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Philadelphia Elec. Co. v. Hercules, Inc.

Citation: 14 ELR 20515
No. No. 82-0690, 587 F. Supp. 144/21 ERC 1785/(E.D. Pa., 02/22/1984)

The court holds the corporate successor to the past owner and creator of a leaking waste site liable to the present owner for abatement of the nuisance posed by the site. The court first holds that Hercules, the corporate successor, is liable for the acts of the Pennsylvania Industrial Chemical Corp. (PICCO), the predecessor that created the site. In the agreement by which Hercules acquired all of PICCO's assets, Hercules expressly assumed PICCO's liabilities, with only limited exceptions, none of which apply. Under Pennsylvania law, Hercules' liability includes claims not apparent at the time of acquisition. Alternately, the court holds that the acquisition was a de facto merger. The court next holds that PICCO created a nuisance for which Hercules is liable to the present landowner. Hercules argues that because the injury did not extend beyond the property containing the objectionable condition, there is no nuisance. The court rejects both the factual and legal premises of the argument. The effects of the pollution extend beyond the property lines, and under Pennsylvania's Clean Streams Law and common law, an owner or former owner is liable for abatement of any condition on land that pollutes water. Hercules argues that under RESTATEMENT (SECOND) OF TORTS §§ 352 and 353, a vendor is not liable for dangerous conditions unknown at the time of sale. The court holds that § 840A, which makes a vendor liable for any nuisance continuing after sale, controls. Finally, the court holds that an injunction ordering abatement was proper relief, and that although the pleadings did not expressly call for an injunction, Hercules was not prejudiced by the award since it had ample notice before and during trial that injunctive relief was being considered.

Counsel for Plaintiff
Joseph M. Donley
Kittredge, Kaufman & Doney
8th Floor, N. American Bldg., 121 S. Broad St., Philadelphia PA 19107
(215) 732-2700

Counsel for Defendant
Joseph G. Manta
Frumkin & Manta
Suite 1818, Three Penn Ctr. Plaza, Philadelphia PA 19102
(215) 988-0777