The Chester County Court of Common Pleas Tuesday dismissed the lawsuit filed by Developer Brian O’Neill, along with his corporate counterparts O’Neill Developers and Constitution Drive Partners, seeking to silence opposition to redevelopment of a brownfield site located in Chester County.

Saying “This is what we call constitutionally protected free speech under the First Amendment of the United States Constitution and the Pennsylvania Constitution” and that “…DRN [Delaware RiverKeeper Network] is immune from Plaintiff’s tort claims,” the court dismissed the case.

The Delaware Riverkeeper Network organization has been actively challenging a proposal by O’Neill, O’Neill Developers and Constitution Drive Partners to initiate partial cleanup of the highly contaminated Bishop Tube site located in East Whiteland Township in order to accommodate construction of a more than 200 unit housing development.

O’Neill sought a judgement that they pay over $50,000 in damages. The suit also threatened to target up to ten additional residents, naming them as defendants to the suit, in addition to the resident already included as a named defendant.

“Mr. O’Neill should be ashamed of himself for misusing the law to threaten people into silence and seeking a judgment that would strip them of their First Amendment rights to free speech and to petition their government for appropriate action,” said Maya van Rossum, head of the Delaware Riverkeeper Network. “I am gratified that the court so quickly recognized the abuse of law that was being perpetrated by Mr. O’Neill and that it sought to render a strong decision quickly in order to assuage the fears of residents being so directly threatened by the developer and his multiple corporate entities.”

Ms. van Rossum and the Delaware Riverkeeper Network were represented by attorneys Mark L. Freed and Jordan B. Yeager of Curtin & Heefner LLP. “We’re pleased that the Court has vindicated the constitutional rights of residents to speak up and advocate for a healthy environment without fear of retribution,” said Freed.

The original action was filed by O’Neill and his counterparts on June 27 and claimed the advocacy activities of van Rossum and her organization resulted in defamation/commercial disparagement, interference with contractual or business relations and amounted to a civil conspiracy.

In dismissing the case, Judge J. Sommers wrote:  “DRN has the right to petition its local and state governments as advocates for environmental safety and public health. This is true even if it means that DRN’s efforts are adverse to Plaintiff. This is what we call constitutionally protected free speech under the First Amendment of the United States Constitution and the Pennsylvania Constitution.” (emphasis added)

The Judge also said, “…we conclude that DRN’s concern for the proposed remediation plan and soil clean up is not an objectively baseless concern. Plaintiff has conceded that ‘chlorinated solvent contamination … remains today in Site soils and groundwater’ and that ‘contamination in groundwater has migrated significant distances beyond the boundaries of the Site’ to the surrounding community. … Moreover, Plaintiff has made clear it does not intend to conduct full clean up of the site, but only a partial one, based upon its belief that it has no legal obligation to do more.” (emphasis added)

The Judge concluded, “…we have, therefore, determined that the conducted described in the Complaint is protected … and DRN is immune from Plaintiff’s tort claims.” (emphasis added)

The Delaware Riverkeeper Network and members of the East Whiteland community were joined by Sen. Andy Dinniman (D-Chester) and a representative from Sen. Daylin Leach (D-Montgomery) at a press conference on July 26, expressing opposition to the originally filed lawsuit.

“Pennsylvanians have a Constitutionally protected right to clean air, pure water, and the preservation of the natural environment. Citizens also have a right to voice their opinions, views, and concerns on decisions regarding our public natural resources and to be involved in the processes be they at the local, state or federal levels. The bottom line is Chester County has a long history of standing up for our environmental resources and to stand up, we need to speak out,” said Sen. Andy Dinniman in a statement released as part of the July press event.

“Lawsuits have an important purpose, but when they are wielded as a bludgeon by wealthy interests to silence advocates and communities, they harm the principles that form the foundation of our country,” said Sen. Daylin Leach in a statement also issued for the July press event. “Free speech is a right held by all Americans – wealthy or not—and it’s our job to protect it.”

The Bishop Tube Site is a former metals processing plant located in East Whiteland Township, PA. The site is bordered by Little Valley Creek, a tributary to the “Exceptional Value” Valley Creek. Portions of the site proposed for development are wooded.

The site is listed on the Pennsylvania Priority List of Hazardous Sites for Remedial Response under the Pennsylvania Hazardous Sites Cleanup Act. Groundwater, soil and surface water at the Site are contaminated with trichloroethylene (TCE), which is classified as a probable human carcinogen by the EPA and also as causing other significant health problems. Other contaminants of significant concern are also known to be present at the site.

Click Here for a copy of the Court’s decision.  Click Here for a copy of DRN’s intent to file a citizen suit.

For more information, visit the Delaware RiverKeeper Network website.

NewsClips:

Judge Throws Out Developer’s SLAPP Suit Against Environmental Group

SLAPP Lawsuit Against Delaware RiverKeeper Dismissed

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Meyer: Senate Bill Would Force Convicted Protesters To Pay Response Costs

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[Posted: August 23, 2017]

8/28/2017