Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 STEVE HARVEY LAW LLC By: Stephen G. Harvey Michael E. Gehring PA ID Nos. 58233 and 57224 1880 John F. Kennedy Blvd. Suite 1715 Philadelphia, PA 19103 (215) 438-6600 steve@steveharveylaw.com mike@steveharveylaw.com Attorneys for Plaintiff David W. Anspach III _____________________________________ DAVID W. ANSPACH, III 609 Joanna Road Morgantown, PA 19543 Plaintiff, v. SUNOCO PIPELINE, L.P. 535 Fritztown Road Sinking Springs, PA 19608 Defendant. _____________________________________ : : : : : : : : : : : : : : COURT OF COMMON PLEAS BERKS COUNTY, PENNSYLVANIA VERIFIED COMPLAINT CIVIL ACTION CASE NO. _______________ JURY TRIAL DEMANDED SUMMARY OF THE CASE 1. This action arises out of contamination of Plaintiff David Anspach’s well, which supplied all water, including drinking water, for Plaintiff’s home in Caernavon Township, Morgantown, Pennsylvania. This contamination was the direct result of the actions and inactions of Defendant Sunoco Pipeline, L.P., in connection with its construction of the Mariner East II Pipeline. 2. During the pipeline construction process, Defendant’s activities related to horizontal directional drilling (“HDD”) on or adjacent to Plaintiff’s property caused Plaintiff’s well water to become contaminated with highly dangerous fecal coliform and e. coli bacteria. This rendered Plaintiff’s well water Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 dangerous and unsafe to drink. Because he was initially unaware of the contamination, Plaintiff continued to drink well water after it had become contaminated. As a result, Plaintiff developed severe gastrointestinal distress, including passing significant amounts of blood in his bowel movements. Plaintiff was required to undergo a colonoscopy, which confirmed that Plaintiff had developed colitis shortly after drinking the contaminated water. 3. In addition to the physical and medical harm caused to Plaintiff by Defendant’s HDD activities, Plaintiff’s HDD activities caused Plaintiff’s well water to become undrinkable, which led to great inconvenience, emotional distress and anxiety, and diminished property value. It also left him in the precarious situation of not having access to clean well water for his home since July 2017 and having to rely on Defendant to supply a “water buffalo” container attached to his home, with water periodically trucked in to fill it. The water buffalo must be heated at a cost to Plaintiff, supplies water not of the same consistent quality as Plaintiff’s well water, and presents its own risk of contamination. 4. Defendant is strictly liable for the harm it caused, as HDD is an abnormally dangerous activity insofar as it relates to the risk of contaminating nearby water supplies. 2 5. In any event, Defendant knew, or should have known of the great potential for contamination of well water that would be caused by its highly invasive drilling activities. It should have taken reasonable steps to prevent the contamination or, at the least, ameliorate its effects, including engaging in Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 proactive testing of Plaintiff’s well, and warning him, as Defendant has since admitted, that persons with private wells adjacent to the drilling operations such as Plaintiff should not have consumed or used well water during the drilling process. 6. The harm caused to Plaintiff is the direct result of Defendant’s HDD activities, which violated Plaintiff’s rights under Pennsylvania law, including the Clean Streams Law. Through this action, Plaintiff seeks an order enjoining Defendant from further violating Plaintiff’s rights and causing Plaintiff further harm, and requiring Defendant to pay for the fees and costs of Plaintiff’s expert hydrogeologist as well as the fees and costs of counsel and other expert witnesses. Plaintiff also seek an award of compensatory damages for the harm caused as well as punitive damages to punish and deter future violations of law. On his claim for compensatory and punitive damages, Plaintiff seeks a jury trial. THE PARTIES 7. Plaintiff David W. Anspach III is a resident of Caernavon Township in Berks County, and lives at 609 Joanna Road, Morgantown PA 19543. 8. Defendant Sunoco Pipeline, L.P, is a foreign limited partnership registered to do business in Pennsylvania with a regional office located at 535 Fritztown Road, Sinking Springs, PA 19608. 3 VENUE 9. Venue in this case is proper in the Court of Common Pleas of Berks County, Pennsylvania because that is where Plaintiff resides, Defendant’s conduct occurred, and a substantial portion of the events at issue took place. Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 FACTUAL ALLEGATIONS Background 10. Plaintiff served in the United States Marine Corps from 2000 to 2008. He was deployed in a combat zone, Fallujah, Iraq, for part of that time. 11. Upon completion of his service in the Marine Corps, Plaintiff was diagnosed with hypervigilance syndrome. This made it advisable for him to live in a quiet, secluded location, as being in heavily populated areas exacerbated his symptoms. For this purpose, Plaintiff chose to live at his property on Joanna Road in Caernavon Township, which was left to him by his grandfather. 