The Pennsylvania Superior Court ruled that Birdsboro Power, LLC, and its affiliates must produce documents they previously withheld in a legal dispute with Solid Waste Services, Inc. The court's decision, issued on June 9, 2026, comes after a lengthy legal battle surrounding the Birdsboro Power Plant and its waste disposal agreements. This ruling affects Birdsboro Power and its affiliated companies, which had claimed the documents were protected under the common interest privilege.
This case, identified by docket number 1674 EDA 2025, centers on a dispute between Birdsboro Power and Solid Waste Services regarding the disposal of waste generated during the construction of a natural gas-fired power plant. The court's decision is significant as it clarifies the application of the common interest privilege in Pennsylvania law, which allows parties to share information without waiving attorney-client privilege under certain conditions.
Background
The parties involved in this case include Solid Waste Services, Inc. (operating as J.P. Mascaro and Sons) and Birdsboro Power, LLC, along with its affiliates Birdsboro Power Holdings I, LLC, and Ares EIF Management, LLC. The dispute arose from a waste disposal agreement related to the Birdsboro Power Plant, which began development in 2015. Birdsboro Power initially contracted with Mascaro to handle waste generated from the demolition of a former steel foundry and subsequent construction activities.
In 2016 and 2017, Mascaro and Ember Partners, the original owner of Birdsboro Power, negotiated a land-swap agreement that would allow Birdsboro Power to access certain easements on Mascaro's property. However, disagreements arose over the amount of waste generated and the obligations under the waste disposal agreement. Mascaro claimed that Birdsboro Power had misrepresented the expected waste tonnage, which led to the current legal battle.
The Ruling
The court ruled in favor of Solid Waste Services, affirming the lower court's decision to compel Birdsboro Power to produce documents it had withheld based on the common interest privilege. Judge Panella stated, "We agree with the trial court that while there may have been a common interest between the applicable parties earlier in the negotiations and dealings, there is no evidence of a common interest at the times relevant to the instant lawsuit."
The court found that Birdsboro Power did not meet its burden to prove the existence of an agreement to share the common interest privilege. The judge noted that the claimed common interest ended when the Overarching Agreement was executed on May 22, 2017, and that the Birdsboro Appellants failed to provide sufficient evidence to support their claims regarding the privilege. The ruling emphasized that the common interest privilege is not a standalone privilege but an extension of the attorney-client privilege.
Impact
This ruling has significant implications for the ongoing legal proceedings between Birdsboro Power and Solid Waste Services. By requiring Birdsboro Power to release the withheld documents, the court is ensuring that all relevant information is available for review, which could impact the outcome of the case. The decision also clarifies the standards for invoking the common interest privilege in Pennsylvania, emphasizing that parties must demonstrate a shared legal interest and that mere business interests are insufficient.
Going forward, this ruling may influence how companies approach negotiations and document sharing in similar legal contexts. It sets a precedent that highlights the importance of clear agreements regarding common interests and the necessity of involving legal counsel in communications that may be subject to privilege.
What's Next
Birdsboro Power may seek to appeal the ruling, but details were not available in the court filing regarding any potential appeal. The case remains active as the parties continue to navigate the legal proceedings surrounding the waste disposal agreements and the obligations of each party.