The opinion of the court was delivered by: CONABOY
Presently before the Court are the motions of the defendant, Gould Electronic, Inc. (hereinafter "Gould"), to dismiss the class action allegations and to dismiss other substantive counts of the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc. 5), the plaintiffs' motion and memorandum for class action determination (Doc. 15), and Gould's motion to declare moot, or, in the alternative, motion to strike, plaintiff's motion and memorandum for class determination, or, in the alternative, motion for stay (Doc. 18). For the reasons as set forth infra, we shall grant in part Gould's motion to dismiss the class action allegations and to dismiss other substantive counts of the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc. 5) as it pertains to the plaintiffs' class action allegations and counts II and III of the plaintiffs' complaint, and deny said motion in part as it pertains to count VI and paragraph 62(g) of the plaintiffs' complaint. We shall also grant Gould's motion to declare moot, or, in the alternative, motion to strike, plaintiff's motion and memorandum for class determination, or, in the alternative, motion for stay, (Doc. 18), and shall thereby deem as moot the plaintiffs' motion and memorandum for class action determination. (Doc. 15).
FACTUAL AND PROCEDURAL HISTORY
As a result of the business activities at the site, the site became contaminated with lead and other hazardous materials. The leakage, seepage, runoff, emission and/or erosion of these materials had contaminated the surrounding air and groundwater, as well as the soil of the neighboring residences. In accordance with state and federal environmental departments and their policies, the site and surrounding areas has undergone and is still undergoing clean up measures in order to remedy the hazardous condition.
The plaintiffs in this action, who are present or former residents of the Borough of Throop, initiated this complaint in the Court of Common Pleas of Lackawanna County for the Commonwealth of Pennsylvania, on the basis of strict liability, general common law claims and state and federal environmental statutory law. They are seeking injunctive relief (in the form of constructive trusts for medical monitoring damages and clean up costs), monetary relief (for past clean up costs and future damages for medical monitoring), compensatory and exemplary damages and fees) and class certification pursuant to Fed. R. Civ. P. 23.
Gould moves this Court to dismiss paragraph two (2) of the Prayer for relief, Count II alleging strict liability for ultrahazardous activity, Count III alleging strict liability for abnormally dangerous activity, Count V, alleging public nuisance and paragraph 62(g) of the complaint, alleging that Gould's conduct constitutes negligence per se.
In regards to the class action allegations, the putative class contains three classes, primarily defined by the type of damage alleged to have been suffered. The class is bound by a geographical delineation.
The classes are defined as follows:
Class one: residential property damage class : These class members have suffered damage to property which is located within the class area.
Class two: medical monitoring class : These class members include:
(A) Children less than thirteen (13) years old as of the date of the filing of the complaint who have either lived within the class area for at least one year or been a regular visitor (spending at least five (5) hours per week in the aggregate on a regular basis) within the class area, over the course of at least one (1) year;
(B) Women presently less than forty-six (46) years old who have lived or been a regular visitor within the class area for at least one (1) year since January 1, 1962, when they were children, and the offspring of these women; and
(C) Women presently of childbearing age (ages 13 through 45 as of the date of the complaint) who presently live within the class area.
Class three: personal injury class : These class members are persons who have either lived within the class area for at least one (1) year or been a regular visitor (spending at least five (5) hours per week in the aggregate on a regular basis) within the class area, over the course of at least one (1) year and who have suffered deleterious health effects as a result of excess exposure to lead and other hazardous materials.
(Doc. 1, pp. 2-3, PP 3-5; pp. 15-22, PP 49-59).
Counsel for plaintiffs state that they do not know the exact size of the class, but believe that the number is in excess of 1,000 persons.
By order of Court dated May 17, 1996, (Doc. 22), a case management conference was conducted in order to discuss the litigation. As a result of said conference, the Court directed the parties to conduct discovery limited solely to class issues, and to file a report with the Court addressing said findings. (Doc. 26). These reports, consisting of volumes of case law, facts, exhibits and appendices, were filed with the Court, the last of which was received on November 14, 1996. (Doc. 33).