12. Plaintiff’s property consists of 3.53 acres of land, primarily forested, situated in a quiet, rural part of Berks County. It overlooks a valley and the neighboring East Branch of the Conestoga River. 13. Plaintiff built a house on that property. 14. On or about August 15, 2012, a 240-foot private drinking water well was drilled on the property to provide drinking and household water to the house and property. 15. In order to satisfy a township requirement that proof of a potable water supply be provided, Plaintiff’s well water was tested for e. coli and 4 fecal coliform bacteria. The 2012 water test results showed the absence of both e. coli and total coliforms. From then until July 2017, Plaintiff used the well water for drinking, cooking, washing dishes, showering, and other everyday uses. 16. Up until the summer of 2017, when Defendant commenced its Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 drilling activities, Plaintiff never had any problem with his well or the water from it. It was only when Defendant began HDD operations that the well became contaminated. Mariner East II Pipeline Construction 17. In or around early 2015, Defendant began securing right of ways for the purpose of constructing and installing the Mariner East II (“ME-II”) pipeline which extends through Berks County, where Plaintiff resides. The ME-II pipeline is intended to transport natural gas liquids, specifically propane and ethane, that are byproducts of hydraulic fracturing (commonly known as “fracking,” a process by which natural gas and oil is recovered from deep beneath the Earth’s surface) from processing and fracking operations in Ohio, West Virginia, and Western Pennsylvania to Defendant’s Marcus Hook Industrial Complex in Delaware County, Pennsylvania. At that facility, the natural gas liquids are further processed, stored, and ultimately shipped outside of the United States. The ME-II pipeline is an expansion of the existing Sunoco Mariner East pipeline system. The ME-II pipeline, when completed, will go through 17 different counties in southeastern Pennsylvania. See http://files.dep.state.pa.us/ProgramIntegration/PA%20Pipeline% 20Portal/MarinerEastII/PPP%20Information%20Sheet1.pdf. 5 18. Defendant at all times intended to perform the drilling required for the construction of the ME-II pipeline system using a highly disruptive and invasive method, i.e., HDD. 19. HDD is designed to allow significant sections of the pipeline to Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 be sunk underground, without breaking the surface except at the point of insertion. HDD uses high pressure water, mud, and chemicals to break up rock formations and soil, allowing the pipeline to be snaked through the resulting opening. 20. HDD is a brute strength process that can, and often does, cause major structural changes and damage to the underground soil and rock in which the drilling takes place. For instance, HDD can result in the connection of underground water sources that were previously unconnected. HDD can also provide biological contaminants in the soil, as well as those occurring in drilling mud, a pathway and delivery mechanism to enter and spread into groundwater and wells. As a result of its destructive qualities, HDD is also highly susceptible to spills, known as inadvertent returns, in which lubricating mud erupts through weak spots in the rock during boring. 21. On or about January 9, 2015, Plaintiff gave Defendant a permanent easement to construct, operate, and maintain two pipes on his property related to the ME-II pipeline. Plaintiff also gave Defendant a temporary construction easement adjacent to the permanent easement. 22. Defendant was required to seek both federal and state approval for the ME-II pipeline. In February 2017, Defendant was issued a Commonwealth of 6 Pennsylvania permit for construction of approximately 9 miles of ME-II. Special Conditions from the Pennsylvania Department of Environmental Protection (“DEP”) were attached to the permit. 23. Among the conditions were (a) that Defendant provide at least Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 72 hours’ notice in advance of beginning any construction activities to any public or private water supplies that could “be affected by increased turbidity or other water quality changes caused by the permittee’s construction activities”; and (b) if the pipeline construction causes adverse impacts to public or private water supply sources, Defendant was required to “immediately” notify DEP and implement a contingency plan “to the satisfaction of the public and private water supply owners that addresses all adverse impacts imposed on the public and private water supply . . . .” (emphasis added). Thus, Defendant was on clear notice that its construction could negatively impact private water supplies, including wells, and that it would be responsible for remediating “all” adverse impacts caused by its underground drilling activities. 