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05/21/97 REDLAND SOCCER CLUB v. DEPARTMENT ARMY AND

May 21, 1997

REDLAND SOCCER CLUB, INC., RICHARD V. SPONG, SR., RICHARD V. SPONG, JR., GEOFFREY T. MORROW, MEREDITH S. MORROW, ROBERT E. KANE, HERBERT D. MYERS, DAVID A. KUPP, PATRICIA K. DORWART, LARRY R. SMART, CRYSTAL SMART, BRETNI BRINK, RYAN BRINK, JOSEPH BRTALIK, CAROLE G. BRTALIK, JOSEPH J. BRTALIK, BRIAN BRTALIK, WENDY BRTALIK, THEODORE F. BURD, DIANE M. BURD, CHRISTOPHER T. BURD, DEWITT J. CLINE, JR., JAN M. CLINE, ERIC J. CLINE, JEROMY J. CLINE, RONALD W. DANNER, DANIELLE M. DANNER, CRAIG A. DANNER, STEVEN W. HAAS, IRMA L. RODGERS-HAAS, ANTHONY M. RODGERS, NICOLE C. RODGERS, LAWRENCE E. HAGER, RUTH A. HAGER, SAMUEL HAGER, BENJAMIN HAGER, SHAWN HAGER, EDWARD C. HOCKENBERRY, MARY L. HOCKENBERRY, BRETT R. HOCKENBERRY, ROGER L. HOCKENBERRY, PATRICIA D. HOCKENBERRY, KERIC L. HOCKENBERRY, KODI S. HOCKENBERRY, KLINT D. HOCKENBERRY, DAVID G. HOOPER, PRISCILLA G. HOOPER, DAVID G. HOOPER, II, JOHN H. KNAUB, DEBORAH J. KNAUB, DEREK J. KNAUB, SEAN M. KNAUB, THOMAS R. KRAUSE, ROBERT A. KRAUSE, RICHARD H. LEBO, DONNA LEBO, TRISHA LEBO, KRISTINA LEBO, RALPH E. MCCARTY, GALE P. MCCARTY, JOSHUA H. MCCARTY, LUCAS P. MCCARTY, JAMES P. MEYERS, KIM J. MEYERS, SAMANTHA MEYERS, BRETT MEYERS, THOMAS M. MORROW, GREGORY M. MORROW, JACK E. MUTH, KATHLEEN L. MUTH, ROBERT C. MUTH, JOHN A. NACE, JR., LINDA M. NACE, MICHAEL NACE, ROBERT NACE, KENNETH E. NACE, PAMELA R. NACE, JEREMY M. NACE, KEVIN E. NACE, MELISSA A. NACE, DEAN G. NEWHOUSE, NORMA J. NEWHOUSE, MARTIN NEWHOUSE, ERIC NEWHOUSE, BENJAMIN NEWHOUSE, ALICE O'NEILL, PETER P. O'NEILL, PETER O'NEILL, PATRICK O'NEILL, PAUL O'NEILL, PATRICIA A. PALM, DYLAN T. BUCKWALTER, MICHELLE A. BUCKWALTER, ROBERT J. PONTIUS, CINDY L. PONTIUS, JAY PONTIUS, DEBRA S. POPP, ANDREW J. POPP, THOMAS M. RADOS, WILLIAM P. REHM, JR., KIMBERLY A. REHM, DAVID A. REHM, ANDAR A. REHM, DEON J. REHM, MICHELLE D. REHM, KEN RIBBLE, SUSAN RIBBLE, SCOTT RIBBLE, MARK RIBBLE, NEVIN C. SCHENCK, JR., LISA L. SHENCK, NATHAN S. SHENCK, AARON M. SHENCK, REBECCA SHENCK, BRADLEY SHIRK, JULIA A. SPONG, NATHAN M. SPONG, JOELLE L. SPONG, BARRY L. STONE, MATTHEW D. STONE, COREY J. STROMAN, DONNA L. SZOSZOREK, SHANNON M. SZOSZOREK, SHAYNA M. SZOSZOREK, EUGENE TORBEK, ERIK P. TORBEK, DONALD WILLIAMSON, ELIZABETH M. WILLIAMSON, MICHAEL WILLIAMSON, WILLIAM B. WIRT, PAMELA A. WIRT, CHRISTINE E. WIRT, KEVIN M. WIRT, TIMOTHY B. WIRT, BRYAN C. WIRT, BURLIN COVERT, JOSEPH DORWART, III, JOSEPH DORWART IV, ALICIA DORWART, BRENT DORWART, JACK H. HERSHBERGER, JR., JUNE HERSHBERGER, CARL SMART, JEFFREY SMART, GLEN DILLER, DALE KAHLER, TERRENCE L. KEMBERLING, R. ROBERT MCCOLLUM, WILBER YORTY, APPELLEES
v.
DEPARTMENT OF THE ARMY AND DEPARTMENT OF DEFENSE OF THE UNITED STATES OF AMERICA, APPELLANTS