In deciding a motion to dismiss, all material allegations must be accepted as true and construed in a light most favorable to the non-moving party. Truhe v. Rupell, 641 F. Supp. 57 (M.D. Pa. 1985). Because a motion to dismiss results in a determination on the merits at the earliest stage of the proceedings, the court is obligated to construe the plaintiff's complaint liberally in favor of the plaintiff. Pittsburgh National Bank v. Welton Becket Associates, 601 F. Supp. 887 (W.D. Pa. 1985); Sturm v. Clark, 835 F.2d 1009 (3d Cir. 1987). A complaint should never be dismissed for failure to state a claim unless the court is convinced beyond doubt that the plaintiff can prove no set of facts to support a claim which would permit a recovery. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Hooten v. Pennsylvania College of Optometry, 601 F. Supp. 1151 (E.D. Pa. 1984).
Plaintiffs believe that class certification should not be determined via a motion to dismiss, claiming that "Rule 12(b)(6) motions can only be used to challenge the sufficiency of claims pled in a complaint, and cannot be used to challenge a class action, which is a procedural device, not a claim." (Doc. 11, p. 1). Plaintiffs' counsel cites Jenkins v. Fidelity Bank, 365 F. Supp. 1391 (E.D. Pa. 1973), and Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974), as their authority. The court in Fidelity did not dismiss the plaintiff's class action claim, stating that a class should not proceed unless the class is defined and that the named plaintiff is a member of the class. Fidelity, 365 F. Supp. at 1397. In this case, we directed the parties to conduct limited discovery in order for us to determine whether such prerequisites, among others, are present, as we were hesitant to address the class issue on the face of the pleadings. Furthermore, the Eisen court stated that "in determining the propriety of a class action, the question is not whether the plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Eisen, 417 U.S. at 178 (internal quotation and citation omitted). As discussed below, courts have deemed it appropriate to look beyond the class allegations and to look at the merits of the claim for the sole purpose of identifying the requirements of Rule 23.
"A class is not maintainable as a class action by virtue of its designation as such in the pleadings." In Re Medical Systems, Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). It has been held that "sometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiffs' claim, and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982). Therefore, we may address the substance or merits of the plaintiffs' case in order to determine whether the requirements of Rule 23(a) have in fact been met. See e.g. Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1977)(class determination involves considerations that are "enmeshed in the factual and legal issues comprising the plaintiff's cause of action"); Castano v. American Tobacco Co., 84 F.3d 734, 744, n.17 (5th Cir. 1996)("more complex determinations required in Rule 23(b)(3) class actions entail even greater entanglement with the merits"); D'Alauro v. GC Services LTD. Partnership, 168 F.R.D. 451, 454 (E.D.N.Y. 1996)("the court's determination of class certification motion may involve some considerations related to the factual and legal issues that comprise the plaintiff's cause of action").
I. SUBSTANTIVE ALLEGATIONS OF THE PLAINTIFFS' COMPLAINT
Gould contends that the plaintiffs have failed to state a claim upon which relief may be granted within Counts II, III, VI and within paragraph 62(g) of the complaint, all of which raise a claim under strict liability for ultrahazardous activity, strict liability for abnormally dangerous activity, public nuisance and negligence per se respectively. We partly agree.
As previously stated, this action is but one of many which were spawned by the operations of the site. Numerous actions have been initiated, many of which allege the same type of harm through the same type of claims.
In Beam, we held that the plaintiffs had failed to state a claim for strict liability for ultrahazardous and abnormally dangerous activities, as Pennsylvania courts do not recognize that the operation of a battery crushing plant is an ultrahazardous or abnormally dangerous activity. Likewise, in Ambrogi et. al. v. Gould Inc., civil action number 3:cv-88-1205 (M.D. Pa.), we granted Gould's similar motion to dismiss the plaintiffs' ultrahazardous and abnormally dangerous activity claims.