24. To install the ME-II pipeline, Defendant began HDD drilling operations on or near Plaintiff’s property on or about July 1, 2017. Prior to that time, commencing in May 2017, surveyors marked the right of way (“ROW”) for the pipeline, and by early June trees and vegetation had been cleared and land leveled for installation of the pipeline. 25. The well on Plaintiff’s property was located less than 400 feet from the drilling site. 7 Plaintiff’s Sickness Caused by Defendant’s HDD Activities 26. On or about July 17, 2017, Plaintiff began to suffer from severe gastrointestinal distress. He had frequent urges to go to the bathroom, and excessive gas expulsion, but with little passage of waste materials. He was unaware Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 of the cause of his distress and hoped that it would pass. His distress continued and worsened for several weeks and eventually required medical care. 27. On or about August 10, 2017, while suffering from his illness, Plaintiff learned in a local newspaper article of well water contamination issues with the pipeline. He called Defendant’s designated “ROW agent,” Scarlett Jackson of Percheron LLC, to discuss water testing for his well. 28. On or about August 14, 2017, representatives of a third-party water testing company acting on behalf of Defendant came to Plaintiff’s property and drew several water samples from the well for testing. 29. On or about August 16, 2017, Plaintiff, who is in the wastewater treatment industry and is a DEP-certified water treatment plant operator, drew his own water samples from the well and ran the 24-hour fecal coliform indicator test. 30. The next day, August 17, 2017, Plaintiff received the results from his well water sample. Plaintiff’s test results revealed a high concentration of fecal coliform and e. coli bacteria contamination. 31. E. coli and fecal coliform are virtually never found in a well unless the well has been contaminated by an outside source. 8 32. Upon receiving the test results, Plaintiff immediately notified his ROW agent and inquired about Defendant’s test results. 33. Plaintiff was told the Defendant’s test results were not yet 34. Plaintiff ceased using the well water for drinking upon receipt of Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 available. Plaintiff’s test results but did use it to cook when the water could be boiled and used it to shower. Plaintiff purchased bottled water for drinking. 35. Plaintiff continued to suffer from severe gastrointestinal distress, including passing significant amounts of blood in his bowel movements, for approximately a month. 36. On or about August 24, 2017, Plaintiff was examined by his doctor, who immediately scheduled a colonoscopy for Plaintiff. The colonoscopy, which was bothersome and unpleasant, confirmed the diagnosis as colitis with some acute colitis. Plaintiff’s doctor noted that stool samples taken before the colonoscopy tested positive for e. coli. Colitis has the potential to be a lifelong affliction that may be manageable with medication and diet restrictions. 37. On or about August 24, 2017, Plaintiff ran another test of his well water and the test again confirmed the presence of fecal coliform and e. coli. 38. On or about August 25, 2017, Plaintiff again contacted his ROW agent to obtain Defendant’s results from its testing of his well water. 9 39. Plaintiff’s ROW agent again told him the results were unavailable. This was incorrect; in fact, the results were available and could have been provided to Plaintiff ten days earlier. 40. Plaintiff again contacted his ROW agent on or about September Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 14, 2017, and was told—wrongly again—that the results were still unavailable. 41. On or about September 14, 2017, Plaintiff had his well water tested by an independent company. The results indicated the water was still contaminated with e. coli and fecal coliform. 42. On or about September 21, 2017, Plaintiff learned from his ROW agent that Defendant’s well water test results had been “accidentally left on someone’s desk and had not been forwarded appropriately.” 43. On or about September 30, 2017, Plaintiff received a hand delivered copy of Defendant’s initial well water test results dated August 15, 2017. 44. The results indicated that Plaintiff’s well water was contaminated with a high concentration of fecal coliform and e. coli bacteria. The test results indicated that the e. coli load was 727 col/100mL, and that the total fecal coliform load was 2420 MPN/100 ml/. Under applicable federal regulations, the Maximum Containment Level for safe drinking water is zero for both contaminants. 