Hurt v. Philadelphia Housing Authority
| Decision Date | 27 August 1992 |
| Docket Number | Civ. A. No. 91-4746. |
| Citation | 806 F. Supp. 515 |
| Parties | Harold and Evangeline HURT, et al., v. PHILADELPHIA HOUSING AUTHORITY, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
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Herbert Monheit, Maryann Monheit, Law Offices of Herbert Monheit, Philadelphia, Pa., Kenneth F. McCallion, Bernard Persky, James W. Johnson, Arthur M. Neiss, Goodkind, Labaton & Rudoff, New York City, for Harold Hurt, Evangeline Hurt, Tanya Parker and Veronica Cooper.
Denise J. Baker, Roxanne D. Galeota, Philadelphia Housing Authority, Lois W. Davis, Asst. U.S. Atty., Alan C. Kessler, Buchanan Ingersoll Professional Corp., Philadelphia, Pa., Elaine Romberg, Felix Baxter, Dept. of Justice, Civ. Div., Washington, D.C., for Philadelphia Housing Authority.
Lois W. Davis, Asst. U.S. Atty., Elaine Romberg, Felix Baxter, Dept. of Justice, Civ. Div., Washington, D.C., for Jack Kemp, U.S. Dept. of Housing and Urban Development and U.S.
Patrick K. O'Neill, Philadelphia Solicitor's Office, John B. Day, Thomas J. Wamser, Deputy City Sol., Michael Mathers, City of Philadelphia, Law Dept., R. Matthew Pettigrew, Jr., Asst. City Sol., Philadelphia, Pa., for City of Philadelphia.
Joseph B.G. Fay, Thomas M. Kittredge, Morgan Lewis & Bockius, James D. Pagliaro, Philadelphia, Pa., Mary Morrissey Sullivan, Mark L. Sullivan, Sullivan, Sullivan, & Pinta, Boston, Mass., for Lead Industries Ass'n, Inc.
Jonathan F. Bloom, Bennett G. Picker, Bolger, Picker, Hankin & Tannenbaum, Philadelphia, Pa., Donald E. Scott, Timothy S. Hardy, John S. Walker, Kirkland & Ellis, Washington, D.C., for NL Industries, Inc.
Robert C. Heim, Mary A. McLaughlin, Abigail R. Simkus, Dechert, Price & Rhoads, Philadelphia, Pa., Otis Pratt Pearsall, Philip H. Curtis, William H. Voth, Arnold & Porter, New York City, Murray Garnick, Lawrence V. Stein, Arnold & Porter, Washington, D.C., for Atlantic Richfield Co.
John P. Penders, Marshall, Dennehey, Warner, Coleman and Goggin, Philadelphia, Pa., Charles H. Moellenberg, Jr., Alan D. Chute, Jones, Day, Reavis & Payne, Pittsburgh, Pa., for Sherwin-Williams Co.
Michael K. Sullivan, Drinker, Biddle & Reath, Philadelphia, Pa., G. Marc Whitehead, Michael T. Nilan, Scott A. Smith, Minneapolis, Minn., for SCM Corp. and Glidden Co.
Andre L. Dennis, Stradley, Ronon, Stevens & Young, Philadelphia, Pa., Charles W. Siragusa, Wade R. Joyner, Crowley, Barrett & Karaba, Ltd., Chicago, Ill., for Fuller-O'Brien Corp.
Mark Lynch, Norman L. Haase, Emily Morris Salmons, Dunn, Haase, Sullivan, Mallon, Cherner & Broadt, Media, Pa., for St. Joe Minerals Corp.
James D. Shomper, Jr., Gary N. Brown, Dupont Co., Wilmington, Del., for E.I. Dupont De Nemours & Co.
Thomas A. Kuzmick, Rawle & Henderson, Philadelphia, Pa., for Carboline Co.
Paul F. Lantieri, Bennett, Bricklin & Saltzburg, Philadelphia, Pa., Lawrence J. Gornick, James L. Miller, William A. Levin, Amy J. Levin, Brobeck, Phleger & Harrison, San Francisco, Cal., for Devoe Coating Co.
Natalie Tull Greene, Thomas P. Grace, LaBrum and Doak, Philadelphia, Pa., Glenn M. Cooper, Ronald Dweck, Paley, Rothman, Goldstein, Rosenberg and Cooper, Bethesda, Md., for Duron, Inc.
Michael J. Sweeney, James R. Miller, Dickie, McCamey & Chilcote, P.C., Pittsburgh, Pa., for Pratt & Lambert, Inc.
Mitchell S. Pinsly, Philadelphia, Pa., for Rust-Oleum Corp. and XIM Products, Inc. Linda T. Jacobs, Cohen, Shapiro, Polisher, Shiekman & Cohen, Philadelphia, Pa., for Ameron, Inc.
Joanne R. Jenkins, Thompson & Pennell, Joseph R. Thompson, Philadelphia, Pa., for The Valspar Corp.
William J. O'Brien, Conrad, O'Brien, Gellman, De Stefano & Rohn, Philadelphia, Pa., for Courtalds Coatings, Inc.
Thomas B. York, Dept. of Public Welfare, Harrisburg, Pa., for Regina Dunkinson, and Bureau of Hosp. and Outpatient Programs.
