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United States District Court, E.D. Pennsylvania

May 14, 2004.

MERRILL MEST et al., Plaintiffs
CABOT CORPORATION et al., Defendants

The opinion of the court was delivered by: CYNTHIA RUFE, District Judge


By Order dated April 29, 2004, the Court granted summary judgment in favor of Defendants on statute of limitations grounds with respect to Plaintiffs' claims arising from Defendants' conduct prior to November 10, 1998. However, the Court reserved judgment on Plaintiffs' Motion for Partial Summary Judgment and on the additional arguments raised in Defendants' Motion for Summary Judgment. For the reasons set forth below, Defendants' Motion is granted in part and denied in part, and Plaintiffs' Motion is denied.


  The Court previously set forth a detailed recitation of the factual background in its April 29, 2004 Order, and we incorporate those facts as if stated herein.*fn2 For the sake of clarity, however, a limited synopsis of those facts follows.

  Plaintiffs Wayne and Suzanne Hallowell (the "Hallowells") own and operate two non-contiguous dairy farms, one at 1150 Congo Road, Gilbertsville, Montgomery County, Pennsylvania (the "Congo Road Farm"), and the other at 176 Washington Road, Bechtelsville, Berks County, Pennsylvania (the "Washington Road Farm") (collectively referred to as the "Hallowell Farms").*fn3 The Hallowells and their family have farmed their land for over thirty years, and the land has been in the Hallowell family since approximately 1950.

  Plaintiffs Merrill and Betty Mest (the "Mests") own and operate a dairy farm located at 3059 Keyser Road, Schwenksville, Montgomery County, Pennsylvania (the "Mest Farm"). The Mests have farmed their land for at least forty years. Both the Mests and the Hallowells also lease fields near their farms to grow forage crops for use in their dairy farm operations. Defendants Cabot Corporation and Cabot Performance Materials (collectively referred to as "Cabot") have operated a specialty metals manufacturing facility in Boyertown, Pennsylvania (the "Boyertown Facility") since 1978. The Boyertown Facility was previously owned and operated by Kawecki Berylco Industries, Inc. ("KBI"). The Congo Road Farm is located approximately one mile east of the Boyertown Facility. The Washington Road Farm is located approximately one mile northwest of the Boyertown Facility. The Mest Farm is located approximately four miles southeast of the Boyertown Facility.*fn4

  As a byproduct of its operations, the Boyertown Facility emits fluoride, which, while not harmful to humans, can cause a disease called fluorosis in cows that eat forage containing significant quantities of fluoride. Plaintiffs allege that fluoride emitted from the Boyertown Facility has been migrating by air to their farms and contaminating their vegetation, causing Plaintiffs' cows to suffer from fluorosis and exhibit resulting symptoms, including stained or "mottled" teeth, decreased milk production, and various reproductive problems.

  Since approximately 1976, numerous studies and investigations have been conducted on the Boyertown Facility's emissions and their effect on the surrounding land and Plaintiffs' dairy cows. Plaintiffs initiated some of these studies, while governmental agencies or third parties initiated others. None of the studies conducted before 1999 resulted in a diagnosis of fluorosis in Plaintiffs' cows; several specialists even ruled out fluorosis as the cause of Plaintiffs' cows' problems.

  However, in 1999, Plaintiffs' expert, Dr. Lennart Krook, investigated Plaintiffs' cows and concluded that they were suffering from fluorosis.


  A. Count I — Nuisance

  The Supreme Court of Pennsylvania has adopted the Restatement (Second) of Torts as the definition of private nuisance.*fn6 As explained in Karpiak v. Russo, 676 A.2d 270, 272-73 (Pa. Super. 1996), the relevant sections of the Restatement provide: § 822. General Rule