45. The results were available one day after the initial tests were taken (August 14, 2017) but, remarkably, Defendant failed to provide Plaintiff the test results showing that his well water was severely contaminated until on or about September 30, 2017, more than a month later. 10 46. Drilling on Plaintiff’s property stopped at least temporarily on or about July 25, 2017. 47. On or about July 25, 2017, the Environmental Hearing Board shut down the drilling throughout the entire ME-II project due to multiple Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 violations regarding drilling and multiple reports of contaminated well water. Defendant’s drilling activities had contaminated 15 private wells in Chester County, Pennsylvania, which forced the families to evacuate their homes and damaged their wells. Defendant’s HDD had broken through the aquifer and disrupted the flow of clean drinking water for the impacted families. The residents lost drinking water and some households permanently lost access to private well water. Defendant’s Refusal to Acknowledge the Harm It Caused 48. Plaintiff filed a complaint with DEP on or about September 29, 2017, and reported the results from Defendant’s testing. 49. Plaintiff filed a second complaint on the DEP website on or about October 3, 2017. 50. On or about October 8, 2017, Plaintiff submitted written comments to the DEP about the ME-II pipeline and the problems he had been facing with his well water contamination. 51. A DEP representative, Andrea Blosser, contacted Plaintiff and told him DEP would communicate with Defendant about the well water contamination. 11 52. On or about October 19, 2017, Defendant conducted a second test of Plaintiff’s well water and, with the passage of time since drilling had ceased, the results indicated decreased levels of bacteriological contamination. However, the results indicated that e. coli and fecal coliform were still present in Plaintiff’s Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 well water at unsafe and unacceptable levels. 53. On or about October 27, 2017, Plaintiff contacted the DEP and said he had not yet heard back from Defendant regarding the well pollution. The DEP stated it was surprised that he had not heard from Defendant and it would follow up again. 54. On or about November 6, 2017, Defendant provided Plaintiff with test results from the second test it drew on or about October 19, 2017. The results confirmed the water was still contaminated. 55. On or about November 7, 2017, Plaintiff received a voicemail from Andrea Blosser who stated that the DEP “did conduct our own investigation into” Plaintiff’s well contamination and was unable to “definitively attribute” the well contamination to Defendant’s HDD operations. 56. Plaintiff emailed the DEP on or about November 7, 2017, and requested documentation supporting its conclusion that Defendant’s HDD did not cause the contamination of his well water. Despite multiple requests, Plaintiff never received any written “investigation” report or materials prepared by DEP. Indeed, DEP later admitted in an affidavit that it “did not independently generate or create any investigatory records in the course of evaluating Mr. Anspach’s complaint 12 alleging contamination of his well by Sunoco Pipeline LP.” A report by DEP employee Mark Sigouin was created well after the fact, in February 2018, and was not disclosed until March 2018. 57. The DEP never requested access to Plaintiff’s land or water Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 supply to perform any testing or investigation. Further, to Plaintiff’s knowledge, the DEP has never visited Plaintiff’s property and has never conducted an investigation or testing related to Plaintiff’s well water contamination. Instead, it merely deferred to Defendant’s own conclusion that its HDD activities did not contaminate Plaintiff’s well. 58. On or about November 7, 2017, Plaintiff texted his ROW agent to let her know the well water was still contaminated. She offered to provide him with a water buffalo, which is a large (several hundred gallon) tank that supplies a temporary source of drinking water and must be periodically refilled with water. 59. Plaintiff responded via text message that he had concerns about how the water buffalo would connect to the house and how it would remain uncontaminated. His questions were not answered. 