<p style="text-align: justify;">On May 5, 2023 in a lawsuit entitled <a href="https://www.pacourts.us/assets/opinions/Commonwealth/out/1338CD21_5-5-23.pdf?cb=1"><em>Atlantic Richfield Company, et al. v. The County of Montgomery</em>, <em>Pennsylvania</em>,</a> No. 1338 C.D. 2021 (Pa. Comm. Ct. 2023), an unanimous en banc panel for the Pennsylvania Commonwealth Court ordered the dismissal of a suit filed by Montgomery County seeking to hold paint manufacturers liable for lead paint in residential structures under a novel theory of public nuisance.</p>
<p style="text-align: justify;">Specifically, Montgomery County, Pennsylvania (“Montgomery County”) filed a complaint against various paint manufacturers seeking a declaratory judgment that lead paint is a public nuisance under the common law as well as the Lead Certification Act (Certification Act), Act of July 6, 1995, P.L. 291, No. 44, 35 P.S. §§ 5901-5916. In doing so, Montgomery County pursued a novel legal theory that lead paint is a public nuisance under the Lead Certification Act, which regulates activities involving lead-based paint, but does not outright identify lead paint to be a public nuisance. Despite this, Montgomery County argued that the statute nonetheless makes the connection through its language, calling lead poisoning a public health threat and that its citizens have a common right to be free from the detrimental effects of exposure to lead paints/pigments in, on, and around private homes / residences throughout the county.</p>
<p style="text-align: justify;">In appealing the trial court’s dismissal of the paint manufacturers’ preliminary objections, the manufacturers argued that the County’s proposed interpretation of the Certification Act was contrary to its plain language and legislative intent and that even if proven, Montgomery County had failed to establish proximate causation under Pennsylvania tort law. Ultimately, the Commonwealth Court agreed and reversed the trial court, thereby dismissing the lawsuit. The Commonwealth Court unanimously rejected Montgomery County’s argument that lead paint constitutes a public nuisance under the Certification Act and determined that even if so, the Act does not empower a Pennsylvania county to sue paint manufacturers for creating a public nuisance.</p>
<p style="text-align: justify;">In approaching the merits of the common law public nuisance claims, the Commonwealth Court determined that the existence of lead paint in one dwelling was not necessarily transitory in nature where the surrounding community members would also be impacted as necessary to constitute a public nuisance. Furthermore, such a finding would be in contrast to Pennsylvania precedent related to lead paint claims. Pennsylvania courts have declined to apply market share liability theory to lead paint claims. Instead, Pennsylvania law requires that such claims be made on a property-by-property basis proving that lead paint or pigment manufactured by a particular identified defendant is present and causing harm at a particular property. In dismissing the claims against the manufacturers, the Commonwealth Court acknowledged that Montgomery County’s allegations were essentially a products liability claim raised improperly under the guise of a public nuisance action.</p>
<p style="text-align: justify;">Through this precedential ruling in <em>Atlantic Richfield Company</em>, the Pennsylvania Commonwealth Court shut down Montgomery County’s attempt to pave a novel avenue for fellow political subdivisions to combat exposure risks related to lead paint injuries its residents. Yet, had Montgomery County been successful, shifting risk to the paint manufacturers through any subsequent lawsuits could have rewarded irresponsible landlords for failing to follow existing laws and subjecting vulnerable communities to substandard housing.</p>
Thanks to Kendal Hutchings for her contribution to this article. Should you have any questions, contact <a href="firstname.lastname@example.org">Matthew Care</a>.