Appeal from the Order of the Superior Court entered on July 14, 1995, at 0338HBG95, affirming in part, reversing in part, and remanding the Order of the Court of Common Pleas of York County entered on May 5, 1994, at 92 SU 05339-01.

Madame Justice Newman. Mr. Justice Zappala concurs in the result.

The opinion of the court was delivered by: Newman

MADAME JUSTICE NEWMAN

DECIDED: MAY 21, 1997

Appellees, Redland Soccer Club, et al, (collectively the Redland Plaintiffs) brought this private civil action against Appellants, the Department of the Army and the Department of Defense of the United States of America (collectively the Army), pursuant to the Pennsylvania Hazardous Sites Cleanup Act, Act of October 18, 1988, P.L. 756, No. 108, as amended, 35 P.S. § 6020.101, et seq. (HSCA). The Redland Plaintiffs allege that the Army's disposal of hazardous materials at a site formerly part of the New Cumberland Army Depot (Depot) in south-central Pennsylvania caused them harm. They are seeking, among other things, a medical monitoring trust fund and attorney fees. The Court of Common Pleas of York County granted summary judgment in favor of the Army, and the Superior Court affirmed in part, reversed in part, and remanded the case for further proceedings. For the reasons that follow, we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

The Depot encompasses more than 800 acres of land located approximately five miles south of Harrisburg in Fairview Township, York County. From 1917 until sometime in the 1950's, the Army used four to five acres of a fourteen-acre tract in the southeastern corner of the Depot as a landfill to dispose of various kinds of waste. After closing the landfill in the 1950's, the Army covered it with a layer of soil and coal ashes.

In 1976, the Army transferred ownership of the fourteen-acre tract to Fairview Township. Fairview Township employees converted the tract into Marsh Run Park (Park) by grading the site and adding a layer of topsoil. Soccer fields were placed in the Park, and Redland Soccer Club and its members used the fields for soccer practices and games from 1982 until 1987.

The Army began environmental testing in the Park in April of 1987, as part of the Defense Environmental Restoration Program. After preliminary testing indicated that hazardous substances were present, the Army closed the Park in August of 1987. Further testing revealed that the Park was contaminated with numerous toxic materials, including volatile organic compounds, semi-volatile organic compounds, and metals. Subsequently, the Army began a program to remediate the contamination.

Federal Action

On June 7, 1990, five of the Redland Plaintiffs filed a class action complaint in the United States District Court for the Middle District of Pennsylvania (federal action). After the court denied class certification, the five plaintiffs filed an amended complaint joining the additional Redland Plaintiffs. The Redland Plaintiffs consist of three groups: (1) children and their family members who participated in soccer activities in the Park; (2) Fairview Township employees who prepared the Park for the Township's use; and (3) residents living near the Park and relatives who regularly visited them. *fn1 They sought relief under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., HSCA, and through a common law claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. They requested, among other things, the establishment of a medical monitoring trust fund to pay for periodic physical examinations, and attorney fees.

In a series of opinions, the District Court dismissed all of the Redland Plaintiffs' medical monitoring claims. First, in a Memorandum Opinion, the District Court held that medical monitoring costs were not recoverable under CERCLA and granted the Army's motion for judgment on the pleadings for that claim. Redland Soccer Club, Inc. v. Department of the Army, No. 1:CV-90-1072 (M.D.Pa. Feb. 12, 1992). In a second Opinion, the District Court dismissed the HSCA medical monitoring claim without prejudice, holding that CERCLA, 42 U.S.C. § 9613(h), prohibited it from exercising jurisdiction of that claim while a cleanup operation was ongoing. Redland Soccer Club, Inc. v. Department of the Army, 801 F. Supp. 1432 (M.D.Pa. 1992). In a third Opinion, the District Court addressed the FTCA common law claim for medical monitoring. Redland Soccer Club, Inc. v. Department of the Army, 835 F. Supp. 803 (M.D.Pa. 1993). The court concluded that the Pennsylvania Supreme Court would recognize a common law cause of action for medical monitoring. However, the court held that the Redland Plaintiffs failed to present sufficient evidence of their exposure to the hazardous substances in the Park and granted the Army's motion for summary judgment on the FTCA common law claim for medical monitoring.