60. On or about December 14, 2017, Defendant sent Plaintiff a letter stating it was not responsible for Plaintiff’s well water contamination and, on that basis, that it was refusing to supply Plaintiff with a temporary or permanent source of drinking water. The letter further stated, purportedly based on the work of an unnamed geologist, that Plaintiff’s free-range chickens and turkey were the source 13 of the well water contamination. A true and correct copy of the letter is attached as Exhibit A. 61. This speculation was clearly implausible, unsupported, and failed to account for the timing of onset of contamination in relation to the Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 Defendants’ HDD activities. The wellhead on Plaintiff’s property, the only location where anything could be dropped into the well, is surrounded by a planter and covered with wire mesh fencing, and no animals are able to access the wellhead. Moreover, Plaintiff had had poultry on his property since 2014 and yet had never experienced any problems with his water supply until July 2017, i.e., at the time that Defendant commenced drilling adjacent to his well. It is therefore clear that the mere presence of poultry on Plaintiff’s property did not cause the contamination of Plaintiff’s well and that Defendant’s HDD operations—which coincided exactly with the time period when the well was found to be contaminated—was the cause of the contamination. 62. Defendant’s letter of December 14, 2017, stated that “[Defendant] also engaged a Professional Geologist to evaluate your complaint.” Defendant has never provided Plaintiff with a copy of a report of any professional geologist engaged by Defendant. Subsequent Events 63. On or about January 10, 2018, Plaintiff’s counsel, Steve Harvey, Esq., sent a letter to the DEP asking the DEP to exercise its authority under the Pennsylvania Clean Streams Law and the Environmental Rights Amendment of the 14 Pennsylvania Constitution to require Defendant to remediate the harm it caused and prevent it from causing further harm to Plaintiff’s well water. A true and correct copy of the letter is attached as Exhibit B. A copy of the letter was sent to Sunoco. Neither the DEP nor Sunoco ever responded to the letter. Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 64. Plaintiff tested his water on or about January 11, 2018, approximately six months from the time drilling ceased, and the results—after a lengthy period of time in which no drilling had been performed—revealed no evidence of contamination in the water. 65. On or about February 8, 2018, Defendant sent Plaintiff a letter offering Plaintiff the chance for his home to be “connected to an alternative temporary water supply, such as a water buffalo, that will be installed and maintained at [Defendant’s] expense for the entire period of HDD operations.” A true and correct copy of the letter is attached as Exhibit C. 66. In a subsequent letter dated March 2, 2018, Defendant’s counsel clarified that Defendant had offered the temporary water supply only because DEP ordered it to do so, for all wells within 450 feet of HDD activities. A true and correct copy is attached as Exhibit D. In the letter, Defendant’s counsel derided Plaintiff’s belief that Defendant’s HDD activities had caused contamination of his well as a “distorted ‘version’ of the events and circumstances that he claims caused the contamination of his private well . . . .” 67. Ultimately, after Defendant answered questions raised by Plaintiff about its offer to provide water to his home via a water buffalo, Plaintiff 15 agreed to accept the alternative temporary water supply provided by Defendant, in the form of a water buffalo that must be periodically filled with new water by Defendant or its agents. 68. Water buffalos are not an appropriate long-term solution for an Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 impacted private groundwater supply well. Water buffalos are replenished on occasion with hauled water, and, due to stagnation, the water is susceptible to warming and/or cooling depending upon the season. Other issues are the presence of a plastic taste, laundry issues, disruption of delivery due to weather conditions, and freezing of the water supply in cold weather. For these and other reasons, water buffalos are more appropriately used as a temporary solution, yet Plaintiff has had to use a water buffalo, rather than his own well water, for more than a year, with no end in sight. 69. The water buffalo must be heated and has increased the cost of electricity for Plaintiff. 70. Defendant said it would pay for the water buffalo heating costs, but it has yet pay that cost or make arrangements to pay that cost to Plaintiff. 71. Because of Defendants’ actions, Plaintiff has been unable to use his well water since July 2017. While Defendant has supplied him with water during most of this time, either bottled water or water from a water buffalo, the inability to use his well water has been extremely inconvenient and bothersome, as he has been forced to be vigilant in his efforts to ensure that he has clean water for 16 use at his home. This is separate from and in addition to the harm he suffered from getting sick from drinking contaminated water in 2017. 