Plaintiffs are past and/or present residents of housing units owned and/or managed by the Philadelphia Housing Authority ("PHA"). Plaintiffs have filed a class action suit against PHA, other local, state, and federal government instrumentalities and officials, lead-pigment manufacturers, and those manufacturers' trade association. Plaintiffs advance a plethora of claims against defendants based upon injuries allegedly sustained as a result of exposure to lead-based paint applied to their PHA housing units.1 Plaintiffs seek both compensatory and injunctive relief. All remaining defendants2 except for Pennsylvania Department of Health ("DOH") and Regina Dunkinson ("Dunkinson"), the Director of DOH, have filed motions to dismiss.
Plaintiffs' Amended Complaint is grounded upon the foundational allegation that "lead is a toxic substance with serious adverse affects sic on human beings" and "is particularly hazardous to young children under the age of six...." Amended Complaint at ¶ 50. In support of their allegations plaintiffs cite a summary statement of the Consumer Product Safety Commission, 16 C.F.R. § 1303.5. Amended Complaint at ¶ 55. The Safety Commission notes that "there are three stages to childhood lead poisoning." Id. While "the adverse health effects in the first stage are not clinically present," the second stage generates "such symptoms as loss of appetite, vomiting, apathy, drowsiness, and inability to coordinate voluntary muscle movements" and after-effects which "include seizure disorders as well as various behavioral and functional disorders often included under the heading of minimal brain dysfunction." Id. Finally, "the adverse health effects of the third stage may be permanent and can include blindness, mental retardation, behavior disorders, and death." Id.
Plaintiffs allege that "the greatest danger of lead poisoning for City children is posed by the ingestion of peeling or flaking lead paint which has been applied to buildings where they reside or spend significant amounts of time." Amended Complaint at ¶ 54. According to plaintiffs, "such poisoning also results from breathing crumbling and oxidizing lead paint that had been applied to buildings where City children reside or spend significant amounts of time." Id. Plaintiffs and other class members3 are suing on behalf of themselves and their children, alleging that they have incurred the above-described injuries because, "from the date of the inception of plaintiffs' and other Class members' residency in PHA premises to the present, the minor plaintiffs and other minor Class members have been exposed numerous times to the hazards of lead, and to this day continue to be exposed to lead directly and/or indirectly from the interior and/or exterior surfaces of the premises." Amended Complaint at ¶ 89.
Eight of the first ten counts of the Amended Complaint (Counts I-II and V-VIII) allege violations of federal statutes by City and Federal Defendants.4 Counts I-II and V-VIII allege violations of 42 U.S.C. § 1983 ("§ 1983").5 In Count I plaintiffs allege the deprivation of their rights "to property, due process of law and equal protection under the law," Amended Complaint at ¶ 101, because the named defendants "have adopted and are presently pursuing a policy, practice, custom and usage of depriving and continuing to deprive, plaintiffs of the right to decent, safe and sanitary housing by allowing in the past, and continuing to allow, the presence of lead-based paint in the HUD-assisted housing in the City of Philadelphia." Amended Complaint at ¶ 99. Plaintiffs assert Count I against City and Federal Defendants and seek substantial compensatory damages. Amended Complaint at ¶ 102.
In Count II plaintiffs seek injunctive relief against City and Federal Defendants based upon the same allegations set forth in Count I. Specifically, plaintiffs ask that this court require defendants to inspect PHA units for lead-based paint, abate where necessary, educate PHA residents as to the ill effects of lead-based paint, diagnose residents for potential lead-exposure health problems, and treat residents for these health problems.
Counts V-VIII also allege violations of § 1983, not because plaintiffs have been deprived of constitutional rights, as in Counts I-II, but because they were and are being deprived of independent federal statutory rights. In Count V and VI plaintiffs allege that City and Federal Defendants have failed to provide safe, sanitary, and affordable housing and have thereby deprived them of their rights under the United States Housing Act of 1937 ("USHA"), 42 U.S.C. §§ 1437 et seq. ("§§ 1437 et seq."). The stated goal of the USHA, as set forth in § 1437, is to "remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of lower income." HUD tries to achieve this goal primarily through the provision of financial support to local public housing authorities, who are then given responsibility to administer public housing programs. Based on alleged violations of §§ 1437 et seq. and its implementing regulations, plaintiffs seek compensatory damages (Count V) and injunctive relief (Count VI).6
In Counts VII-VIII plaintiffs press further claims under § 1983 by alleging that City and Federal Defendants have deprived plaintiffs of rights which they hold under the Lead-Based Paint Poisoning Prevention Act ("LPPPA"), 42 U.S.C. §§ 4821-4846. Congress passed the LPPPA in 1971 in an effort to combat the presence of lead-based paint in housing connected with HUD-assisted programs. § 4822. Plaintiffs allege that the past and continuing presence of such paint in their residences violates the provisions of, and their rights under, the LPPPA. Again, plaintiffs sue for compensatory damages (Count VII) and injunctive relief (Count VIII).
Counts IX-XI also allege violations of federal statutes, but are not brought under § 1983. Rather, plaintiffs argue that they have direct, private rights of action...
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