixty day requirement even though the action had been litigated for years and there was a decision on the merits. Id. at 32.
Defendants allege that Fried's notice is insufficient in its content and in its timing.
The notice Fried sent states, in pertinent part:
Sungard Recovery Services, Sungard Data Systems, Intech Construction, Inc. and Veland, Junker, McCauley violated The Clean Air Act by repeatedly conducting renovations at 401 N. Broad Street, Philadelphia, PA 19106 in violation of the National Emissions Standard for Asbestos. These violations occurred repeatedly between 1990 and 1994 and are continuing.