72. The alternative temporary water supply provided by Defendant has not been of the same consistently high quality as the water from Plaintiff’s well Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 before Defendant caused it to become contaminated. The water supplied by Defendant does not taste as good nor is it as consistently cold as his well water. The water buffalo provides water at room temperature, not the cooler well water that Plaintiff prefers. 73. The water buffalo presents its own risk of contamination. In late June 2019, Defendant’s agent swapped out the water buffalo at Plaintiff’s home because of trace amounts of fecal coliform and e. coli in the water buffalo. 74. Plaintiff has repeatedly requested copies of the weekly water testing performed by Elk Environmental, an agent acting for the Defendant, but Defendant has never provided the results of the weekly tests. 75. On or about March 17, 2018, Defendant re-commenced HDD activities on or adjacent to Plaintiff’s property. Water tests conducted after Defendant’s HDD operations re-commenced again confirmed the presence of fecal coliform and e. coli contamination in Plaintiff’s well water. Thus, the presence of e. coli and fecal coliform in Plaintiff’s well water coincided exactly with periods in which Defendant was engaged in HDD operations in close proximity to Plaintiff’s well. 17 76. In May 2018, responding to comments by DEP regarding a reevaluation report that Defendant had submitted to DEP regarding its HDD drilling activities, Defendant admitted that, while HDD drilling is taking place, residents with private wells in proximity to Defendant’s drilling should not use their Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 well water: “The best means to protect water well quality or quantity during the HDD is non-use . . . .” Defendant never told Plaintiff that he should not use his well water during HDD operations. This omission directly led to Plaintiff’s consuming of contaminated well water during Defendant’s summer 2017 HDD operations, which caused severe medical issues. 77. Because of the events alleged above, including Defendant’s refusal to acknowledge that its HDD activities caused or could have caused the contamination of his well water, Plaintiff was forced to undergo substantial personal expense to engage an expert hydrogeologist to study and prepare a report regarding the contamination of Plaintiff’s well. That report, which will be provided to Defendant, concludes that Defendant’s drilling and construction activities caused the bacteriological contamination of Plaintiff’s well water. 78. To date, Plaintiff still does not have use of his well water. 79. In late 2018, Defendant temporarily ceased HDD drilling activities on or adjacent to Plaintiff’s property, but is expected to re-commence such activities at some point in the reasonably near future, because it has only completed installation of one of two pipes that it intends to install. 18 Harm Caused by Defendants 80. In early 2019, in a quarterly earnings call with investors, Energy Transfer CEO Kelcy Warren admitted that Defendant had made “mistakes” with regard to its drilling activities in Pennsylvania. Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 81. Plaintiff believes that the contamination of his well water has diminished or possibly disappeared since the cessation of Defendant’s HDD activities and that over time it will continue to diminish until it ceases, absent further disruption by Defendant’s HDD activities. If Defendant re-commences its HDD activities, the contamination of Plaintiff’s well water will likely re-commence and the prospect of diminishing such contamination will be postponed or negated. 82. Plaintiff has been harmed by Defendant’s actions and omissions in multiple ways: a. Defendant’s action caused Plaintiff to become physically ill with colitis in July and August 2017, resulting in the need for a colonoscopy; b. Defendant’s actions have deprived Plaintiff of the use of his well water from July 2017 to present; c. Defendant’s actions have caused Plaintiff annoyance, burden, loss of sleep, emotional distress, and pain and suffering; d. Defendant’s actions have caused Plaintiff out-of-pocket financial losses, including medical bills, increased utility bills, and water costs; e. Defendant’s actions have caused Plaintiff to incur the costs of attorneys and a hydrogeologist; 19 f. Defendant’s actions have caused property damage, manifested in well water contamination in the past, present, and possibly the future, as well as potential stigma that could affect the sale price of his property if Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 he choses to sell it. COUNT I VIOLATION OF PENNSYLVANIA’S CLEAN STREAMS LAW 83. Paragraphs 1 through 82 are incorporated by reference as if set forth fully herein. 84. Defendant, through its HDD activities, caused the placement, discharge, and flow of coliform bacteria including e. coli from the soil around or near the HDD activities into the groundwater at or around the HDD drill bore and that bacteria then reached Plaintiff’s well and caused his sickness. 