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In an apparent case of first impression for Pennsylvania state courts, a Philadelphia judge has ruled that a federal civil rights claim cannot be brought against a housing authority under U.S. lead paint poisoning regulations. Common Pleas Judge Joseph I. Papalini’s conclusion in Hurt v. Philadelphia Housing Authority falls in line with a number of federal decisions concerning privately enforceable civil rights and the Lead-Based Paint Poisoning Prevention Act. If upheld, the ruling could ensure that local housing authorities are not held liable in state courts for �1983 civil rights claims brought under the LPPPA. Damages in actions brought against government entities under federal law are potentially unlimited, while those in cases brought under state law are capped according to governmental immunity statutes, noted Brian Slipakoff, a Wolf Block Schorr & Solis-Cohen associate who defended the PHA in Hurt alongside partners Alan Kessler and Charlotte Thomas. Plaintiffs attorney David Alexander of Monheit Silverman & Fodera said he included the �1983 claims in the Hurt complaint because damages won under federal law are not capped. The case involves claims by Harold and Philip Hurt that they were exposed to lead-based paint during the 1980s and 1990s when they were minors living in a West Philadelphia residence owned and managed by the PHA. In his decision, filed Jan. 20, Papalini struck the Hurts’ �1983 claims, concluding that because the LPPPA has no rights-creating language, federal regulations relating to that act cannot create such rights. “We have reviewed the provisions of the LPPPA and find that they include no rights-creating terms,” Papalini wrote. “Significantly, the legislation requires the testing of paint, not people.” The sections of the LPPPA cited by the Hurts mainly consist of regulatory directives aimed at the U.S. Secretary of Housing and Urban Development. According to Papalini’s opinion, a number of federal court decisions from the 1980s and 1990s held that the LPPPA does not confer personal federal rights enforceable through �1983 actions, while a separate line of federal court decisions over the same period contend that it does. But in 2002, the U.S. Supreme Court held in Gonzaga University v. Doe that even where a statute contains explicit rights-creating terms, a plaintiff suing under an implied right of action must show that the statute amounts to an intent to create a private remedy. “Thus, in order for a person to proceed with a Section 1983 action, a statute must confer a privately enforceable right, not just a benefit,” Papalini wrote. “Cases after [ Gonzaga] have narrowly interpreted federal statutes.” In addition, Papalini continued, two federal district courts in the 6th U.S. Circuit Court of Appeals — in cases involving the housing authority of Louisville, Ky., and the city of Detroit, respectively — have ruled that “neither the text nor the structure of the LPPPA supported the conclusion that Congress intended to create enforceable rights under Section 1983 for children residing in public housing who are exposed to lead-based paint.” Papalini, noting that the plaintiffs had lived in the residence in question voluntarily, also rejected the Hurts’ argument that they had the right to live in a home free of lead-based paint under the Fifth and 14th amendments to the U.S. Constitution. Alexander, who represented the Hurts along with Leonard Fedora, Louis Silverman and John Trotman, said his clients are considering their appellate options. A class action brought by the Hurts against the PHA in the Eastern District of Pennsylvania eventually settled under a non-monetary agreement for injunctive relief, he said. Slipakoff said that an opposite result “would open housing authorities up to a lot more potential liability.” Both attorneys said their research had uncovered no other state court decisions on the issue. Papalini sua sponte certified his decision for immediate interlocutory appeal.

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