Con-Tech Sales Defined Ben. Trust v. Cockerham

• Decision Date: 01 June 1989
• Docket Number: Civ. A. No. 87-5137.
• Parties: CON-TECH SALES DEFINED BENEFIT TRUST and Synthes (U.S.A.) and Jack R. Loew, individually and as trustee of Con-Tech Sales Defined Benefit Trust v. Gilbert G. and Virginia D. COCKERHAM, h/w and McCoy R. and Betty J. Cockerham, h/w and McCoy R. Cockerham and Gilbert G. Cockerham, individually and trading as M & G Cockerham and Richard T. Hannig and Louis R. Palitz, and Richard T. Hannig and Louis R. Palitz, trading as Hannig and Rudolph v. NATIONAL ROLLING MILLS, INC., Hough/Loew Associates, Inc., Bundy Corporation and NRM Investment Company formerly k/a National Rolling Mills Company, v. WORTHINGTON INDUSTRIES.
• Court: U.S. District Court — Eastern District of Pennsylvania

715 F. Supp. 701

CON-TECH SALES DEFINED BENEFIT TRUST and Synthes (U.S.A.) and Jack R. Loew, individually and as trustee of Con-Tech Sales Defined Benefit Trust v. Gilbert G. and Virginia D. COCKERHAM, h/w and McCoy R. and Betty J. Cockerham, h/w and McCoy R. Cockerham and Gilbert G. Cockerham, individually and trading as M & G Cockerham and Richard T. Hannig and Louis R. Palitz, and Richard T. Hannig and Louis R. Palitz, trading as Hannig and Rudolph v. NATIONAL ROLLING MILLS, INC., Hough/Loew Associates, Inc., Bundy Corporation and NRM Investment Company formerly k/a National Rolling Mills Company, v. WORTHINGTON INDUSTRIES.

Civ. A. No. 87-5137.

United States District Court, E.D. Pennsylvania, Civil Division.

June 1, 1989.

Robert W. Lentz, Paoli, Pa., for ConTech.

Nicholas M. Kouletsis, Philadelphia, Pa., for Synthes.

William H. Mitman, Jr., West Chester, Pa., for Cockerham.

Richard H. Martin, Lawrence J. Bunis, Philadelphia, Pa., for Hannig, Palitz, Hannig & Rudolph.

John C. McNamara, Philadelphia, Pa., for National Rolling Mills, Inc.

Jane M. Shields, Paoli, Pa., for Hough/Loew.

Mary F. Platt, Philadelphia, Pa., for Bundy.

Edward Fackenthal, Norristown, Pa., for NRM Investment.

OPINION AND ORDER

VAN ANTWERPEN, Judge.

This action arises out of the alleged disposal of hazardous wastes on property now owned by plaintiffs ("Con-Tech"). In the instant matter, third-party defendant Hough/Loew Associates ("Hough/Loew") moves to dismiss the third-party complaint of defendants Richard Hannig and Louis Palitz, trading as Hannig & Rudolph ("Rudolph"). For the reasons stated below, we will deny the motion.

Background

According to Con-Tech's second amended complaint, in 1986, Con-Tech purchased from Rudolph a parcel of land in Chester County. The land is now identified as Whiteland Business Park. From 1970 until sometime thereafter, the Cockerham defendants ("Cockerham") leased from Rudolph an area in and around Whiteland Business Park. During much of that period, Cockerham engaged in the disposal of wastes, some hazardous, in and around Whiteland Business Park. In September, 1986, after plaintiffs purchased the land, which included property leased to Cockerham, they discovered the waste.

Pursuant to the Comprehensive Environmental Responses, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et. seq. and the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(B), plaintiffs bring this action to recover the costs of removing allegedly hazardous waste on their property. Plaintiffs also pray for recovery under the Pennsylvania Solid Waste Management Act, 35 Pa.Cons.Stat.Ann. § 6018.601 (Purdon 1988). In addition, plaintiffs raise Pennsylvania common law theories of negligence, failure to disclose a latent defect, public nuisance, and civil conspiracy. Jurisdiction is based on 42 U.S.C. §§ 6972, 9607, and 9613(b), and 28 U.S.C. § 1331. This court has jurisdiction over the state causes of action under principles of pendent jurisdiction.

Defendant Rudolph filed a third-party complaint which third-party defendant Hough/Loew now seeks to dismiss. According to Rudolph's third-party complaint, in 1981 Rudolph entered into an agreement with Hough/Loew to develop Whiteland Business Park. The agreement provided that Hough/Loew would purchase the property for purposes of development, although Rudolph would retain legal title to the property until settlement was made by Hough/Loew with the subsequent purchasers of each subdivided lot. Rudolph seeks recovery from Hough/Loew under theories of contractual and common law indemnification, breach of fiduciary duty, and negligence. Rudolph also raises a CERCLA claim.

