Piccolini v. Simon's Wrecking
| Decision Date | 22 March 1988 |
| Docket Number | Civ. No. 86-1059. |
| Citation | 686 F. Supp. 1063 |
| Parties | PICCOLINI, et al., Plaintiffs, v. SIMON'S WRECKING, et al., Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
James Scanlon, Scranton, Pa., Bernd Heinze, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, Pa., Stephen Tasher and John Dean, Donovan, Leisure, Newton & Irvine, Washington, D.C., Ann Pepperman, McNerney, Page, Vanderlin & Hall, Williamsport, Pa., for Simon Wrecking et al.
Mark Cuker, Slap, Williams & Cuker, Philadelphia, Pa., David Cherundolo, Scranton, Pa., for Piccolini & Cherundolo.
Anthony J. Piazza, Tellie, Durkin, Weinberger, Murphy & Piazza, P.C., Scranton, Pa., Thos. Dent and M. Dolan, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., Thomas E. Styczen, Elmhurst, Ill., for Chamberlain Mfg. Corp.
N. Perrella and S. Picco, Greenstone and Sokol, Trenton, N.J., Mark N. Cohen, Margolis, Edelstein, Scherlis, Sarowitz & Kraemer, Philadelphia, Pa., for S & W Waste, Inc.
Allen Ertel, Reed, Smith, Shaw & McClay, Williamsport, Pa., and J. Bradford McIlvain, Reed, Smith, Shaw & McClay, Philadelphia, Pa., for Avco, Corning Glass, Zenith, Const. Fast., Schultz Electroplating & Celotex.
Irwin Shur, Eastburn & Gray, Doylestown, Pa., for Masonite.
Frank Bolock, Miller, Cali, Cecchini & Bolock, Scranton, Pa., for Lacka Ref/Iacavazzi, N.E. Land.
John McLane, Scranton, Pa., Martin P. Olney, Washington, D.C., for Huller Lane & Hamilton Intern.
Richard Fine, Bialkowski, Fine & Bialkowski, Scranton, Pa., T. Garrett and R. DeSanti, Covington & Burling, Washington, D.C., for Proctor & Gamble.
Wm. Stanley Morton, Sr. Counsel, The Proctor & Gamble Co., Cincinnati, Ohio.
William Haggerty, Morgan, Hallgren, Crosswell & Kane, Lancaster, Pa., Spindel, Scott & Ricci, Lowenstein, Sandler, Kohl, Fisher & Boylan, Roseland, N.J., for Berkley Prod. & Rola Co.
Gary Gushard, T. Arensberg, P.C., Pittsburgh, Pa., David Bunnel and Ralph Waechter, Pittsburgh, Pa., for Aluminum Co. of America.
Maida Rosenfeld Crane, Joseph P. Hart, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for GAF Corp.
William W. Warren, Scranton, Pa., for Owens-Illinois, Inc.
Dorothy Hammitt, S. Braver, T. Reed, L. Mead, Buchanan Ingersoll, P.C., Pittsburgh, Pa., for GTE Service/Products.
Donald Joseph and Wolf, Block, Schorr & Solis Cohen, Philadelphia, Pa., for TRW, Inc. and Inland Pumping.
Lynn Clouser, Frank Thomas, Jr., Morgan, Lewis & Bockius, Philadelphia, Pa., for Airco Carbon Div. Boc Group, Amp. Inc. and Fairchild Weston.
Jennifer Berke, Kelly, Harrington, McLaughlin & Foster, Philadelphia, Pa., for Rockwell Intern.
Michael Roth, Scranton, Pa., for Dana Corp.
John Ubinger, Jr., Eckert, Seamans, Cherin & Mellotti, Pittsburgh, Pa., for Avery Intern. & Westinghouse.
Kevin Lucas and James Walker, Mannion, McDonough & Lucas, P.C., Pittsburgh, Pa., for Elliot Turbomachinery.
Susan LeGros and Lloyd Gelwan, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for Mack Trucks, Inc.
Wm. J. Taylor and Thos. Masterson, Taylor & Taylor, Philadelphia, Pa., for Champion Valley Farms.
