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Piccolini v. Simon's Wrecking

ELR Citation: 18 ELR 21326
Nos. No. 86-1059, 686 F. Supp. 1063/27 ERC 1888/(M.D. Pa., 03/22/1988)

The court holds that under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) owners of property adjacent to a hazardous waste landfill may recover their response costs, but not damages of lost property value and income, and the owners may proceed under state law claims of strict liability, negligence, nuisance, and trespass. The court also holds that the statute of limitations is not tolled in this case by the discovery rule and the concealment doctrine. The court first holds that only response costs and not a wider definition of damages are recoverable under CERCLA, based on the definitions in §§101(23) and (24). The court next holds that it has pendent jurisdiction over claims based on state law. A state-law claim of strict liability is available if the adjacent owners can show that the landfill was an abnormally dangerous activity, and a claim of negligence is available if the allegations in the complaint are true. The court next holds that those who generated the waste which was disposed at the landfill may be liable under a nuisance theory, since ownership of the land is not key to liability under nuisance; it is enough that the generators contracted with the landfill operators and knew or should have known of the activities at the landfill. In a footnote, the court accepts a trespass theory on the same reasoning.

The court next holds that the state statute of limitations was not tolled by the inability to ascertain the identities of the generators of the hazardous waste. In general, the statute of limitations begins to run when the injury is sustained. The discovery rule provides an exception to this rule, tolling the statute of limitations until the plaintiff knew or reasonably should have known that he had been injured and that it had been caused by another party's conduct. However, the statute of limitations begins to run even if the plaintiff does not know which other party caused his injury, so the discovery rule does not apply in this case where the plaintiffs knew of the contamination in 1979. Moreover, the court holds, the fact that the hazardous waste drums were buried, thus hiding the labels naming their generators, does not constitute concealment to toll the statute of limitations. The plaintiffs were clearly aware that toxic waste had been buried, and the plaintiffs were thus not led by the defendants from their right to inquire as to the source of their injuries. Finally, the court awaits further facts before deciding whether contamination constitutes a continuing tort, portions of which survive the statute of limitations. The main issue will be whether the injury was permanent or rather a series of separate and recurrent injuries. Generally, where all past and future damages can be presently estimated and recovered in one action, a permanent injury has occurred.

Counsel for Plaintiffs
Mark Cuker
Slap, Williams & Cuker
Suite 960, One Franklin Plaza, Philadelphia PA 19102
(215) 557-0099

David Cherundolo
First Eastern Bank Bldg., Lackwanna & N. Washington Aves., Scranton PA 28503
(717) 961-1414

Counsel for Defendants
James Scanlon
Scanlon, Howley, Scanlon & Doherty
1000 Bank Towers, Scranton PA 18503
(717) 346-7651

Bernd Heinze
Marshall, Dennehey, Warner, Coleman & Groggin
1515 Locust St., Philadelphia PA 19102
(215) 893-3800

Stephen Tasher, John Dean
Donovan, Leisure, Newton & Irvine
1850 K St. NW, Washington DC 20006
(202) 862-4700