the motion as to Fried. We grant the motion, however, as to the other Plaintiffs who have not stated a claim for medical monitoring or otherwise alleged an injury different from that suffered by the general public.
Intech also seeks to dismiss Count VIII, a claim under § 876 of the Restatement of Torts alleging concerted activity. Intech argues that this count should be dismissed because there is no tort-feasor left in the case with whom it allegedly acted in concert. Plaintiffs argue in response that simply because the other tort-feasor may be immune from a claim does not change the concerted nature of the tort under § 880 of the Restatement. We agree and so do not dismiss on that ground.
Intech's second argument to dismiss Count VIII is that Plaintiff's claim does not allege the concerted activity with sufficient specificity. The Third Circuit has held that a complaint that omits details and simply makes a "general allegation of conspiracy without a statement of facts is an allegation of a legal conclusion and insufficient of itself to constitute a cause of action." Black & Yates, Inc. v. Mahogany Ass'n, Inc., 129 F.2d 227, 231 (3d Cir.), cert. denied, 317 U.S. 672, 87 L. Ed. 539, 63 S. Ct. 76 (1941), cited in Mowrer v. Armour Pharmaceutical Co., No. 92-6905, 1993 Westlaw 543541 at *3 (E.D. Pa. Dec. 30, 1993). A plaintiff must plead facts such as the "general composition of the conspiracy, some or all of its broad objectives, and defendant's general role in that conspiracy." Alfaro v. E.F. Hutton & Co., 606 F. Supp. 1100, 1117-18 (E.D. Pa. 1985). Plaintiffs contend that Intech waived this specificity argument by filing an Answer to the original Complaint.
Plaintiffs' Second Amended Complaint alleges only that the tortious acts of Intech were in concert with other defendants, that Intech gave assistance and encouragement to the other defendants and that this constituted a breach of duty to the Plaintiff class. This does not state a claim upon which relief can be granted for concert of action under § 876 of the Restatement of Torts. We also agree with Intech that it has not waived its objections to this count because its objections are based on stating a claim. For that reason, Count VIII is dismissed.
Finally, Intech argues that any state law claims that remain should be dismissed under 28 U.S.C. § 1367(c). It asserts that these claims raise novel and complex issues of state law and that they predominate over the federal claims. We will not dismiss these claims. Especially after the Supreme Court's guidance in Simmons, we find that the issues are not novel nor unduly complex and that the federal Clean Air Act claims are not merely a "tail" wagging a state "dog." Borough of West Mifflin v. Lancaster, 45 F.3d 780, 789 (3d Cir. 1995).
An appropriate Order follows.
AND NOW, this 2nd day of May, 1996, upon consideration of the Motion of Defendant Intech Corporation, Inc. to Dismiss Second Amended Complaint and for Partial Summary Judgment and responses thereto, the Motion is hereby GRANTED in PART and DENIED in PART. The Motion is hereby GRANTED in that:
Count II is hereby DISMISSED with respect to claims by Plaintiff Sam Wurst. FURTHER, Summary Judgment is hereby Granted in Intech's favor on Plaintiffs' claims of improper asbestos removal and failure to survey the mezzanine level of 401 North Broad Street.
Counts III and VIII are hereby DISMISSED.
Counts VI and VII are hereby DISMISSED with respect to Plaintiffs other than Fried as discussed in the attached Memorandum.
The Motion is hereby DENIED in all other respects.
BY THE COURT:
J. CURTIS JOYNER, J.
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