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).
Standard of Review
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.