85. The coliform bacteria that Defendant’s HDD activities caused to flow into the groundwater qualifies as “industrial waste” and “sewage” pursuant to Section 1 of the Clean Streams Law, 35 P.S. § 691.1. 86. Groundwater is a “Water of the Commonwealth” pursuant to Section 1 of the Clean Streams Law, 35 P.S. § 691.1. 87. Defendant’s HDD activities caused the pollution of Plaintiff’s well and violated sections 201 and 301 of the Clean Streams Law, 35 P.S. §§ 691.201, 691.301. 88. Pursuant to section 601 of the Clean Streams Law, 35 P.S. § 691.601, a violation of the Clean Streams Law constitutes a statutory nuisance. 20 89. Plaintiff seeks an order requiring Defendant to discontinue and/or not resume HDD drilling activities adjacent to his property that will cause or contribute to contamination of his well water. Plaintiff also sees an order requiring Defendant to engage in regular testing of his well water with the test results Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 promptly supplied to him, and to provide him with an ample supply of drinkable water that is certified to be clean and free from contaminants until such time as the test results show that Plaintiff’s well water is clean and at no risk of further contamination because of Defendant’s HDD activities. WHEREFORE, Plaintiff hereby requests that the Court enter an order enjoining Defendant from continuing or resuming HDD drilling activities adjacent to his property that have caused and unless enjoined will cause or contribute to or continue to cause or contribute to the contamination of his well water, and also requiring Defendant to engage in regular testing of his well water with the test results promptly supplied to him, provide him with an ample supply of drinkable water that is certified to be clean and free from contaminants until such time as the test results show that Plaintiff’s well water is clean and at no risk of further contamination because of Defendants HDD activities, and pay Plaintiff’s attorney and expert fees and costs including fees and the costs of investigating this matter. 21 COUNT II NEGLIGENCE 90. Paragraphs 1 through 89 are incorporated by reference as if set forth fully herein. Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 91. Defendant is liable to Plaintiff both under common law negligence principles and 15 Pa. C.S. § 3351(g), which provides that a “company laying a pipeline in this Commonwealth shall be liable for all damages occasioned by . . . any negligence in the construction . . . thereof.” 92. Defendant knew or reasonably should have known that use of HDD could cause underground changes to the surrounding soil and rock in proximity to private wells, causing contaminants and pollution to enter the wells, leading to unsafe and unacceptable drinking water and other harms. 93. Defendant owes a duty to homeowners whose property with property adjacent to or near the proposed path of the ME-II pipeline to conduct its HDD operations by exercising ordinary care to avoid causing harm to neighboring properties and the people who live there, including harm to water supplies. 94. Defendant breached its duty in multiple ways, including, but not limited to, the following: a. Failing to take reasonable measures to ensure that its HDD operations did not cause contamination of Plaintiff’s well water; b. Failing to notify Plaintiff in a timely manner that his well water was contaminated and unsafe for drinking; 22 c. Failing to address the problems of Plaintiff’s well water contamination caused by Defendant’s HDD operations even after the harm to Plaintiff’s well water caused by Defendant’s HDD operations was brought to its attention; Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 d. Failing to notify Plaintiff prior to beginning HDD operations that he should not use his well water during those operations. 95. Defendant’s tortious actions and inactions have caused Plaintiff harm as set forth above. WHEREFORE, Plaintiff seeks judgment in his favor including the foregoing injunctive relief as well as an award of compensatory damages and punitive damages in amount to be decided by the jury, with pre-judgment and postjudgment interest, and such other relief as the Court deems just and proper. COUNT III PRIVATE NUISANCE 96. Paragraphs 1 through 95 are incorporated by reference as if set forth fully herein. 97. Defendant by its actions violated Plaintiff’s interest in the private use and enjoyment of his property. 98. Defendant’s actions were intentional and unreasonable. 99. In the alternative, Defendant’s actions in causing contamination to Plaintiff’s well were actionable in that they were negligent and/or reckless, and involved abnormally dangerous activities. 23 100. Defendant’s actions caused Plaintiff significant harm, as set forth above. WHEREFORE, Plaintiff seeks judgment in his favor including the foregoing injunctive relief as well as an award of compensatory damages and Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 punitive damages in amount to be decided by the jury, with pre-judgment and postjudgment interest, and such other relief as the Court deems just and proper. COUNT IV STRICT LIABILITY 101. Paragraphs 1 through100 are incorporated by reference as if set forth fully herein. 