PITTSBURGH – A Western Pennsylvania woman has maintained her claims that a local scrap metal processing facility’s emission of noxious odors, particulates and imposition of noise has negatively affected a number of surrounding area homeowners.
Sonia Kowal (on behalf of herself and all others similarly situated) of Emsworth first filed suit in the Allegheny County Court of Common Pleas on Nov. 5, 2021 versus Metalico Pittsburgh, Inc. (doing business as “Metalico Neville Recycling”), of Neville Township.
The suit explained that the facility is located on an isle in the Ohio River in Neville Township, and is adjacent to residential properties.
“The facility accepts substantial qualities of ferrous and non-ferrous scrap metals from various entities, including demolition contractors, machine shops, fabricators and general manufacturers. The scrap metals accepted by the facility include, but are not limited to, steel, iron, aluminum, copper, lead and nickel-based steel and other high-temperature alloys. The facility also accepts discarded automobiles,” the suit said.
“These scrap metals are broken down and sorted using smashers and shredders, ad them melted in furnaces at high temperatures. Barges are used to transport materials to and from the facility. The byproducts generated by the facility’s operations include noxious odors and gases, dust, flames, smoke and plumes, ash and soot and metallic particles. The plaintiff’s and putative class’s properties have been, and continue to be, physically invaded by fugitive noxious odors and air particulates emitted from the facility.”
The suit continued that a “properly designed, operated and maintained scrap metal facility will adequately capture, remove and dispose of noxious odors and air particulates, and prevent them from escaping into the air as fugitive emissions.”
“Defendant has failed to use adequate odor and particulate mitigation strategies, processes, technologies and/or equipment to control fugitive emissions from the facility and prevent those fugitive emissions from physically invading the homes and properties of the plaintiff and putative class,” the suit stated.
The suit continued that the facility has allegedly had a similar disregard for noise management, and has allowed the class plaintiffs to be disturbed night and day by the facility’s operations.
Metalico Pittsburgh, Inc. filed preliminary objections to the complaint on Jan. 7.
“Even ignoring the flawed presumption that Neville Township’s Zoning Ordinance Performance Standards apply to defendant’s operations, plaintiff’s allegations still fail because they cite purported noise restrictions inapplicable to defendant’s facility. The complaint alleges that the facility must limit its noise levels to 55 dBA during the hours of 7 a.m. until 7 p.m., and to 50 dBA during the hours of 7 p.m. until 7 a.m. But this noise performance standard applies only to residentially-zoned properties. Plaintiff does not allege – and cannot allege – that defendant’s facility is zoned as a residential property,” the objections stated, in part.
The defendant added that as the plaintiff is a resident of Emsworth Borough, the Noise Performance Standards guiding noise levels within Neville Township are not applicable to her property, which is located in an entirely different municipality.
Furthermore, the defendant argued that the plaintiff had not shown sufficient cause for punitive damages and that many of her allegations relied upon catch-all language, which did not meet fact-pleading standards of specificity.
The defendant concurrently filed a motion to assign the case to the Allegheny County Commerce and Complex Litigation Center that same day, Jan. 7.
“This case is appropriate for assignment to the Commerce and Complex Litigation Center because it was brought as a purported class action, and is thus presumptively assigned to the Commerce and Complex Litigation Center, where the Class Action Judge has not assumed responsibility. Assignment of this action to the Commerce and Complex Litigation Center will serve the interests of judicial economy, will not prejudice any party and will serve to foster and promote the most efficient, cost effective, timely, and fair resolution of the case,” per the motion.
Per a Jan. 27 response brief, the plaintiff stands by her allegations and refuted the defendant’s preliminary objections, calling its attempt at a procedural defense “unavailing.”
“First, the Noise Ordinance, 50-55dBA Noise Level Restriction, and Noise Study are not scandalous or impertinent; they are manifestly relevant to plaintiff’s allegations of tortious noise emitted from defendant’s facility. The facility is located in Neville Township and subject to the ordinance. The Noise Study documents noise levels at plaintiff’s property attributable to the facility. Although violation of the ordinance may not create a cause of action for plaintiff, defendant’s violations substantiate plaintiff’s claims,” the brief stated.