In the interest of promoting "evenhanded, predictable, and consistent development of legal principles", Payne v. Tennessee, 501 U.S. 808, 827, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1990), and since there has been no change in the law since our previous decisions, we find that the plaintiffs have failed to state a claim upon which relief may be granted as to Counts II and III of their complaint, that the plaintiffs have stated a claim for public nuisance, and that the plaintiffs have adequately pled negligence per se in such a manner which places Gould on notice of the allegation. We shall therefore grant Gould's motion in part as it pertains to Counts II and III of the plaintiffs' complaint, and shall deny Gould's motion in part as it pertains to Count VI and paragraph 62(g) of the complaint.
II. CLASS ACTION ALLEGATIONS
Within their complaint, the named plaintiffs allege a class of over one thousand parties. Counsel for Gould contends that this action should not proceed as a class action as certain prerequisites have not been met and, therefore, the plaintiffs class allegations should be dismissed.
A. Rule 23(a) Requirements
We state at the onset that the party seeking certification has the burden of showing that all of the requirements of Rule 23 have been met. Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994); Caruso v. Cleius Insulation Resources, Inc., 101 F.R.D. 530, 533 (M.D. Pa. 1986).
Fed. R. Civ. P. 23(a) states in relevant part:
One or more members of a class may sue...on behalf of all only if.(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims...of the representative parties are typical of the claims...of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
These four (4) mandatory requirements of impracticality, commonality, typicality and representativeness must be met in order for a class action to proceed. If but one of these mandatory elements is not met, then the class must fail. Class certification permits courts to treat common claims together, obviating the need for repeated adjudications of the same issues. In Re General Motors Corp. Pick-Up Truck Fuel Tank, 55 F.3d 768, 783 (3d Cir.), cert. denied, sub nom, General Motors Corp. v. French, 133 L. Ed. 2d 45, U.S. ; 116 S. Ct. 88 (1995). If facts are not common to the entire class and there is a need to address each party's claims individually, then a class action would not be an efficient device in doing so.
This class action also presents the issue of sub-classes, for there are three (3) classes alleged in this action, each claiming a specific damage. While these are sub-classes, it is common sense that all three classes must also meet the requirements of Rule 23(a) and (b). Retired Chicago Police Association v. City of Chicago, 7 F.3d 584, 599 (7th Cir. 1993).
In addition to these required elements, a proposed class must be able to meet one of the three (3) requirements of Rule 23(b).
It is important to understand that the requirements of Rule 23(a) and Rule 23(b) serve two important but equally different purposes. While the Rule 23(a) requirements specifically address "due process considerations and exist so that absent class members may be bound by the resulting class action judgment in accordance with due process", Liberty Lincoln Mercury v. Ford Marketing, 149 F.R.D. 65, 73
(D.N.J. 1993)(citations omitted), the requirements of Rule 23(b) "are designed to test whether...from a practical standpoint, there are any particular compelling circumstances which make representative litigation appropriate." Id. (internal quotations and citations omitted).
It is also equally important to state that even before Rule 23 is satisfied, there must actually be an identifiable or definable class. Daigle v. Shell Oil CO., 133 F.R.D. 600, 602 (D. Colo. 1990). Gould contends that there is no identifiable class, as the class is defined by geographical boundaries, and cites the Diagle case as its support.
In Diagle, the court exercised its discretion and declined to certify a class for personal injury and property damage said to have been caused by the defendants' clean up activity at a toxic waste disposal pond. The Diagle court held that there was no definable class, as the class was defined by geographical boundaries and not by the actions of the defendants. This case before us now is distinguishable from the Daigle case, for the putative class here is identified by the actions of the site. The boundaries merely establish and limit the class members; the class itself, however, is "defined by the activities of the ...