Howard Spizer and Paul Ackourey, Spizer & Ackourey, Scranton, Pa., for Mercantile Financial.
Harry W. Reed, Jr., Bernerd A. Buzgon, Bradford H. Charles, Timothy J. Huber, Davis, Katz, Buzgon, Davis, Reed & Charles, Ltd., Lebanon, Pa., for N.Y. Wire Co.
Hershel Richman, Cohen, Shapiro, Polisher, Shiekman & Cohen, Philadelphia, Pa., for Air Prod & Chem & Supelco.
E. Mitchell and R. Gray, Williamsport, Pa., for Piper Aircraft.
Joseph Donley and P. Kittredge, Kittredge, Kauffman & Donley, Philadelphia, Pa., for Westvaco Corp.
T. Bossert and E. Dougherty, McNees, Wallace & Nurick, Harrisburg, Pa., for Textile Chemical Co.
H. Wein and H. Klodowski, Berkman, Ruslander, Pohl, Lieber & Engel, Pittsburgh, Pa., for Centre Engineering.
Larry L. Yetter, Jennie M. Crowley, Theodore F. Craver, Beverly Hills, Cal., for Fitchburg CPA.
Donald K. Joseph, Mary Elizabeth Ward, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for RCA Corp.
This is an action brought in 1986 by the owners of properties adjacent to the Iacavazzi landfill, otherwise known as the Old Forge Landfill, in Old Forge, Pennsylvania, (hereinafter referred to as "Landfill"). The Plaintiffs allege that their property has been contaminated as a result of waste placed at the landfill. The complaint in this action seeks relief under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601, et seq. with pendent state claims for negligence, nuisance, trespass and strict liability. The Defendants in this action are the owner and operator of the landfill and numerous generators and haulers of the toxic waste which was disposed of in the landfill. This Memorandum will address the issues presented in the Defendants' motion to dismiss relating to the question of whether the Plaintiffs have incurred response costs necessary to support their CERCLA cause of action, and whether the pendent state law claims are insufficient as a matter of law and barred by the applicable statutes of limitations. For the reasons that follow we will deny the Defendants' motion to dismiss.
The complaint in this case was filed on August 1, 1986. For the sake of clarity, the Court notes that a related action was brought in 1984, against the landfill operators and transporters with unidentified generators listed in the complaint only as "John Doe's."
On October 20, 1986, Plaintiffs filed an amended complaint against 17 separate Defendants. The causes of action stem from the waste materials located at the landfill site in Old Forge, Pennsylvania. The Defendants are divided into three distinct groups:
(1) The owners and operators of the site (hereinafter referred to as "Operator Defendants");
(2) The transporters of the waste to the site (hereinafter referred to as "Transporter Defendants");
(3) The generators of the waste purportedly disposed of at the site (hereinafter referred to as the "Generator Defendants").
In response to the Plaintiffs' second amended complaint, the "Generator Defendants" have moved to dismiss every count of the complaint. Additionally, some of the Generator Defendants have moved in the alternative to a dismissal under Federal Rule of Civil Procedure 12, that the Plaintiffs supply them with a more definite statement.
On June 4, 1987, this Court filed a management order requiring the Plaintiffs to submit "the substance of the testimony and evidence on which the Plaintiffs will rely to establish a prima facie case". In response to the material submitted by the Plaintiffs and their memorandum in support of their prima facie case, the Defendants filed a brief in opposition to the Plaintiffs' prima facie case. The Plaintiffs thereafter filed a reply to the brief in opposition to their prima facie case.
For a period of years preceding 1979, it is alleged that the Generator Defendants, acting directly through the Operator and/or Transporter Defendants, disposed of toxic and hazardous substances at the landfill site in Old Forge, Pennsylvania. The disposal of the above referenced hazardous materials at the landfill was alleged to be illegal and in violation of the permit issued by the Pennsylvania Department of Environmental Resources ("Pa.DER") to the owners and operators of the landfill. As a result of the said illegal activities, the Pa. DER ordered the landfill to be closed due to the severity of the landfill's contamination by the toxic substances and the resulting environmental threat to the surrounding area, the United States Environmental Protection Agency ("E.P.A.") has designated the landfill for inclusion on the National Priorities List of Hazardous Waste Sites pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") 42 U.S. C. § 9601, et seq.