102. Defendant’s HDD activities are abnormally dangerous and ultrahazardous. 103. Defendant is strictly liable to Plaintiff for the damages it caused to Plaintiff as alleged above. WHEREFORE, Plaintiff seeks judgment in his favor including the foregoing injunctive relief as well as an award of compensatory damages and punitive damages in amount to be decided by the jury, with pre-judgment and postjudgment interest, and such other relief as the Court deems just and proper. 24 COUNT V TRESPASS 104. Paragraphs 1 through 103 are incorporated by reference as if set forth fully herein. Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 105. Defendant by its actions alleged above is liable to Plaintiff for trespass. WHEREFORE, Plaintiff seeks judgment in his favor including the foregoing injunctive relief as well as an award of compensatory damages and punitive damages in amount to be decided by the jury, with pre-judgment and postjudgment interest, and such other relief as the Court deems just and proper. COUNT VI PUNITIVE DAMAGES 106. Paragraphs 1 through 105 are incorporated by reference as if set forth fully herein. 107. Through its experiences with HDD, Defendant had a subjective appreciation of the multiple risks posed by its HDD activities, including the risk that its activities could cause contamination or private drinking wells such as Plaintiff’s. 108. Defendant acted in conscious disregard of that risk by its actions and inactions as set forth above. 25 WHEREFORE, Plaintiff seeks judgment in his favor including the foregoing injunctive relief and as well as an award of compensatory damages and punitive damages in amount to be decided by the jury, with pre-judgment and postjudgment interest, and such other relief as the Court deems just and proper. Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 Respectfully submitted, STEVE HARVEY LAW LLC By: Stephen G. Harvey (PA 58233) Michael E. Gehring (PA 57224) 1880 John F. Kennedy Blvd. Suite 1715 Philadelphia, PA 19013 (215) 438-6600 steve@steveharveylaw.com mike@steveharveylaw.com Attorneys for Plaintiff David W. Anspach III Dated: July 16, 2019 26 Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 DAVID W. ANSPACH, III 609 Joanna Road Morgantown, PA 19543 Court of Common Pleas Berks County, Pennsylvania Plaintiff, Civil Action Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 v. Case No. __________________ SUNOCO PIPELINE, L.P. 535 Fritztown Road Sinking Springs, PA 19608 Jury Trial Demanded Defendant. NOTICE TO DEFEND NOTIFICACIÓN PARA DEFENDERSE NOTICE AVISO You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. Le han demandado a usted en el tribunal. Si usted quiere defenderse de las demandas expuestas en las páginas siguientes, usted debe tomar acción en el plazo de veinte (20) días a partir de la fecha en que se le hizo entrega de la demanda y la notificación, al interponer una comparecencia escrita, en persona o por un abogado y registrando por escrito en el tribunal sus defensas o sus objeciones a las demandas en contra de su persona. Se le advierte que si usted no lo hace, el caso puede proceder sin usted y podría dictarse un fallo por el juez en contra suya sin notificación adicional y podría ser por cualquier dinero reclamado en la demanda o por cualquier otro reclamo o desagravio en la demanda solicitado por el demandante. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. USTED DEBE LLEVARLE ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O NO PUEDE CORRER CON LOS GASTOS DE UNO, VAYA O LLAME POR TELEFONO A LA OFICINA EXPUESTA ABAJO. ESTA OFICINA PUEDE POVEERLE INFORMACION RESPECTO A COMO CONTRATAR A UN ABOGADO. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyers’ Referral Service of the Berks County Bar Association 544 Court Street Reading, Pennsylvania 19601 Telephone (610)375-4591 www.BerksBar.org SI NO PUEDE CORRER CON LOS GASTOS PARA CONTRATAR A UN ABOGADO, ESTA OFICINA PUDIERA PROVEERLE INFORMACION RESPECTO A INSTITUCIONES QUE PUEDAN OFRECER SERVICIOS LEGALES A PERSONAS QUE CALIFICAN PARA LA REDUCCION DE HONORARIOS O QUE NO TENGAN QUE PAGAR HONORARIOS. Servicio de Recomendación para Contratar Abogados del Colegio de Abogados del Condado Berks 544 Court Street Reading, Pennsylvania 19601 Teléfono (610) 375-4591 www.BerksBar.org Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 Exhibit A Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 Exhibit B Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 Exhibit C Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 Exhibit D Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381 Received County of Berks Prothonotary’s Office on 07/16/2019 2:55 PM Prothonotary Docket No. 19-14381