Sherwin-Williams wins precedential, en banc decision dismissing public nuisance claims involving 300,000 private properties
Client(s) Sherwin-Williams Company, The
Jones Day client The Sherwin-Williams Company won dismissal of claims filed by two Pennsylvania counties alleging that former manufacturers of lead paint and pigments should be ordered to abate lead paint in all the pre-1978 homes within their jurisdictions. In 2018, two Pennsylvania counties retained private outside counsel and filed separate public-nuisance actions against Sherwin-Williams and other former manufacturers of lead-based paints and pigments. The counties sought a declaratory judgment that lead paint constitutes a common law public nuisance under Restatement-based principles and under a novel interpretation of Pennsylvania's Lead Certification Act, a statute that includes legislative findings related to the hazards of environmental sources of potential lead exposure. The counties sought an order requiring the defendants to abate lead paint in more than 300,000 private properties in total. The trial courts in both cases rejected the defendants' arguments to dismiss at the pleading stage. Defendants then successfully obtained permission to pursue an interlocutory appeal to the Commonwealth Court, an intermediate court of appeal. In a precedential, en banc an opinion issued on May 5, 2023, the Commonwealth Court unanimously reversed the trial courts and ordered that both cases be dismissed on the pleadings, adopting Sherwin-Williams' arguments wholesale. The court held: (1) the alleged presence of lead paint in private residences cannot be a public nuisance under Pennsylvania common law because no "public right" is implicated; (2) because the counties' public-nuisance theory was "a veiled products liability claim," the claim also was subject to tort standards of causation; (3) the counties cannot plead causation without identifying the manufacturer of the paint in each of the residences at issue; (4) the counties cannot use a request for declaratory relief to advance novel theories of liability; (5) mandatory joinder rules require the counties to join all owners of the private properties at issue; and (6) the Lead Certification Act did not explicitly or implicitly declare a public nuisance simply by noting general environmental hazards from deteriorated lead paint.
County of Montgomery v. The Sherwin-Williams Company et al., No. 1338 CD 2021 (Pa. Commw. Ct.); County of Lehigh v. The Sherwin-Williams Company et al., No. 1260 CD 2021 (Pa. Commw. Ct.)