O'Neal v. Department of the Army of the United States

742 A.2d 1095, 1999 Pa. Super. 298, 1999 Pa. Super. LEXIS 4069
CourtSuperior Court of Pennsylvania
DecidedDecember 3, 1999
StatusPublished
Cited by1 cases

This text of 742 A.2d 1095 (O'Neal v. Department of the Army of the United States) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Neal v. Department of the Army of the United States, 742 A.2d 1095, 1999 Pa. Super. 298, 1999 Pa. Super. LEXIS 4069 (Pa. Ct. App. 1999).

Opinion

CAVANAUGH, J.:

¶ 1 This is a lawsuit by users of a tract of land and consumers of well water which was contaminated by the conduct of appel-lees Department of Army, et. al. The suit seeks medical monitoring in aid of protecting against disease or other physical disorder which might be suffered as a result of exposure to the contamination. The litigation has taken a tortuous path through our state and federal courts for almost a decade. The most recent appellate pronouncement was in the form of a decision by our Supreme Court.1 Therein, the court remanded the matter to the trial court after deciding; A) that the plaintiffs had made out a prima facie case for special medical monitoring under the Pennsylvania Hazardous Sites Cleanup Act (H.S.C.A.), 35 P.S. § 6020.101 et seq., sufficient to survive a motion for summary judgment; B) the recovery of attorney fees is not prohibited under H.S.C.A. and is, therefore, permissible. Coincidentally, the court reserved for decision an issue of sovereign immunity “for the trial court’s disposition of this case on remand.”

¶ 2 On remand, the trial court denied defendants’ motion for summary judgment, but on reconsideration, granted it in part and denied it in part. The defendants then moved for dismissal on the issue of lack of subject matter jurisdiction. The court granted this motion and dismissed. This order is the subject of the present appeal.

Discussion

¶3 We start with the proposition that appellants, having brought suit against government agencies (Department of Army, Department of Defense) for damages and injunctive relief, have brought an action against the United States. Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).

¶ 4 Given that the United States must be considered as the defendant in this action, we proceed to the principle that the United States enjoys sovereign immunity and may not be sued without its consent. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Kansas v. United States, 204 U.S. 331, 27 S.Ct. 388, 51 L.Ed. 510 (1907). As a corollary to its right of immunity, it [1099]*1099follows that the sovereign may waive its privilege through the instrumentality of the United States Congress and when waiver is granted, the statutory language is to be conservatively construed. U.S. v. Sherwood, supra. “The matter is not one of procedure, but of jurisdiction whose limits are marked by the Government’s consent to be sued.” Id. at 591, 61 S.Ct. 767. More recently, the Supreme Court has instructed that courts must construe ambiguities in favor of immunity and that lack of clearly expressive waiver may not be interpreted as an intent to subject the Federal Government to damages. Lane v. Pena, 518 U.S. 187, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). When a waiver of immunity is enacted, any limitation on the choice of forum for pursuit of the litigation must be strictly construed. United States v. Nordic Village, Inc., 503 U.S. 30, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992); Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235 (1939); United States v. Sherwood, supra; Mississippi v. Louisiana, 506 U.S. 73, 113 S.Ct. 549, 121 L.Ed.2d 466 (1992).

¶ 5 Presently, the waiver of governmental immunity for environmental contamination responsibility exists, if at all, under the terms of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq. (CERCLA). The CERCLA statute provides for limited jurisdiction in the federal district courts for all controversies arising under its aegis (with limited exceptions not here applicable):

42 U.S.C. § 9613

(b) Jurisdiction; venue
Except as provided in subsections (a)
and (h) of this section, the United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter,2 without regard to the citizenship of the parties or the amount in controversy. Venue shall lie in any district in which the release or damages occurred, or in which the defendant resides, may be found, or has his principal office. For the purposes of this section, the Fund shall reside in the District of Columbia.

¶ 6 Thus, we have a claim against the United States; pursuit of the claim is dependent on waiver of sovereign immunity; the waiver is provided in CERCLA; and CERCLA requires that the controversy be jurisdictionally limited to the federal court. Therefore, the trial court properly dismissed the suit.

APPELLANTS’ CLAIMS

¶ 7 The present issue is complicated by the fact that appellants are presently pursuing relief by way of medical monitoring under provisions of state law. Indeed, our Supreme Court interpreted the H.S.C.A.3 in a manner favorable to appellants’ contentions before remanding the case to the York County Court for further proceedings. The Court’s interpretation of the Pennsylvania law, H.S.C.A, was germane in two respects; 1) CERCLA incorporates state laws concerning removal and remediation in its scope of environmental standards for enforcement, 42 U.S.C. § 9620(a)(4), and; 2) as noted by our Supreme Court, “when a state Supreme Court has not spoken on an issue, the federal court must predict how the state court would resolve the issue.” Redland Soccer, 696 A.2d at 143. Here, of course, the decision represents the actual view of our highest court.

¶ 8 Appellants argue that the provision of CERCLA, which incorporates states’ environmental laws as part of its [1100]*1100enforcement responsibilities, acts as a con-gressionally enacted waiver of immunity with respect to claims (such as this) arising under state environmental laws. Thus, it is argued, this is a consent to be sued in state court. It is further argued that the CERCLA federal district court exclusivity provision relates only to CERCLA claims under other CERCLA provisions — but not to claims founded on state law such as instantly.

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O'Neal v. Department of Army of US
742 A.2d 1095 (Superior Court of Pennsylvania, 1999)

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Bluebook (online)
742 A.2d 1095, 1999 Pa. Super. 298, 1999 Pa. Super. LEXIS 4069, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oneal-v-department-of-the-army-of-the-united-states-pasuperct-1999.