A Chester County court Monday issued an opinion reaffirming its August 22 decision to dismiss a lawsuit filed by developer Brian O’Neill, his corporate counterparts Constitution Drive Partners and O’Neill Developers against Maya van Rossum and the Delaware Riverkeeper Network.

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

O’Neill’s original suit sought a judgement that would both silence the organization and mandate they pay over $50,000 in damages. The lawsuit also named one citizen and listed up to ten unnamed citizens as current and/or potential targets of the suit.

On August 22, 2017, the Chester County Court of Common Pleas dismissed this lawsuit against DRN stating, “This is what we call constitutionally protected free speech under the First Amendment of the United States Constitution and the Pennsylvania Constitution.” O’Neill filed an appeal of the decision that same day.

On October 23, 2017 the court responded to the appeal, issuing an opinion supporting the August 22 decision. In the course of affirming its original decision, Judge Sommers stated that complaints filed against DRN “lack merit.”

The court also questioned the complaint itself, saying “While we question the ‘good faith’ of Appellants in bringing the instant lawsuit and subsequent appeal, we will address the complaints,...”

The opinion also stated that Mr. O’Neill et al had “commenced this action as a means of intimidation and harassment, not because Appellants believe in the success of their claims.”

DRN has been working closely with the East Whiteland Township community on this issue and has written letters, commented at township meetings, and held open public presentations about the site.

The court’s opinion states that DRN had merely “exercised their right of free speech under the First Amendment of the United States Constitution to petition their government,...” The court also recognized that DRN and community advocates were “concerned about the spreading of contaminated soil and groundwater throughout the community” and that the assertions made in fliers and on the DRN website are true, and as such the activities undertaken are protected under various elements of law.

“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, the Delaware Riverkeeper and leader of the Delaware Riverkeeper Network.

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,” Freed said about the original August 22nd dismissal.

The original action was filed by O’Neill and his counterparts on June 27, 2017 and claimed the advocacy activities of DRN resulted in defamation/commercial disparagement, interference with contractual or business relations and amounted to a civil conspiracy.

The Delaware Riverkeeper Network and members of the East Whiteland community held a press conference on Wednesday, July 26, expressing their opposition to the lawsuit. Senators Andy Dinniman and Daylin Leach released statements supporting DRN and the community at that event.

“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 (D-Chester) in a statement released at 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 (D-Montgomery) 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 stream designated under state law as “Exceptional Value.”

The Bishop Tube 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.

TCE and other contaminants of significant concern known to be present at the site continue to migrate into the aquifer, stream and nearby residential area. The DEP has still not published any final remediation plans for the Site.

Click Here to read the opinion (after the release in this file).

[Posted: Oct. 24, 2017]

10/30/2017