One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.
The Restatement indicates that a defendant is not subject to liability for an invasion unless the invasion caused significant harm, which is defined as:
§ 821F. Significant Harm
There is liability for a nuisance only to those to whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.
Comment C to section 82IF further explains the meaning of significant harm:
c. Significant harm. By significant harm is meant harm of importance, involving more than slight inconvenience or petty annoyance. The law does not concern itself with trifles, and therefore there must be a real and appreciable invasion of the plaintiffs interests before he can have an action for either a public or private nuisance. . . . In the case of a private nuisance, there must be a real and appreciable interference with the plaintiff's use or enjoyment of his land before he can have a cause of action.
When [the invasion] involves only personal discomfort or annoyance, it is sometimes difficult to determine whether the invasion is significant. The standard for the determination of significant character is the standard of normal persons or property in the particular locality. If normal persons living in the community would regard the invasion in question as definitely offensive, seriously annoying or intolerable, then the invasion is significant.*fn7
  Defendants argue that "[b]ecause there is no evidence that air, soil, groundwater, or surface water at Plaintiffs' farms has ever exceeded applicable health and safety standards for fluoride, Plaintiffs cannot demonstrate that they have suffered `significant harm' necessary to support a nuisance claim."*fn8 This argument assumes that a violation of health and safety standards is necessary for a nuisance claim to succeed. However, such a violation is not a requirement for a nuisance claim.*fn9 Moreover, Defendants rely entirely on the EPA Report's conclusion that fluoride concentrations at Plaintiffs' farms were at acceptable levels and simply ignore Plaintiffs' evidence that Defendants violated environmental standards and that fluoride from the Boyertown Facility caused Plaintiffs' cow problems. Accordingly, a genuine issue of material fact exists, and summary judgment is not appropriate for this claim. B. Count IV — Negligence Per Se*fn10

  Plaintiffs base their negligence per se claims on (1) Defendants' violation of the Pennsylvania Air Pollution Control Act ("PAPCA"), 35 Pa. Stat. Ann. § 4001 et seq., and (2) on Defendants' violation of the requirements of its Nuclear Regulatory Commission License (the "NRC license"). "Negligence per se has been defined as conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances.*fn11" To prove a claim of negligence per se, a plaintiff must prove four elements:

(1) The purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally;
(2) The statute or regulation must clearly apply to the conduct of the defendant;
(3) The defendant must violate the statute or regulation;
(4) The violation of the statute or regulation must be the proximate cause of the plaintiffs injuries.*fn12
With respect to Plaintiffs' claim under PAPCA, Defendants argue that summary judgment should be granted because Plaintiffs cannot establish either the first or fourth elements. With respect to Plaintiffs' claim under the NRC license, Defendants argue that Plaintiffs cannot establish the third element. Both claims are discussed below.

  Defendant did not move for summary judgment on Counts II (Trespass) and III (Negligence) other than on the statute of limitations, which the Court granted by separate opinion. 2004 U.S. Dist LEXIS 7497. 1. PAPCA

  Defendants argue that the purpose of PAPCA is to protect the public generally, as opposed to a particular group of individuals to which Plaintiffs belong. As such, assert Defendants, PAPCA does not satisfy the first element of negligence per se.*fn13 The "Declaration of Policy" set forth at the beginning of PAPCA states:

It is hereby declared to be the policy of the Commonwealth of Pennsylvania to protect the air resources of the Commonwealth to the degree necessary for the (i) protection of public health, safety and well-being of its citizens; (ii) prevention of injury to plant and animal life and to property; (iii) protection of the comfort and convenience of the public and the protection of the recreational resources of the Commonwealth; (iv) development, attraction and expansion of industry, commerce and agriculture; and (v) implementation of the provisions of the Clean Air Act in the Commonwealth.*fn14
This declaration makes clear that the purpose of this statute is to protect the air in Pennsylvania for the benefit of the public generally, not for the benefit of a particular group of individuals. Plaintiffs contend that the reference to "prevention of injury to plant and animal life and to property" and "agriculture" demonstrate that PAPCA was intended to protect farmers. This argument lacks merit. As the Commonwealth Court of Pennsylvania has stated: "[t]here can be no doubt from a reading of [PAPCA] that the legislative intent is to clean the air insofar as is reasonably possible under the police powers granted to the Commonwealth in both the State and Federal Constitutions."*fn15 Plaintiffs' claim is almost identical to that of the plaintiffs in Wagner, who asserted a negligence per se claim under the Philadelphia Air Management Code of 1969. The Wagner court affirmed the trial court's grant of a directed verdict in favor of the defendants, concluding:
It is clear from these findings that the purpose of the Code was to protect the "atmosphere over the City" of Philadelphia, with a concomitant benefits to its "inhabitants." There is no indication in these findings that the Code was meant to protect a particular class of individuals; rather it was enacted in "furtherance of the health and welfare of [the] City's inhabitants, to the conduct of the normal pursuits of life, recreation, commerce and individual activity, and to sustaining life in an urban area."*fn16
The court further noted that "a statute governing air quality, by its nature, is directed to the population in general."*fn17 As with the Philadelphia Air Management Code, PAPCA was enacted to clean the air for the benefit of the public in general.

