Gould, Inc. v. A & M Battery and Tire Service
| Decision Date | 29 January 1997 |
| Docket Number | Civil Action No. 3:CV-91-1714. |
| Citation | 954 F.Supp. 1014 |
| Parties | GOULD, INC., Plaintiffs, v. A & M BATTERY AND TIRE SERVICE, et al., Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Dennis Suplee, John Armstrong, Richard A. Barkasy, Edward McBride, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, for plaintiffs.
John Privitera, McNamee, Lochner, Titus & Williams, PC, Albany, NY, for defendants.
William Kriner, Kriner, Koerber & Kirk, PC, Clerafield, PA, for Novey Metal Co.
Richard Brickwedde, Green & Seifter, Syracuse, NY, for Louis Perlman and Sons, Inc. and S. Kasowita & Sons.
Michael Flannelly, Morgan & Flannelly, York, PA, for Larami Metal Company, Inc.
Presently before the Court is Gould's motion for partial summary judgment against certain defendants.1 (Doc. 1422). Gould contends it has been established through discovery that the named defendants in this pending motion either arranged for or disposed of spent batteries at the Marjol Battery Plant located in the Borough of Throop, Lacakawanna County, Pennsylvania (hereinafter "the site"). We note Gould has filed a motion to withdraw this motion to nine (9) defendants, due either to settlement or to newly discovered facts.2 For the reasons as set forth infra, we shall grant Gould's motion.
The facts surrounding the operations at the site are known to all parties involved, the factual history can be found in the reported case of Gould, Inc. v. A & M Battery & Tire Service, et al., 933 F.Supp. 431 (M.D.Pa. 1996).
Discovery was completed in this action quite some time ago, and had been conducted for an extensive period of time, resulting in numerous volumes of transcripts, responses to requests for production of documents and admissions, as well as reports and ledger entries. Gould contends that discovery has yielded admissions of certain named defendants that they had conducted dealings with Gould or had shipped spent batteries to the site.
Of the named defendants, four (4) have filed opposition briefs to Gould's motion. They are: Novey Metal Co., Louis Perlman & Sons, Inc. and S. Kasowitz & Sons, Inc., and Larami Metal Company, Inc. (Docs. 1460, 1464 and 1465). Counsel for Philip May filed a motion for an extension of time to file an opposition brief (Doc. 1484). The motion was granted; however, since then, no opposition brief was ever filed.
As to the defendants who did not file an opposition brief, we find that Gould's motion is deemed unopposed in accordance with Local Rule 7.6, Local Rules of Court, M.D. Pa. We therefore only need to address the merits of defendants Novey Metal Co., Louis Perlman & Sons, Inc. and S. Kasowitz & Sons, Inc., and Larami Metal Company, Inc..
Pursuant to Fed.R.Civ.P. 56(c), a motion for summary judgment will only be granted if there is no genuine issue of material fact and if the moving party is entitled to relief as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). A fact is "material" if proof of its existence or nonexistence would effect the outcome of the lawsuit under the applicable law in the case. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. An issue of material fact is "genuine" if the evidence is such that a reasonable jury might return a verdict for the non-moving party. Hankins v. Temple University, 829 F.2d 437, 440 (3d Cir.1987).
In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). A moving party is entitled to a judgment as a matter of law if the nonmoving party does not make a sufficient showing on an essential element of his case with respect to which he has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
Once the moving party has satisfied its burden of identifying evidence which demonstrates an absence of a genuine issue of material fact, Childers v. Joseph, 842 F.2d 689, 694 (3d Cir.1988), the nonmoving party is required by Fed.R.Civ.P. 56(e) to go beyond the pleadings by way of affidavits, depositions or answers to interrogatories in order to demonstrate specific material facts which give rise to a genuine issue. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. When Rule 56(e) shifts the burden of proof to the nonmoving party, that party must proffer evidence to show the existence of every element essential to its case which it bears the burden of proving at trial. Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir.1987).
When reviewing a motion for summary judgment, the court must decide whether or not there is a genuine issue of material fact which must be resolved at trial or whether the evidence is so one-sided that one party will prevail over the other. Groff v. Continental Insurance Co., 741 F.Supp. 541 (E.D.Pa.1990). "Where factual controversies exist, disputes over material facts that might affect the outcome of the suit under the governing law will probably preclude the entry of summary judgment." Metro Transportation Co. v. North Star Reinsurance Co., 912 F.2d 672, 678 (3d. Cir.1990).
