Daily Local News (West Chester, PA)
Lawsuit denied concerning Bishop Tube site
EAST WHITELAND » The Pennsylvania Superior Court dismissed the continued attempt by Bishop Tube Developer Brian O’Neill, along with his corporate counterparts O’Neill Developers and Constitution Drive Partners, to silence the Delaware Riverkeeper Network.
The Riverkeeper has fought to build a park at the brownfield site.
The Sept. 6 dismissal was rendered by Judge Bender and Judge Lazarus of the Pennsylvania Superior Court.
“The lawsuit filed by Brian O’Neill and his counterparts was a clear effort to silence, through intimidation, myself, my organization and the residents opposed to his proposed partial clean up and associated development plan; this is what is known as a SLAPP suit, a strategic lawsuit against public participation,” said Maya van Rossum, the Delaware Riverkeeper. “It is wrong for anyone, particularly a well-funded team
of lawyers, corporations and individuals to misuse our legal system to scare a community into silence.
“While we were confident that the judges would once again see through Mr. O’Neill’s false claims, bluster and fear tactics, it’s always nice when the decision finally comes down. If Mr. O’Neill appeals yet again, we will know that this is a clear and obvious strategy to try to drain the financial resources of a concerned nonprofit and private individuals.”
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 (HSCA). 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.
The Delaware Riverkeeper Network, led by van Rossum, the Delaware Riverkeeper, was also named as a defendant in the suit, and has been actively challenging a proposal by O’Neill, O’Neill Developers and Constitution Drive Partners for only a partial clean-up of the contaminated site known as Bishop Tube located in East Whiteland Township. O’Neill wants to build more than 200 homes at the site.
The original SLAPP action was filed by O’Neill on June 27, 2017 in the Court of Common Pleas in Chester County and claimed the advocacy activities of van Rossum and the Delaware Riverkeeper Network resulted in defamation/commercial disparagement, interference with contractual or business relations and amounted to a civil conspiracy.
O’Neill sought a judgement that would both silence the organization and mandate they pay over $50,000 in damages. The suit also threatened to target up to 10 additional residents, naming them as defendants to the suit, in addition to a resident already included as a named defendant.
Judge J. Sommers, presiding over the case at the Court of Common Pleas, dismissed the suit on Aug. 22, 2017, determining that van Rossum and the Delaware Riverkeeper Network were engaged in “constitutionally protected free speech under the First Amendment of the United States Constitution and the Pennsylvania Constitution” and that the defendants are “immune from plaintiff’s tort claims.”
O’Neill and his counterparts immediately appealed the decision. Judge Sommers issued a followup opinion in which the judge stated that the complaints filed against DRN “lack merit.”
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.”
In its decision issued Sept. 6 dismissing the O’Neill appeal, the Pennsylvania Superior Court did not agree with O’Neill et al that there were any procedural problems with the lower court ruling that would require its decision be overturned.
Substantively, the Superior Court judges also found no grounds to overturn the Court of Common Pleas.
Van Rossum, the Delaware Riverkeeper said: “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. The Delaware Riverkeeper Network and the residents we are working with in East Whiteland are standing up for protection of our environment, our families and our communities.
“Nobody’s rights to make a profit should reign supreme, regardless of the harm it inflicts on the environment, on peoples’ health, on public safety, peoples’ property rights and the First Amendment right to free speech.
“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.”
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.