  Plaintiffs also argue that because PAPCA creates a private right of action, it provides a sufficient basis to support a claim in negligence per se.*fn18 Plaintiffs are partially correct: "[t]he issue of whether a plaintiff can assert a cause of action based on negligence per se is closely related to the question of whether a private cause of action exists under a statute."*fn19 Courts have held, however, that when a statute only provides a private right of action to compel enforcement of that statute and not for damages, this standard does not necessarily apply.*fn20

  PAPCA provides for a private right of action "to compel compliance with this act or any rule, regulation, order or plan approval or permit issued pursuant to this act. . . ."*fn21 It also allows individuals to request civil penalties to be paid into a Clean Air Fund established by the Act or to be used to prevent air pollution in the county where the violation occurred. PAPCA does not, however, create a private right of action for monetary damages. For this reason, and because the purpose of the Act is to protect the public generally, PAPCA cannot serve as the basis of a negligence per se claim. Accordingly, summary judgment is appropriate on Plaintiffs' negligence per se claim based on PAPCA.*fn22

  2. NRC License

  Plaintiffs also allege that Defendants violated the requirements of its NRC License and that this violation is a sufficient basis for a negligence per se claim. This argument fails because Plaintiffs misconstrue the NRC License to require that Defendants not cause vegetation near the Boyertown Facility to contain more than 40 parts per million (ppm) of fluoride. However, the NRC License contains no such a requirement. Rather, its only requirement relating to fluoride states:

[Defendants] shall monitor for fluoride in forage crops at least twice during harvest time from acreage adjacent to the Boyertown site on the east side of County Line Road. If the average fluoride concentration exceeds 40 ppm, the incident shall be reported in writing to the Pennsylvania Department of Environmental Resources, Norristown Regional Air Pollution Control Engineer, and to the Uranium Fuel Licensing Branch.*fn23
Defendants only violate this provision if they do not report when fluoride concentrations exceed 40 ppm. Plaintiffs cite to no evidence of such a violation and even cite to Defendants' letters reporting when fluoride concentrations exceeded 40 ppm in compliance with the NRC License. Accordingly, summary judgment is appropriate for this negligence per se claim as well.

  D. Count V — Negligent Interference with Business

  There is no cause of action for negligent interference with business under Pennsylvania law. In their Response in Opposition, Plaintiffs attempt to transform this claim into one for intentional interference with business relations. This attempt fails because: 1) Plaintiffs did not properly plead a cause of action for intentional interference with business relations despite having amended their complaint twice;*fn24 and 2) even if Plaintiffs had properly pled this cause of action, they have presented no evidence sufficient to establish any of the elements of such a cause of action.*fn25 Accordingly, summary judgment is appropriate for this claim.

  E. Count VI — Outrageous Conduct

  Plaintiffs purport to assert a cause of action for "outrageous conduct" that is independent from a cause of action for infliction of emotional distress. They argue that this cause of action is sufficient to sustain a demand for punitive damages. Plaintiffs are mistaken: Pennsylvania law does not recognize a separate cause of action for punitive damages.*fn26 Accordingly, summary judgment is granted as to this cause of action.

  Plaintiffs also incorrectly argue that even though they have not asserted a cause of action for intentional infliction of emotional distress, they can still recover damages for emotional distress under their other tort claims without any heightened pleading or proof requirements.*fn27"Except in general limited situations not applicable here, Pennsylvania law does not permit the recovery of damages for emotional distress `in the absence of physical manifestation of the emotional distress allegedly suffered.'"*fn28 The facts in Mateer, a case relied upon by Defendants, are quite similar to the case before the Court. In Mateer, the plaintiffs asserted causes of action for negligence, trespass, nuisance and strict liability, alleging that toxic materials deposited at a neighboring quarry contaminated their groundwater. The court granted the defendants' motion for summary judgment on the plaintiffs' claims for emotional distress, stating, "as the plaintiffs have not demonstrated either actual or potential personal injury related to the contamination of their well, they are not entitled to damages for emotional distress."*fn29 As in Mateer, Plaintiffs here do not present any evidence of actual or potential personal injury related to the injuries suffered by their cows.