On May 15, 1995, the United States Court of Appeals for the Third Circuit affirmed the District Court's dismissal of the claims for medical monitoring, but on different grounds than the District Court. Redland Soccer Club, Inc. v. Department of the Army, 55 F.3d 827 (3d Cir. 1995), cert. denied, 133 L. Ed. 2d 725, 116 S. Ct. 772 (1996). The Third Circuit held that the Redland Plaintiffs had presented sufficient evidence of exposure to hazardous substances in the Park. However, the court also held that the Redland Plaintiffs were required to demonstrate a need for special medical monitoring, i.e., medical monitoring different from the regular medical monitoring recommended for the general population absent such exposure. The court then decided that the Redland Plaintiffs had not presented sufficient evidence of a need for special medical monitoring to withstand the Army's motion for summary judgment.

State Action

After the District Court dismissed the HSCA claim for medical monitoring, the Redland Plaintiffs filed the present action in the Court of Common Pleas of York County (trial court) on November 27, 1992. They alleged a cause of action under HSCA, seeking, among other things, a medical monitoring trust fund and attorney fees. On April 21, 1994, the trial court granted summary judgment in favor of the Army, holding that although HSCA permits a claim for medical monitoring, the Redland Plaintiffs failed to meet their prima facie burden under HSCA because they did not present sufficient evidence of exposure to the hazardous materials in the Park. The trial court also held that HSCA does not authorize attorney fees in a citizen suit.

On July 14, 1995, the Superior Court reversed the trial court and remanded the case for further proceedings. The Superior Court held that the Redland Plaintiffs had produced sufficient evidence of exposure to the hazardous materials in the Park to support a claim under HSCA. The Superior Court also held, contrary to the Third Circuit's Opinion, that a plaintiff seeking medical monitoring under HSCA is not required to show a need for special medical monitoring. Additionally, the court found that HSCA provides for attorney fees in a citizen suit.

We granted the Army's Petition for Allowance of Appeal, *fn2 limited to the issues of (1) whether private plaintiffs must show that they require special medical monitoring to recover medical monitoring damages as response costs under HSCA, and (2) whether HSCA authorizes attorney fees for medical monitoring claims. *fn3

Discussion

When deciding a motion for summary judgment, a court must view the record in the light most favorable to the nonmoving party and must resolve all doubts concerning the existence of a genuine issue of material fact against the moving party. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992) (citing Pa.R.C.P. No. 1035). *fn4 Summary judgment is appropriate only in those cases where the right is clear and free from doubt. Id.

In 1988, the General Assembly enacted HSCA based, in part, on a finding that hazardous substances released into the environment pose a substantial threat to the health and welfare of the residents of the Commonwealth. 35 P.S. § 6020.102(2). The General Assembly decided that traditional legal remedies were not adequate to prevent the release of hazardous substances into the environment. 35 P.S. § 6020.102(5). It found that "extraordinary enforcement remedies and procedures are necessary and appropriate to encourage responsible persons to clean up hazardous sites and to deter persons in possession of hazardous substances from careless or haphazard management." 35 P.S. § 6020.102(9). Therefore, it created HSCA, which is an "independent site cleanup program" designed to "promptly and comprehensively address the problem of hazardous substance releases in this Commonwealth, whether or not these sites qualify for cleanup under ." 35 P.S. 6020.102(8).

HSCA makes it unlawful to "cause or allow a release of a hazardous substance." *fn5 35 P.S. § 6020.1108(1). Private citizens injured or threatened with injury from the release of a hazardous substance may bring suit under the citizen suit provision of HSCA, which states:

§ 6020.1115. Citizen suits

(a) General rule.-A person who has experienced or is threatened with personal injury or property damage as a result of a release of a hazardous substance may file a civil action against any person to prevent or abate a violation of this act or of any order, regulation, standard or approval issued under this act.

(b) Jurisdiction.-The courts of common pleas shall have jurisdiction over any actions authorized under this section. . . . The court may grant any equitable relief; may impose a civil penalty under section 1104; and may award litigation costs, including reasonable attorney and witness fees, to the prevailing or ...


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