“Second, plaintiff alleges that property damages were caused by defendant’s intentional, knowing, willful, and/or reckless conduct and that defendant acted with conscious disregard for the rights of the plaintiff and putative class. Specifically, defendant was fully aware of its emissions and the effect those emissions were having on the plaintiff and putative class, but nevertheless continued operating in tortious fashion. If these allegations are proven at trial, punitive damages are warranted.”
The plaintiff added that each cause of action is clearly alleged and supported by material facts stated in a concise and summary form, as required by Rule 1019(a) of the Pennsylvania Rules of Civil Procedure.
“Defendant is well aware of the claims against it, and is fully capable of preparing a defense to each claim based on what is pleaded in the complaint. Plaintiff concedes that her allegation at Paragraph 48 of the complaint relating to vicarious liability lacks sufficient specificity and may be stricken. Aside from that one exception, defendant’s preliminary objections should be overruled,” the brief said.
UPDATE
On Oct. 21, Allegheny County Court of Common Pleas Judge Philip A. Ignelzi overruled the defense’s preliminary objections. Subsequently, the defense filed an answer and new matter on Nov. 10.
“Plaintiff’s claims are barred as plaintiff has failed to state a claim upon which relief may be granted. Plaintiff has failed to state a claim for attorneys’ fees under Pennsylvania law. Plaintiff’s claims are barred as, at all times relevant hereto, defendant complied with each and every duty and obligation imposed upon them by contract, statute, regulation or common law with regard to its work and/or operations. Plaintiff’s claims are barred, in whole or in part, by the parol evidence rule. Plaintiff’s claims are barred, in whole or in part, by laches. Plaintiff’s claims are barred as plaintiff has failed to state a cognizable claim for damages under Pennsylvania law. To the extent plaintiff has incurred damages (which is denied), the damages were caused by the actions of independent contractors or third-parties whom defendant did not have the right to control, and whom defendant did not control, and for whom defendant is not responsible,” the answer stated, in part.
“Plaintiff’s claims are barred as defendant owed no duty of care to plaintiff. Alternatively, if it is found a duty of care was owed by defendant, it did not breach that duty. Plaintiff’s claims are barred and/or reduced as plaintiff incurred or assumed the risk of the events alleged in plaintiff’s complaint. Plaintiff’s claim is barred to intervening and superseding causes by which defendant had no control. If it is determined that defendant was negligent in any respect (which is expressly denied) then in that event such alleged negligence was not the factual cause and/or legal proximate cause of the alleged injuries and damages, if any, sustained by plaintiff. Plaintiff’s claims are barred as defendant was not negligent, reckless, or careless at any time or in any manner concerning the operations alleged in plaintiff’s complaint. To the extent odors, particulate emissions, and noise entered plaintiff’s property (which is denied) plaintiff’s claims are barred as defendant is not the source of said odors, particulate emissions, and noise.”
The defendant adds that its operations are legally authorized by governmental permits and/or licensures and regulated by the Allegheny County Health Department, Pennsylvania Department of Environmental Protection, the United States Environmental Protection Agency and/or other governmental entities.
In response, the plaintiff replied to the new matter on Nov. 29.
“Paragraphs 94-118 recite legal conclusions to which plaintiff need not respond. Nevertheless, the same are hereby denied,” according to the reply.
For counts of private nuisance, public nuisance and negligence, the plaintiffs are seeking a long list of reliefs, including judgment for a monetary amount in excess of the jurisdictional limits of compulsory arbitration, actual, compensatory and punitive damages, including pre- and post-judgment interest, an order that the aforementioned noxious odors, particulates and noise upon the plaintiffs’ properties constituted a nuisance, an order that the defendant bringing said odors, particulates and noise constituted negligence, an award to the plaintiffs for injunctive relief consistent with the defendant’s state and federal regulatory obligations, such further relief, both general and specific, that the Court deems just and proper, in addition to a trial by jury.
The plaintiffs are represented by James E. DePasquale of James E. DePasquale Law, in Pittsburgh.
The defendant is represented by James Barnette Insco of Gordon & Rees, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-21-013665
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com