  The cases Plaintiffs cite in support of their position are inapposite. In Little v. York, 481 A.2d 1194 (Pa. Super. 1984), the court allowed the recovery of emotional distress damages for humiliation where the plaintiff had been falsely imprisoned, but not physically harmed, due to the negligent misrepresentation of the defendant. The court restricted its holding to the facts of the case and did not hold, as Plaintiffs erroneously contend, that emotional distress damages are recoverable in any situation and for any tort.*fn30

  The holding in Tran v. General Motors Acceptance Corp., Civ. A. No. 88-1836, 1989 U.S. Dist. LEXIS 6616, *6-7 (E.D. Pa. June 12, 1989), is similarly distinguishable because it is tied to the facts. In Tran, the defendant's agents pounded on the door to the plaintiffs' home at 3:30 a.m. The agents allegedly "were loud and abusive and acted in a threatening manner," and when the plaintiffs failed to hand over the keys to the plaintiffs' car, the agents broke the lock to the plaintiffs' back gate and broke into the car.*fn31 The court found that the plaintiffs might be able to recover for the emotional distress that resulted from defendants' alleged trespass. As Defendants cogently point out, in both Tran and Little, "the conduct for which [the] plaintiffs sought to recover damages for emotional distress involved physical impact or the threat of physical impact, and the primary injury suffered would naturally give rise to significant emotional distress. By contrast, this case . . . involves nothing more than a claim for traditional property damage. In such a case, it cannot be said that emotional distress is a natural and inevitable consequence of the alleged misconduct."*fn32

  While Plaintiffs allege that for up to thirty years they experienced, inter alia, worry, headaches, chest pains, arm numbness and lack of sleep, they have presented no evidence in the form of expert opinions or testimony demonstrating that these alleged injuries are the result of their emotional distress. Further, it is not forseeable or inevitable that severe emotional distress to Plaintiffs would result from injuries to their dairy cows. Accordingly, summary judgment is granted on Plaintiffs' claims for emotional distress damages.

  F. Counts VII and VIII — Fraud and Fraudulent Misrepresentation or Nondisclosure

  With these counts, Plaintiffs simply assert separate causes of action for the same alleged misrepresentation and concealment that they argue tolled the statute of limitations as to their other causes of actions. In the Court's April 29, 2004 Order, the Court found these arguments wanting because, inter alia, Plaintiffs' reliance on any of Defendants' statements was not reasonable.*fn33 For the same reasons, summary judgment is granted as to these causes of action.

  G. Plaintiffs' Motion for Partial Summary Judgment

  Mystifyingly, Plaintiffs have also filed a motion for partial summary judgment, asking the Court to find in favor of Plaintiffs on liability as to several of their causes of action and leaving only the amount of damages for trial. Plaintiffs first argue that they could not have discovered the cause of their cows' injuries prior to 1999 because every specialist who had investigated their herds and farms up to that point had concluded that their cows were not suffering from fluorosis, and then argue that there are no genuine issues of material fact relating to Defendants' liability for Plaintiffs' cows' fluorosis. Needless to say, simply because Plaintiffs were finally able to retain an expert who would support their claims does not render irrelevant the results of the earlier investigations, including their own. Accordingly, Plaintiffs are not entitled to summary judgment.

  An appropriate Order follows. ORDER

  AND NOW, this 14th day of May, 2004, after a hearing, and upon consideration of each of the numerous pleadings and exhibits relating to Plaintiffs Merrill Mest, Betty Mest, Suzanne Hallowell (individually and as Trustee), Wayne Hallowell (individually and as Trustee), Sean Hallowell, Amber Hallowell (a minor, by her next friend and parent, Wayne Hallowell), The Hallowell Farms Partnership, and The Wayne Z. Hallowell Family Revocable Trust's Motion for Partial Summary Judgment and Defendants Cabot Corporation and Cabot Performance Materials' Motion for Summary Judgment,*fn34 and for the reasons set forth in the attached memorandum opinion, it is hereby ORDERED that Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART, and Plaintiffs' Motion of Partial Summary Judgment is DENIED. It is further ORDERED that:

1. Defendants' Motion for Leave to File a Sur-Reply Memorandum [Doc. #95] is DENIED. The Court did not consider the Sur-Reply Memorandum attached to said Motion when issuing the instant Order.
2. JUDGMENT IS ENTERED in favor of Defendants and against Plaintiffs on Count IV (Negligence Per Se), Count V (Negligent Interference with Business), Count VI (Outrageous Conduct), Count VII (Fraud), and Count VIII (Fraudulent Misrepresentation or Non-Disclosure) of the Second Amended Complaint.
3. Plaintiffs are precluded from recovering damages for emotional distress.
4. Defendants' arguments regarding Plaintiffs' damages (other than emotional distress damages) are premature, and the Court did not consider them. The Court reserves ruling on such arguments until trial.
5. Defendants' Motion for Summary Judgment is DENIED as to Count I (Nuisance), Count II (Trespass), and Count III (Negligence), with respect to Defendants' conduct after November 10, 1998.*fn35
It is so ORDERED.

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