Discussion

Third-party defendant Hough/Loew raise several arguments in support of its motion to dismiss. First, Hough/Loew argues that under F.R.Civ.P. 14¹ and Local Rule 22,² the complaint is untimely because third party plaintiffs filed their complaint approximately nine months after filing their original answer. Third-party defendant asserts that because there is no justification for the late filing, we should dismiss the complaint. We will exercise our discretion to allow the tardy filing.

When a third party complaint is not filed within the period of time permitted as of right, the court has discretion to permit the filing of the complaint. Keister v. Laurel Mountain Development Corp., 70 F.R.D. 10 (W.D.Pa.1976). In exercising its discretion, the court should consider (1) the possible prejudice to the plaintiff; (2) complication of issues at trial; (3) probability of trial delay; and (4) timeliness of the motion to implead. O'Mara Enterprises, Inc. v. Mellon Bank, N.A., 101 F.R.D. 668, 670 (W.D.Pa.1983). Because the purpose of Rule 14 is to reduce the multiplicity of litigation, Schwab v. Erie Lackawanna Railroad Co., 438 F.2d 62, 67 (3d Cir.1971), courts have liberally construed it. O'Mara Enterprises, 101 F.R.D. at 670; McGee v. United States, 62 F.R.D. 205, 209 (E.D.Pa. 1972).

First, we do not find that plaintiffs would be prejudiced by the impleader. A number of parties have recently been added to this action, and plaintiffs have recently filed a third amended complaint. Furthermore, plaintiffs have not filed a response to this motion that would indicate that it is prejudiced. Second, we do not find that the impleader would complicate issues at trial. Rudolph's action does not add an unreasonable number of novel factual or legal issues. Third, the impleader will not delay the trial, as discovery is still in its early stages. Fourth, although the motion is not technically timely, and the justification for the tardy filing is not especially persuasive, this court has treated the time limits for filing a motion for leave to file a third-party complaint as mere guidelines, allowing substantial room for the exercise of discretion. See Hornsby v. Johns-Manville Corp., 96 F.R.D. 367, 369 (E.D.Pa.1982). In the instant matter, Rudolph filed its original motion for leave to file the complaint eight weeks after the expiration of the Local Rule 22(a) ninety-day period, six weeks after receiving the discovery which Rudolph asserts provided the facts that support its claim, and contemporaneously with the answer to plaintiffs' second amended complaint. We agree with Hough/Loew that Rudolph could have filed its complaint in a more timely fashion. However, especially given the still early stage of development of this case, and the lack of prejudice to the plaintiff, the interests of justice suggest that we refuse to dismiss Rudolph's complaint for lack of timeliness.

Hough/Loew also argues that we should dismiss the complaint because under F.R.Civ.P. 14(a), joinder is improper. Hough/Loew asserts that allegations of the complaint are either without merit or aver causes of action separate and distinct from plaintiffs' claims against defendant. Rule 14(a) allows a defendant to initiate a third-party action against a person "who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff." The joinder of a third-party claim is appropriate only where the third-party defendant's liability is derivative or secondary. A third-party defendant can not be joined simply because that party is or may be solely liable to the plaintiff. Baltimore & Ohio Railroad Co. v. Central Railway Services, Inc., 636 F.Supp. 782, 786 (E.D.Pa.1986); Feinaugle v. Pittsburgh and Lake Erie Railroad Co., 595 F.Supp. 316, 317 (W.D. Pa.1983); Tesch v. United States, 546 F.Supp. 526, 529 (E.D.Pa.1982). The defendant must show that if he is found liable to plaintiff, the third party may be or will be liable to him. Feinaugle, 595 F.Supp. at 317. It is not sufficient that the third-party claim arises from the same transaction. Baltimore & Ohio Railroad, 636 F.Supp. at 786. In ruling on the proposed joinder, we are bound by the allegations contained in the pleadings. Feinaugle, 595 F.Supp. at 317.

After a review of the pleadings, we find that Rudolph's claims against Hough/Loew are derivative of plaintiffs' claims. Specifically, Rudolph's state law claims relate to the plaintiff's claim of failure to disclose a latent defect. Rudolph alleges that if plaintiffs prove that Rudolph should have known of the existence of hazardous substances on the property in question, or should have informed plaintiffs of the existence of the substances, Hough/Loew's breach of its duty to inform Rudolph of any adverse conditions on the property caused the failure....