Plaintiffs allege that they learned of the illegal disposal of hazardous and/or toxic waste at the landfill on or about 1979 and the said disposal constituted a dangerous condition to the Plaintiffs and their families.
As a result of the presence of the hazardous substances deposited at the landfill, it is alleged that the surrounding environment, including the soil, air, and water have been seriously contaminated. For instance, the surface waters and soil, and the surrounding ground water supply is threatened by the migration of pollutants and contaminants emanating from the landfill. The land surrounding the landfill has been rendered unable to sustain the growth of trees, shrubs and foliage and grass which has resulted in increased "runoff" and soil erosion which allegedly still continues. These factors have contributed to the migration of contaminants to the surrounding surface waters, and thereby increase the concentration of toxic and hazardous substances contained in that water. The Plaintiffs further allege that the contaminated soils and surface water surrounding the landfill results in the release of vapors contaminating the air with various organic vapors and toxic gases.
The Plaintiffs allege that the situation at the landfill and the surrounding area constitutes a continuing tort.
Plaintiffs ground their complaint on five separate theories. Count I is grounded on CERCLA and avers that the Defendants' acts or omissions caused contaminants to be released at the landfill which has caused Plaintiffs to incur response costs. Count II of the complaint sounds in strict liability, and alleges that the Defendants' dealings with the hazardous chemical wastes at the landfill comprised an abnormally dangerous and/or ultrahazardous activity which subjects the Defendants to strict liability for all the resultant harm. Count III sounds in negligence claiming the Defendants failed to take reasonable precautions so that the Plaintiffs' persons or property would not be contaminated by...
To continue reading
Request your trial
-
Commonwealth v. Monsanto Co.
...during discovery, at summary judgment, and, if necessary, at trial. Barton , 124 A.3d at 355-56 ; see also Piccolini v. Simon's Wrecking , 686 F. Supp. 1063 (M.D. Pa. 1988) (when many factors determine whether a manufacturer is strictly liable for harm caused by its product, and the Distric......
-
Bolin v. Cessna Aircraft Co., Civ. A. No. 87-1338-T.
...toxic waste hazards. Amland Properties Corp. v. Aluminum Co. of Am., 711 F.Supp. 784, 795 (D.N.J.1989)(quoting Piccolini v. Simon's Wrecking, 686 F.Supp. 1063, 1068 (M.D.Pa.1988)). Remedial actions, however, are generally considered to be long-term or permanent. Id. (quoting T & E Indus., I......
-
Lutz v. Chromatex, Inc.
...by Pennsylvania law and the claim should be dismissed." See document 39 of record, at pp. 56-59. As in Piccolini v. Simon's Wrecking, 686 F.Supp. 1063 (M.D.Pa.1988) (Conaboy, J.), the court believes that this argument is better left for a summary judgment motion following the development of......
-
Mangini v. Aerojet-General Corp.
...injury is ordinarily a question of fact turning on the nature and extent of the contamination. (See, e.g., Piccolini v. Simon's Wrecking (M.D.Pa.1988) 686 F.Supp. 1063, 1075-1077;...
-
The aftermath of Key Tronic: implications for attorneys' fee awards.
...later. See infra part III.C.1. (35.)Bolin v. Cessna Aircraft Co., 759 F. Supp. 692, 711 (D. Kan. 1991); Piccolini v. Simon's Wrecking, 686 F. Supp. 1063, 1068 (M.D. Pa. (36.)42 U.S.C. [sections] 9601(23); Matter of Bell Petroleum Servs., Inc., 3 F.3d 889, 894 (5th Cir. 1993); Hatco Corp. v.......
-
CHAPTER 6 APPORTIONING ENVIRONMENTAL LIABILITIES IN REAL ESTATE TRANSACTIONS1
...company's CERCLA claims for alternate water supplies and idleness of property and equipment). See also Piccolini v. Simon's Wrecking, 686 F.Supp. 1063, 1068 (M.D. Pa. 1988) ("diminution in property value and lost income are not recoverable under CERCLA"). An all encompassing representation ......