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Christine Reynolds, As Parent and v. Pbg Enterprises

July 6, 2011

CHRISTINE REYNOLDS, AS PARENT AND
NATURAL GUARDIAN FOR M.M., A MINOR; CHRISTINE REYNOLDS, IN HER OWN RIGHT,
PLAINTIFFS,
v.
PBG ENTERPRISES, LLC; PERRY GALLESE; DELAWARE COUNTY HOUSING AUTHORITY, DEFENDANTS.



The opinion of the court was delivered by: Pollak, J.

OPINION

This action involves a suit brought by plaintiff Christine Reynolds on behalf of her minor child, M.M., and in her own right against defendants PBG Enterprises, LLC ("PBG"), Perry Gallese ("Gallese"), and the Delaware County Housing Authority ("DCHA"). Before the court is DCHA's motion to dismiss the amended complaint. Plaintiffs (collectively "Reynolds") oppose the motion. For the reasons that follow, the court will grant the motion to dismiss.

I. Facts

As alleged in the amended complaint, Christine Reynolds and her son M.M. resided at 208 N. 6th St., Darby, Pennsylvania, from about May 1, 2004, until at least August 29, 2008.*fn1 They leased the apartment from defendants Gallese and PBG pursuant to the Section 8 voucher program*fn2 through the United States Department of Housing and Urban Development and the Delaware County Housing Authority voucher program. The lease was between only Reynolds and PBG, and there was a second, separate contract between DCHA and PBG for the housing subsidy.

M.M. is alleged to have been "exposed to a defective, dangerous and hazardous condition of the property, lead paint." (Am. Compl. ¶ 15.) It is alleged that the exposure was "ongoing . . . while the Plaintiffs were present within and about the [apartment] premises." (Am. Compl. ¶ 27.) As a result, M.M. had "abnormally high level[s] of lead exposure and sought medical treatment because of abnormal behavior and cognitive responses." (Am. Compl. ¶ 25.) It is alleged that M.M. was exposed to and ingested lead paint and thereby "suffered severe and painful bodily injuries including, but not limited to high levels of lead toxicity requiring chelation therapy, abnormal behavior, cognitive injuries, brain damage, hyperactivity, loss of appetite, excitability, attention deficits and diminished IQ." (Am. Compl. ¶ 29.) These injuries are alleged to have occurred "throughout the tenancy as a result of the ongoing exposure to the toxic lead substances." (Am. Compl. ¶ 26.)

Reynolds alleges that the defendants "should have know[n] that there existed a hazardous and defective condition of lead paint on the premises which would endanger the health and welfare of Plaintiffs." (Am. Compl. ¶ 24.) Reynolds further alleges that DHCA "was required to inspect the premises to ensure that it complied at all times with [federal housing and lead paint laws]" and "failed to notify the landlord of the premises and to take any remedial action to remove the defective and hazardous condition from the premises before minor Plaintiff [M.M.] was injured." (Am. Compl. ¶ 20.)

Reynolds initiated this action on August 27, 2010, against all defendants for the injuries suffered by M.M. DCHA filed a motion to dismiss the complaint, and in response, Reynolds filed an amended complaint (Docket No. 12) on October 28, 2010, against the same defendants. The following claims are asserted against DCHA in the amended complaint,*fn3 which fall into four general categories:

A. State law torts:

(1) Negligence (Count III, Am. Compl. ¶¶ 48--56);

(2) Strict Products Liability (Count IV, Am. Compl. ¶¶ 57--65);

(3) Strict Liability-Ultra Hazardous Activity (Count VII, Am. Compl.

¶¶ 79--82);

(4) Intentional infliction of emotional distress (Count XV, Am. Compl.

¶¶ 187--91);

(5) Loss of consortium (Count XVIII, Am. Compl. ¶¶ 205--06);

B. State law breach of contract (Count XVII, Am. Compl. ¶¶ 200--04);

C. 42 U.S.C. § 1983 liability:

(1) United States Housing Act (Count VIII, Am. Compl. ¶¶ 83--97);

(2) Lead-Based Paint Poisoning Prevention Act (Count IX, Am. Compl. ¶¶ 98--110);

(3) Residential Lead-Based Paint Hazard Reduction Act (Count X, Am. Compl. ¶¶ 111--23);

(4) Fifth and Fourteenth Amendments (Counts IX & X, Am. Compl. ¶¶ 100, 113);

D. Direct private rights of action:

(1) United States Housing Act (Count XI, Am. Compl. ¶¶ 124--43);

(2) Lead-Based Paint Poisoning Prevention Act (Count XII, Am. Compl. ¶¶ 144--62);

(3) Residential Lead-Based Paint Hazard Reduction Act (Count XIII, Am. Compl. ...


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