A. DEFENDANT NOVEY METAL CO.
Novey Metal contends that the deposition pages submitted by Gould in support of its motion were taken out of context and that said pages fail to reveal evidence of a sale of spent batteries by Novey Metal, or that Novey arranged for the disposal of hazardous substance under § 107(a)(3) of CERCLA. (Doc. 1461, p. 2). Rather, Novey Metals contend "[w]hen Mr. Novey sold batteries, it was to brokers and not individual lead recovery facilities", (Doc. 1461, p. 1), and that Novey Metal only knew that two (2) shipments were bound for the site. (Doc. 1461, Exh. A, p. 2).
We have previously held that "the sale of junk batteries to a battery recycling facility constitutes an arrangement for disposal or treatment of a hazardous substance". Gould, Inc. v. A & M Battery & Tire Service, et al., 933 F.Supp. 431, 436 (M.D.Pa.1996); Memorandum and Order dated June 17, 1996 denying defendant Denver Construction Company's (t/a Lukens Metal and Harold Strauss in his own capacity, also a broker) motion to reconsider our memorandum and order dated April 24, 1996. We stated that "this Court has previously determined that a party that sells junk batteries to a battery-breaking company faces arranger liability under CERCLA." (Doc. 1292, p. 3). Furthermore, in Chesapeake and Potomac Telephone v. Peck Iron & Metal, 814 F.Supp. 1293, 1295 (E.D.Va.1993), the court held that liability will attach "once a defendant receives notice from its go-between that its batteries ultimately had been sent to [a particular site], it clearly [is] on notice, as far as future transactions with that middleman were concerned, that its batteries could well wind up at the [same site]." The responses to Gould's first set of request for admissions and interrogatories submitted to Novey Metal Co. affirmatively show Novey Metal knew that some of their batteries were taken to the site. (Doc. 1461, Exh. A, p. 5). In light of this, we shall grant Gould's motion as it pertains to Novey Metal Company.
B. DEFENDANTS LOUIS PERLMAN & SONS, Inc. AND S. KASOWITZ & SONS
Defendants Louis Perlman & Sons, Inc. and S. Kasowitz & Sons, Inc. (hereinafter "Kasowitz and Perlman") contend that both of these corporations are not liable because: (1) there was no arrangement for the disposal of any hazardous waste; and (2) there is no genuine issue of material fact whether batteries sold by Kasowitz and Perlman were disposed of at the Marjol site, since the deposition of Lawrence Figelman reveals that in addition to going to the site in question, Marjol trucks also went to other dumping sites in Toronto and New Jersey. Also, both corporations ask this Court to reconsider its order granting Gould's motion for summary judgment against eighty-five (85) defendants which was entered by order of Court dated July 15, 1995. Gould, Inc. v. A & M Battery & Tire Service, et al., 933 F.Supp. 431 (M.D.Pa.1996). We are unpersuaded by all three of these arguments.
We have previously held that "the sale of junk batteries to a battery recycling facility constitutes an arrangement for disposal or treatment of hazardous substance." Gould, 933 F.Supp. at 436. Furthermore, other courts have held that even if the sale is through a middle-man or broker, the indirect seller is still liable. Chatham Steel Corp. v. Brown, 858 F.Supp. 1130, 1144 (N.D.Fla.1994). Kasowitz and Perlman's argument that the spent batteries which were disposed of do not constitute "waste" but rather are a "commodity" also fails, due to the holding of the Chatham case which Kasowitz and Perlman cite as their authority. In Chatham, the court held that "if the product has no value for the purpose for which it was manufactured and contains a hazardous substance [such as lead], then it is more likely then the sale is an arrangement to dispose of the substance." Chatham, 858 F.Supp. at 1140 (citing Prudential Insurance Co. v. United States Gypsum, 711 F.Supp. 1244, 1254 (D.N.J.1989). As these spent batteries were not sold in a transaction to Marjol for placement in automobiles or machines, but rather were sold to Marjol for the reclamation of the lead, we find that such arrangements, through direct scrap dealers or through brokers or other middlemen, is an arrangement under CERCLA. This ruling, contrary to what Kasowitz...
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